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Bobby Bhumak vs State Of H.P on 11 December, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 298 of 2016

Reserved on: 20.11.2019

.

Date of decision: 11.12.2019

Bobby Bhumak. …Appellant

Versus
State of H.P. …Respondent

Coram

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.

Whether approved for reporting?1 Yes.

For the Petitioner: Mr.Ajay Kumar Lahota, Advocate.

For the Respondent: Mr.Sunny Dhatwalia, Assistant Advocate General.

Vivek Singh Thakur, Judge.

Present appeal has been preferred by convict-appellant against

the judgment/order dated 03.05.2016/ 05.05.2016, passed by Additional

Sessions Judge-II, Shimla, H.P., in Sessions Trial No.6-S/7 of 2015, titled as

State of Himachal Pradesh vs. Bobby Bhumak, in case FIR No. 135 of 2014,

dated 17.10.2014, registered at Police Station Sadar, Shimla, H.P., under

Sections 376 and Section506 of the Indian Penal Code, whereby convict-appellant,

who is father of the prosecutrix, has been convicted under Sections 376 and

Section506 IPC for commission of rape with prosecutrix on 16.10.2014 at about 11.00

pm, at their residence and criminally intimidating her with dire consequences

on disclosure of commission of offence to someone else and has been

sentenced, under Section 376 IPC, to undergo rigorous imprisonment for a

period of ten years and to pay a fine of `1,00,000/- (Rupees One Lac) and in

default thereof, to further undergo simple imprisonment for a period of two

years and no separate sentence has been awarded under Section 506 IPC.

Whether the reporters of the local papers may be allowed to see the Judgment? Yes

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2 Cr. Appeal No. 298 of 2016

2. We have heard learned counsel for the parties and have also

gone through the record.

3. As per prosecution case, family of convict-appellant consists of

.

his wife, two sons and one daughter i.e. prosecutrix. Prosecutrix is eldest

child. At the time of alleged incident, convict-appellant was driver in Municipal

Corporation, Shimla, his two sons were working in the shops at Ganj Bazaar,

his wife was not at home since last three months prior to the incident and

prosecutrix, aged 20 years, studied up to +2 standard, was living with father

and brothers. On the day of incident, her two brothers, namely, Manoj Kumar

(PW.2) and Pradeep (not examined) had not come to house and had stayed

in the shops, where they were working, on account of heavy work due to

Diwali Festival. Prosecutrix and her father i.e. convict-appellant were only

family members present in the house and they were sleeping in one and the

same room, but on the separate beds. At about 11.00 pm convict-appellant

went to the prosecutrix and started touching her, which was objected by her

with caution to report it to the police, whereupon, convict-appellant, saying her

to complain as she wished, opened string of her Paijami and after

overpowering her, violated her against her will. At that time, convict-appellant

did not allow the prosecutrix to raise hue and cry by gagging her mouth with

his hand. Next morning, at 5.30 am, convict-appellant left residence for his

job. At about 9.00 am, prosecutrix had disclosed the incident to her

neighbour/Aunt Monika (PW-20) and also to her Aunt (Tai) Neelam (PW-16).

Whereupon, her Aunt, PW-16 Neelam, came to the house of prosecutrix and

enquired her about it and thereafter prosecutrix, accompanying her Aunt and

brothers, went to the hospital. During intervening period, convict-appellant

had made 4-5 calls to the prosecutrix on her mobile begging pardon with

further request not to disclose the incident to neighbours and Tai (Aunt).

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3 Cr. Appeal No. 298 of 2016

4. It is further case of prosecution that earlier also, when prosecutrix

was studying in 10th standard, convict-appellant had violated her and since

then, for about three years, convict-appellant, under influence of liquor, was

.

making sexual assault upon her. At the time of her violation for the first time,

she had disclosed the same to her Aunt (Bua) Kamlesh and her mother but

the matter was hushed up for the sake of family.

