Himachal Pradesh High Court
Bobby Bhumak vs State Of H.P on 11 December, 2019
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
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 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 `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 ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 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). ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 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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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 ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 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 ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 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.::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 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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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 ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 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 ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 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. ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 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 that it was her first experience of sexual assault by anybody and her father did not give her anything to eat or drink before commission of the act and she experienced pain during the act. It was noticed by PW-17 Dr. Arti Sareen that prosecutrix was a young girl of average built, conscious, co-operative, well oriented to time, place and person with normal gait. No sign of any injury over her body was found. There was no tenderness, no sign of injury around pubic hair, lower thigh, upper thigh, lower abdomen, perianal region or private parts. No bruise/injury was seen on well developed labia majora and labia minora and old, well healed, hymen tag was seen with irregular margins. No fresh injury, bleeding or discharge was seen. On examination of P/V, it was noticed that it easily admitted two fingers and there was no tenderness, bleeding or discharge. Similarly, on examination, P/S cervix and vagina was healthy with no tenderness, injury, bleeding or discharge.
25. From the aforesaid observation, it is evidently clear that it was not her first encounter to the sexual intercourse. Further, in her allegation she had claimed that when she was earlier violated by her father, she was studying in 10th class, but the matter was hushed up in the family despite disclosing it to her mother as well as aunt (bua) Kamlesh, but at the time of narrating history to the doctor she has claimed that incident dated 16.10.2014 ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 12 Cr. Appeal No. 298 of 2016 was her first encounter to sexual assault and she was feeling pain during the act. There is no corresponding injury or any other medical evidence noticed by the doctor on her person so as to substantiate her claim. In her statement .
Ex. PW-1/C, prosecutrix has deposed that immediately after the alleged incident, her fiancé had called her and she had disclosed the incident to him, but for the reasons best known to prosecution, the said fiancée of the prosecutrix has neither been cited as a witness nor has been examined in the Court. It is also noticeable that the said fiancé Mr.Ramanjot Singh, of the prosecutrix is none else, but husband of prosecutrix with whom prosecutrix has solemnized marriage on 4.11.2014 within three weeks after the incident. This marriage was facilitated by PW-16 Neelam. It is also admitted fact that before solemnization of marriage, prosecutrix and Ramanot Singh (now her husband) were knowing each other since 1½ year and they were well acquainted with each other prior to marriage.
26. Singular and/or minor discrepancy, contradiction or inconsistency may not be fatal to the prosecution case, but cumulative effect of all these discrepancies, inconsistencies and contradictions referred supra, read with other evidence on record, which instead of verifying the testimony of prosecutrix, has created further doubt about its veracity, leaves us with no other option, but to conclude that her testimony cannot be relied, being not sufficient, to upheld the conviction of convict/appellant. As a matter of fact, for settled law, sole testimony of prosecutrix, can be relied upon to convict the accused, in case it inspires confidence and is acceptable in Court as reliable, cogent and trustworthy and in such eventuality no corroboration would be required to rely her solitary evidence for convicting accused, unless there are compelling reasons, necessitating the Court for corroboration of her statement, as corroboration of testimony of prosecutrix, as a condition for judicial reliance, is not a requirement of law, but is a guidance of prudence ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 13 Cr. Appeal No. 298 of 2016 under the given facts and circumstance and further, minor contradiction, inconsistencies or discrepancies should not be a ground for throwing out a otherwise reliable prosecution case. It is also settled law of land that .
prosecutrix, a victim of offence of rape, is not an accomplice after the crime and her testimony has to be appreciated on the principle of probabilities, as much as testimony of any other witness. However, if it is difficult to accept the version of prosecutrix on its face value, Court may search for evidence, direct or circumstantial, which may lend assurance to her testimony (see Manoharlal Vs. State of Madhya Pradesh, (2014) 15 SCC 587 and Narender Kumar Vs. State (NCT of Delhi), (2012) 7 SCC 171).
