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2019 Supreme(HP) 1182
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Dharam Chand Chaudhary, Vivek Singh Thakur, JJ.
Bobby Bhumak - Appellant
Versus
State of H.P. - Respondent
Cr. Appeal No. 298 of 2016
Decided On : 11-12-2019
Advocate Appeared:
For the Petitioner:Mr. Ajay Kumar Lahota, Advocate.
For the Respondent:Mr. Sunny Dhatwalia, Assistant Advocate General.
The main legal point established in the judgment is the requirement for the prosecution to present tangible, reliable, and convincing evidence to establish guilt beyond a reasonable doubt in cases of criminal offenses.
Headnote:
Rape - Indian Penal Code - Sections 376, 506 - The judgment discusses the prosecution's case against the convict-appellant, who is the father of the prosecutrix, for the commission of rape and criminal intimidation. The court analyzes the evidence, including the testimony of the prosecutrix, corroborative witnesses, medical evidence, and scientific evidence such as DNA profiling. The court finds discrepancies and inconsistencies in the prosecutrix's testimony, medical evidence, and scientific evidence, leading to doubt about the veracity of the prosecution's case. The court concludes that the evidence does not establish the guilt of the accused beyond a reasonable doubt and acquits the accused.
Fact of the Case:
The case involves the prosecution of the convict-appellant, who is the father of the prosecutrix, for the commission of rape and criminal intimidation against the prosecutrix. The prosecutrix alleged that her father raped her and threatened her with dire consequences. The prosecution presented evidence including the prosecutrix's testimony, corroborative witnesses, medical evidence, and scientific evidence such as DNA profiling.
Finding of the Court:
The court found discrepancies and inconsistencies in the prosecutrix's testimony, medical evidence, and scientific evidence, leading to doubt about the veracity of the prosecution's case. The court concluded that the evidence did not establish the guilt of the accused beyond a reasonable doubt.
Issues: The main issues in the case revolved around the credibility of the prosecutrix's testimony, the reliability of medical evidence, and the conclusiveness of scientific evidence such as DNA profiling.
Ratio Decidendi: The court applied the principle that in cases of doubt, the benefit of doubt should be extended to the accused. It emphasized the need for tangible, reliable, and convincing evidence to establish guilt beyond a reasonable doubt.
Final Decision: The court acquitted the accused/appellant, setting aside the judgment and sentence imposed by the lower court. The court ordered the discharge of bail bonds and the refund of any fine deposited by the appellant/accused.
JUDGMENT :
Vivek Singh Thakur, J.
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 506 of the Indian Penal Code, whereby convict-appellant, who is father of the prosecutrix, has been convicted under Sections 376 and 506 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 Rs.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.
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).
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