5. It is further case of prosecution that prosecutrix had gone to

hospital for her medical examination, whereupon Medical Officer (Casualty)

had informed PW-10 H.C. Yash Pal, deputed in Police Post in the Hospital,

about prosecutrix approaching the hospital alleging herself a victim of rape

and in turn PW-10 H.C. Yash Pal through his mobile phone had made a call

to the Police Station, which lead to recording of G.D. Entry No. 43A (Ex. PW-

7/A) dated 17.10.2014 at 1:30 P.M. by PW-7 Constable Rohit Sharma and

departure of PW-19 ASI Mohinder Lal along with PW-8 LHC Ramesh Lata

and PW-5 Constable Varinder with official camera to the hospital. After

arriving at hospital PW-8 LHC Ramesh Lata under the supervision of PW-19

ASI Mohinder Lal had recorded the statement of prosecutrix under Section

154 Cr.P.C. (Ex. PW-1/A), which was sent by PW-19 ASI Mohinder Lal to

Police Station through PW-5 Constable Varinder for registration of FIR. PW-

18 Inspector Kamaldeep, after receiving the statement Ex. PW-1/A had

registered the FIR Ex. PW-13/A through PW-13 H.C. Vinod. On the same

date i.e. 17.10.2014 on the application Ex. PW-17/A moved by Police, PW-17

Dr. Arti Sarin had conducted the medical examination of victim and had

issued MLC Ex. PW-17/B. Samples of swabs and slides were sent to State

Forensic Science Laboratory (State FSL). After considering the State FSL

report, PW-17 Dr. Arti Sareen opined that there was evidence of recent

sexual intercourse.

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4 Cr. Appeal No. 298 of 2016

6. During investigation, PW-19 along with PW-5 Constable Varinder

and PW-8 LHC Ramesh Lata had visited the spot of incident and through

PW-5 Constable Varinder had videographed the location of occurrence and,

.

vide memo Ex. PW-1/B, in presence of PW-16 Neelam and PW Sanjeev

Kumar (not examined), had taken bedsheet in possession from the bed,

whereon offence was alleged to have been committed.

7. After registration of FIR convict/appellant had disappeared and

was arrested on 30.4.2014 from Punjab from an area falling under jurisdiction

of Balachour and after arrest, he was got medically examined from PW-4 Dr.

Rattan Mahesh Negi, who opined that there was nothing to suggest that

appellant/convict was not capable to perform sexual intercourse and he

issued MLC Ex. PW-4/B.

8. Wearing clothes, vereneal swabs, vaginal swabs and slides,

blood and nail samples and pubic hair of prosecutrix and bedsheet, deposited

in Malkhana during investigation, were send to State FSL by PW-9 H.C. Dila

Ram, Incharge Malkhana Police Station Sadar vide RC No. 167/14, dated

25.10.2014 through PW-5 Constable Varinder on 25.10.2014 which were

deposited in State FSL on the same day.

9. Pubic hair, head hair, blood sample, FTA card, underwear and

blood sample of convict-appellant were sent to State FSL on 5.11.2014 by

PW-9 H.C. Dila Ram through PW-15 HHC Dayanand vide RC No. 176/14

dated 5.11.2014, but the same were not accepted at State FSL for objections

raised by State FSL and thereafter the case property was returned un-

deposited with PW-9 HC Dila Ram. Thereafter, on 7.4.2014, after removing

objection by PW-19 AS Mohinder Lal, it was sent through PW-6 Constable

Ankush vide RC No. 179/14 dated 7.11.2014.

10. PW-3 Kaushyala Verma, a teacher from Arya Girls Senior

Secondary School, has proved on record the School Leaving Certificate of

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5 Cr. Appeal No. 298 of 2016

prosecutrix Ex. PW-3/B, wherein date of birth of prosecutrix has been

recorded as 9.10.1999 and according to her the prosecutrix was studying in

12th class in the year 2014.

.

11. PW-11 Shyam Chassta is the photographer, who had developed

photographs Ex. PW-5/B-1 to Ex. PW-5/B-3, which were taken in the room

i.e. place of occurrence, during investigation.