27. As discussed above, victim of rape is not an accomplice and there is no rule of law that the testimony of prosecutrix cannot be acted upon without corroboration in material particulars, rather she stands at a higher pedestal than an injured witness. However, at the same time, if it is difficult to accept the version of prosecutrix on its face value, there may be necessity for corroborative evidence, direct or circumstantial, for lending assurance to her testimony. Where no undue importance is to be attached to minor inconsistencies, there is always necessity for assurance from other surrounding evidence in case of serious infirmities and inherent inconsistencies in the evidence of prosecutrix. (See Mukesh and Another Vs. State (NCT of Delhi) and others, 2017 (6) SCC 1).
28. In these circumstances for discussion supra, in present case conviction cannot be upheld on the basis of sole testimony of prosecutrix. Therefore, we would proceed to assess remaining relevant evidence on record relied upon by the prosecution to corroborate the allegations of the prosecutrix.
29. Apart from the testimony of PW-1 prosecutrix, there is one set of witnesses, namely, PW-2 Manoj Kumar (brother of prosecutrix), PW-12 Sunita ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 14 Cr. Appeal No. 298 of 2016 (neighbour), PW-16 Neelam (aunt i.e. tai of prosecutrix) and PW-20 Monika (neighbour), whose oral deposition may be relevant under Section 6 of the Indian Evidence Act, by applying the rule of res gestae. Another set of .
evidence is medical evidence and besides it, scientific evidence is also there. Prosecution has put reliance on medical evidence i.e. MLC Ex. PW-17/A of prosecutrix, duly proved and explained by PW-17 Dr. Arti Sareen in her deposition. Further reliance has been placed on scientific evidence received from the Forensic Science Laboratory, with respect to chemical analysis of clothes, pubic hair, low and high vaginal swabs, vaginal slides, perianal swab and bed sheet in Ex. PW-19/G, chemical analysis of sample head hair, sample pubic hair, blood sample and underwear of accused in report Ex. PW- 19/H and result of DNA profiling Ex. PW-19/J arrived on the basis of DNA of prosecutrix and the accused, comparing it from DNA obtained from the clothes, swabs, slides and blood samples of prosecutrix and convict/appellant.
30. In present case, there are serious discrepancies in version of prosecutrix recorded in statement under Section 154 Cr.P.C. Ex. PW-1/A, statement under Section 164 Cr.P.C. Ex. PW-1/C and deposition in the Court by omitting to mention the fact in statement Ex. PW-1/A and deposition in the Court in examination-in-chief, firstly, about her talks with her fiancé, immediately after the alleged commission of offence, but stating so in Ex. PW- 1/C. It was not such a fact which could have been omitted to be narrated to the police at the first instance and also could have forgotten in her deposition in the Court, particularly when she had admitted the same in her cross- examination. Secondly, on one hand, prosecutrix has been alleging violation of her person by her father, at earlier time also, when she was in 10th class, but on the other hand, she reported to the Medical Officer that it was her first encounter with the sexual intercourse. However, her claim of first intercourse with such an activity does not find support from the medical evidence, i.e. her ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 15 Cr. Appeal No. 298 of 2016 MLC Ex. PW-17/A. Thirdly, she is silent about any injury caused to her during forcible act of her father ravishing her, but in her deposition in the Court, she has claimed such injuries on her body. Whereas, as recorded in MLC Ex.
.
PW-17/A, no external or internal injury was found on her body at the time of her medical examination. There are also inconsistencies and contradictions about the time, period and reason of absence of her mother from residence of the family at Shimla. Finding these inconsistencies irreconcilable there is certainly necessity for corroborative evidence before arriving at final conclusion. As discuss supra, prosecution has relied oral version of witnesses, medical examination of victim and scientific evidence to substantiate version of prosecutrix. We will discuss these three sets of evidence one by one.
31. PW-12 Sunita, has not lent her support to the prosecution case and she was declared hostile for resiling from her previous statement. In her cross-examination, though she has admitted the large gathering in the house of accused on 17.10.2014, but she has refused to have received any information about ravishing prosecutrix by her father i.e. convict/appellant. She has also refused to making of calls from her mobile phone to PW-2 Manoj Kumar (brother of prosecutrix) and PW-3 Rajani (mother of prosecutrix).