12. PW-14 Inspector Sanjeev Kumar had prepared the final police

report and submitted it before the Court and on receipt of DNA profiling/final

result Ex. PW-19/G, Ex. PW-19/H and Ex. PW-19/J, from State FSL Junga on

6.1.2015, he had prepared supplementary challan and presented it in the

Court.

13. Prosecutrix is a rape victim. As per prosecution case, there was

none present on the spot, except the prosecutrix and her convict/appellant

father. Prosecutrix, on the next morning of the incident at about 9:00 A.M.

disclosed the commission of offence to PW-20 Monika and thereafter to PW-

16 Neelam and according to Police, the said disclosure also came to

knowledge of PW-2 Manoj Kumar (brother of victim) and PW-12 Sunita alias

Anita, neighbour of prosecutrix. Though, these witnesses are not eye

witnesses, their statements may be admissible under Section 6 of the

Evidence Act.

14. Reliance has also been put by the prosecution on the chemical

analysis report of State FSL. The results of Chemical Analysis report Ex.

PW-19/G is as under:-

“(1) Blood and semen was not detected on exhibit-1a (brassiere,
prosecutrix), exhibit-1c (sweater, prosecutrix), exhibit-1d
(sweater, prosecutrix), exhibit-3 (sample public hair,
prosecutrix), exhibit-4 (low vaginal swab, prosecutrix), exhibit-6
(vaginal slides, prosecutrix) and exhibit-7d (nails, prosecutrix).
(2) Human semen was detected on exhibit-1b (pajama,
prosecutrix), exhibit-2 (perianal swab, prosecutrix), exhibit-5

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6 Cr. Appeal No. 298 of 2016

(high vaginal swab, prosecutrix) and exhibit-10 (bed sheet).
Blood was not detected on the exhibits.

(3) Human blood was detected in exhibit-7a (blood sample,
prosecutrix).”

.

15. Result of Chemical Analyses report Ex. PW-19/H is as under:-

“(1) Blood was not detected on exhibit-2 (sample head hair, Bobby).

(2) Blood and semen was not detected on exhibit-3 (sample public
hair, Bobby).

(3) Human blood was detected in exhibit-4 (blood sample, Bobby).
(4) Human semen was detected on exhibit-5 (underwear, Bobby).

Blood was not detected on the exhibit.”

16. Observations and Conclusion of result of DNA profiling Ex. PW-

19/J are as under:-

Observations:-

“1. Exhibit-1-1 (blood sample on FTA card, Bobby) showed

amplification at all the twenty autosomal STR loci and
amelogemin with Powerplex 21® PCR Amplification Kit.

2. The DNA isolated from Exhbit-1b (pajami, prosecutrix),
Exhibit-2 (perineal swab, prosecutrix), Exhibit-5 (high vaginal

swab, prosecutrix), Exhibit-7a (blood sample prosecutrix) and
Exhibit-10 (bedsheet) slightly degraded DNA, however it was

possible to amplify all the twenty autosomal STR loci and
amelogenin with Powerplex 21® PCR Amplification Kit.

3. A mixed autosomal STR DNA profile was obtained from Exhibit-

10 (bedsheet) from which two components could be identified.
The major component is consistent with the DNA profile
obtained from Exhibit-1-1 (blood sample on FTA card, Bobby)
while the other component is consistent with the DNA profile
obtained from Exhibit-Exhibit-7a (blood sample prosecutrix).

4. Identical autosomal DNA profile was obtained from Exhibit-1b
(pajami, prosecutrix), Exhibit-2 (perineal swab, prosecutrix),
Exhibit-5 (high vaginal swab, prosecutrix) this DNA profile
matches with the DNA profile obtained from Exhibit-7a (blood
sample prosecutrix).

5. Exhibit-1-1 (blood sample on FTA card, Bobby) showed
amplification of Y-STRs with Powerplex 23® PCT Amplification
Kit and a complete Y-STR DNA profile was obtained from it.