32. PW-2 Manoj Kumar in his examination-in-chief has stated that he had gone to his workplace on 16.10.2014 and had returned at 11:00 A.M. on the next morning i.e. 17.10.2014 as he had stayed in the house of Varun Kuthiala, his employer, on 16.10.2014 on account of workload of Deepawali season and on 17.10.2014 after receiving information from PW-12 Sunita @ Anita, their neighbour, about illness of his sister (prosecutrix) he came to home, but found the house locked and thereafter his Anita aunt has called him to DDU Hospital, Shimla, where he had met Anita aunt and PW-16 Neelam, his Tai, accompanying his sister in the hospital and it was told to him ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 16 Cr. Appeal No. 298 of 2016 that his father had committed sexual intercourse with his sister. In cross- examination, contrary to the claim of prosecutrix, he has denied the strained relationship between his father and mother and has admitted that his mother .
had been visiting his material grand mother on account of her serious ailment i.e. blood cancer and that he and his brother had taken dinner on 16.10.2014 at about 10-10:15 P.M. at home, which is a new fact to the case, as according to the prosecutrix, there was none present at home, except her and her father on the date of incident. Contrary to the claim of prosecutrix, and also his own version stated in examination-in-chief, this witness (PW-2) has further stated in cross-examination that on 16.10.2014, he and his brother Pardeep had stayed in their own house and had left for workplace on 17.10.2014 at 4:30 A.M. and further that he was never told by the prosecutrix about any incident happened prior to 16.10.2014. He has also admitted that his mother had no extramarital affair with Sagar or any other person but he has further added that his parents had been objecting the relation of prosecutrix with Ramanjot (fiancé of prosecutrix) and prosecutrix was threatening to teach a lesson to her parents and she had also uttered the same words in DDU hospital on 17.10.2014 and the prosecutrix had remained absent from home for whole night on 9.10.2014 on the eve of her birthday and Karwa Choth. He has further stated that his sister had been using to wear, clothes of his mother and his father had asked the prosecutrix not to implicate him in a false case and had agreed for her marriage with Ramanjot. Lastly, he has stated that his family was not having cordial relations with Monika (PW-20) and Neelam (PW-16). This witness is blowing hot and cold in one breath. He has contradicted himself with respect to his presence and absence at home in the night of 16.10.2015 and has demolished the prosecution case by deposing contrary to the case of prosecutrix, therefore, statement of this witness cannot be relied upon either way. Further, he has brought on record certain new ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 17 Cr. Appeal No. 298 of 2016 facts with respect to relations of prosecutrix and Ramanjot and differences in the family on that count.
33. PW-20 Monika has endorsed the claim of prosecutrix about .
narration of incident to her at 9:30 A.M. in the month of October, 2014, whereupon she had called PW-16 Neelam, Tai of prosecutrix, residing at Suji Line, Subji Mandi, Shimla and according to her, prosecutrix was taken to hospital by her and PW-16 Neelam. In cross-examination, she has stated that sons of accused had also reached after arrival of PW-16 Neelam, but no one called the police and prosecutrix went to DDU hospital along with her aunt and 2-3 more people and she was lifted by some neighbour up to the Hospital.
34. PW-16 Neelam has stated that she had received information from in-laws of her son that accused had committed sexual intercourse with prosecutrix, whereupon she went to the house of accused and found a lot of people gathered there and noticed prosecutrix was weeping badly who was not able to stand and on inquiry by her, prosecutrix had narrated the entire episode to her. According to her, at that time prosecutrix was alone in the house, as her brother had not come back to home. According to her, Kamlesh (bua) aunt of prosecutrix was also called. Thereafter, she (this witness) and Kamlesh had taken the prosecutrix for medical examination. According to this witness, she, brothers of prosecutrix, one Ritu and one Sita were accompanying prosecutrix to the hospital, whereas PW-2 Manoj Kumar has stated that PW-16 Neelam and one Anita were accompanying the prosecutrix in the hospital. According to PW-5 constable Varinder, PW-16 Neelam, two brothers of prosecutrix were present in the hospital. PW-8 LHC Ramesh Lata has stated that prosecutrix was being accompanied by her aunt PW-16 Neelam and she did not remember about presence of any other person along with her. According to PW-19 ASI Mohinder Lal, prosecutrix ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 18 Cr. Appeal No. 298 of 2016 had gone to the hospital on foot along with her aunt PW-16 Neelam and lateron he has stated that there were many people accompanying the prosecutrix to DDU hospital and he was not able to name those persons, .
except PW-16 Neelam. In examination-in-chief, PW-16 has stated that, when she arrived there, prosecutrix was all alone at home and brothers of prosecutrix had not come to the house before her arrival. According to her, police was called by prosecutrix, which is contrary to the prosecution story, as recorded in DDR Ex. PW-7/A that police was informed by the Medical Officer. Prosecutrix has admitted that PW-16 Neelam was not having good relations with her family, whereas PW-16 Neelam has denied the said fact.