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7 Cr. Appeal No. 298 of 2016

6. The DNA isolated from Exhibit-1b (pajami, prosecutrix),
showed amplification of Y-STRs with Powerplex 23® PCR
Amplification Kit; however the profile was mixed from which
nothing specific could be inferred.

.

7. The DNA isolated from Exhibit-2 (perineal swab, prosecutrix)

and Exhibit-5 (high vaginal swab, prosecutrix) did not show
proper amplification with Powerplex 23® PCR Amplification Kit;

hence no Y-STR DNA profiles could be obtained from these
exhibits.

Conclusions:

“I. Exhibit-10 (bedsheet) yielded a mixed autosomal STR DNA
profile from which two autosomal STR DNA profiles could be
identified. Of these two DNA profiles, one DNA profile matches
with the autosomal STR DNA profile obtained from Exhibit-1-1

(blood sample of TFA card, Bobby) while the other DNA profile

matches with the autosomal STR DNA profile obtained from
Exhibit-7a (blood sample prosecutrix).

II. Identical autosomal STR DNA profile was obtained from

Exhibit-1b (pajama, prosecutrix), Exhibit-2 (perineal swab,
prosecutrix), Exhibit-5 (high vaginal swab, prosecutrix) this

DNA profile matches with the autosomal STR DBNA profile
obtained from Exhibit-7a (blood sample prosecutrix).

III. Exhibit-1-1 (blood sample of FTA card, Bobby) showed
amplification with Powerplex 23® PCR Amplification Kit and a

complete Y-STR DNA profile was obtained from it.
IV. The DNA isolated from Exhibit-1b (pajama, prosecutrix) yielded
a mixed Y-STR DNA profile from which nothing specific could
be inferred.

V. The DNA isolated from Exhibit-2 (perineal swab, prosecutrix)
and Exhibit-5 (high vaginal swab, prosecutrix) did not show
proper amplification with Powerplex 23® PCR Amplification Kit;
hence no Y-STR DNA profiles could be generated from these
exhibits.”

17. Want of security in life is as old as the inception of living creature

on the earth. With evolution of civil society, desire for social protection in life

from satanic thoughts and acts has also evolved. Influenced by this quest,

concept of family has been developed by creating responsibilities upon family

members to provide security to each other.

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8 Cr. Appeal No. 298 of 2016

18. In all species, lap of mother is safest heaven. In the human

society also, one feels most secure and shielded under the shelter of mother,

but at the same time, father is the first protector of all members, especially

.

children. Trust in relationship of a child with his/her father is ingrained with its

conception. It is a pious relation providing safest zone to a child at home, but

at the same time, we cannot shut our eyes from some hard realities of certain

incidents being witnessed by the society, where this pious relationship has

been charred and marred by either side, sometimes by commission of father

and/or mother and sometimes by deeds of child.

19. On account of various biological, social and conceptual reasons,

women and children are soft targets for victimization and harassment and not

only they, but everyone, including animals and birds, feel most secured in and

with the family. In recent past, we have come across the cases where father

of daughter has also been found biological father of daughter’s child and

some time victim has suffered sexual assault form not only cousin but real

brother also and there are also instances where for vested personal interests

or under the influence of someone interested, child or wife has made false

accusation of sexual abuse of the child by father/husband. Therefore, despite

having taken note of increasing cases and reporting thereof, related to sexual

child abuse in the family, no presumption can be there for treating the version

of a child or parent to be a gospel truth or a false accusation. Keeping in view

the increasing trend of false accusation as well as child abuse within four

walls of house, the evidence is to be examined with more care and caution

without influencing with the emotions either way.

20. PW-1 prosecutrix is the sole prime witness whose statements,

recorded on three occasions, are on record. First statement was Ex. PW-1/A

recorded in the hospital. Thereafter on 21.10.2014 her statement Ex. PW-

1/C, under Section 164 Cr.P.C., was recorded before the Magistrate and lastly

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9 Cr. Appeal No. 298 of 2016

her statement on oath was recorded in the Court. In her statement Ex. PW-

1/A, she has stated that when her father was trying to violate her she had

warned him to inform the police, whereupon her father had threatened to kill

.

her and being frightened thereof she slept on her bed in the same room and

her father had left the house at 5:30 A.M. and after waiting for morning she

narrated the incident to neighbour Aunt PW-20 Monika. In her another

statement Ex. PW-1/C, she has also stated that after the occurrence her

fiancé had called her and she had informed him about the incident and when

she was talking with him, her father had again come and expressed his desire

to sleep with her again, whereupon she had abused her father, who

thereafter, went to bed after urinating in the bathroom. In her deposition in the

Court, in examination-in-chief, she has stated that when she resisted her

father and warned to lodge complaint with the police, her father had asked her

to do that. In Ex. PW-1/C and deposition in Court, she is completely silent

about the fear as alleged in Ex. PW-1/A, due to which she had slept after the

incident and also about informing the incident to her fiancé and expression of

desire by her father to violate her again as claimed in Ex. PW-1/C. In

examination in chief as well as in statement Ex. PW-1/A, she has stated that

after waiting for morning, she narrated the incident to her neighbour Aunt PW-

20 Monika and thereafter incident was reported to her paternal aunt (Tai) PW-

16 Neelam, but she is silent about telling it to her fiancé during night.

However, in cross-examination, she has stated that she had revealed the

incident to her fiancé at about 11:30-12:00 P.M. and thereafter it was revealed

to PW-20 Monika and PW-16 Neelam. In statement Ex. PW-1/A, reason, for

not reporting the matter to anyone, is fear on account of threat of father to kill

her, whereas in cross-examination in the Court, it is claimed by prosecutrix

that she did not report the matter to neighbour during night time, as she was

not in a position to stand up. As per statement Ex. PW-1/A, her mother had

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10 Cr. Appeal No. 298 of 2016

left the house three months ago, however in statement under Section 164

Cr.P.C. Ex. PW-1/C made within five days of the occurrence, prosecutrix has

stated that her mother was not at home since last five months and she had

.

left the house on account of affair with someone, whereas, in the court,

prosecutrix has stated that her mother had gone to her parental home in the

month of August, 2014.

21. In statement Ex. PW-1/C, prosecutrix has alleged that her

mother was also involved in commission of offence by her father violating her

person as her mother had left her alone at home, whereas, her claim is that

her mother was not at home at least for the last three months. In cross-

examination, she has stated that she was not having cordial relations with her

mother during the period of occurrence for the reason that her mother was

having extramarital affair with one Kashmiri boy, namely, Sagar working in

Shimla. Whereas, in examination-in-chief, she has stated that her mother

had gone and was at her parental home from August, 2014 to 20.10.2014.

On one side she is claiming that her mother is also a conspirator with her

father and on the other hand in cross-examination, she has denied the

suggestion that relation of her mother and father were not strained.

22. In the entire episode PW-16 Neelam, her Aunt (Tai), has lent

support to the prosecutrix and it is also admitted by the prosecutrix, in her

cross-examination, that her aunt Neelam (PW-16) was not having cordial

relations with her parents.

23. It is also stated by prosecutrix in her statements Ex. PW-1/A,

PW-1/C and in her deposition in the Court that at the time of commission of

offence, her father had removed her lower wear and when she tried to cry, he

had gagged her mouth by putting hand on her mouth. At that time she was 20

years old. No evidence of struggle was found in her medical examination.

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11 Cr. Appeal No. 298 of 2016

24. Prosecutrix had approached the hospital for her medical

examination, where she was examined by PW-17 Dr. Arti Sareen, who has

recorded the details of the incident, narrated to her by the prosecutrix, in MLC

.

Ex. PW-7/B issued by her, wherein she has also recorded that on 17.10.2014

prosecutrix came to her for medical examination with alleged sexual assault

by her own father on 16.10.2014 at around 11:00 P.M. and the police was

informed by the hospital staff. It was disclosed by the victim to her that she

(victim) had cried for help, but nobody had come to her rescue. It was further

informed by prosecutrix th

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