35. PW Kamlesh (Bua of prosecutrix), PW Rajani (mother of prosecutrix), Pardeep Kumar (brother of prosecutrix) and Varun Kuthiala (employer of son of accused) were not examined but given up being won over by the accused. PW-4 Manoj Kumar appears to be in a fix. On one side he has a story, narrated to him by his sister and on the other hand his earring father is there. Therefore, his dilemma can be understood. There is evidence on record that PW-16 Neelam was having inimical relations with family of accused. She and PW-20 Monika, who is neighbour, have endorsed the fact that they were informed by prosecutrix about commission of offence, whereas another neighbour PW-12 Sunita has not lent support to claim of prosecutrix. None of these witnesses, including brothers and mother of prosecutrix was present before or after the alleged occurrence and as per prosecution case they were informed by prosecutrix in this regard. Their source of information is prosecutrix. Therefore, application of their evidence mainly depends upon credibility of prosecutrix.
36. For discussion supra, version of prosecutrix requires corroboration and for this purpose we have to advert to scientific evidence along with medical examination of prosecutrix and accused. Evidence with ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 19 Cr. Appeal No. 298 of 2016 respect to medical examination of prosecutrix, Ex. PW-17/A, relied upon by the prosecution, i.e. MLC as already discussed herein before, instead of substantiating the claim of prosecutrix, is creating doubt about veracity of her .
testimony.
37. So far as scientific evidence is concerned, in the report Ex. PW- 19/G, blood and semen was not detected on brassiere, sweater, pubic hair, low vaginal swab, vaginal slides and nails of prosecutrix. However, human semen was detected on pajami, perianal swab, high vaginal swab of prosecutrix and bedsheet taken in possession from bed whereupon alleged incident had occurred. Presence of semen on pajami, perianal swab and bedsheet, more particularly high vaginal swab is suggesting that sexual intercourse has taken place. But in absence of credible oral evidence this much evidence is not sufficient to conclude that it was accused/father of prosecutrix who was involved in sexual intercourse.
38. In report Ex. PW-19/H, human semen was detected on underwear of convict/appellant, but this report is of no bearing on the case, as the appellant/convict was apprehended on 30.10.2014 after 14 days of the alleged incident and there is no evidence on record to suggest that the accused/appellant was wearing the said underwear on the date of incident.
39. In view of aforesaid evidence it would be necessary to examine result of DNA profiling. Brassiere, sweater, pajami, perianal swab, high vaginal swab, blood sample, nails of prosecutrix, bedsheet and blood sample of accused/appellant were subjected to biology and serology examination for DNA profiling in State Forensic Science Laboratory. Conclusion thereof is contained in Ex. PW-19/J (reproduced supra).
40. A Constitution Bench of the Apex Court in Mukesh's case supra, after considering various pronouncements, has held that DNA report deserves to be accepted, unless it is absolutely dented and for non-acceptance of the ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 20 Cr. Appeal No. 298 of 2016 same, it is to be established that there had been no quality control or quality assurance and if the sampling is proper and if there is no evidence of tampering of samples, the DNA report is to be accepted. In present case, .
there is nothing on record so as to disbelieve or reject the DNA report Ex. PW-19/J, relied upon by the prosecution, but on perusal thereof it is clear that its conclusion (reproduced supra) leads us nowhere. As per discussion hereinafter it does not give definite conclusion that it was only accused who is the person involved in commission of sexual activity with prosecutrix.
41. As per first conclusion in Ex. PW-19/J, bedsheet had yielded a mixed autosomal STR DNA profile from which two autosomal STR DNA profiles could be identified. Out of these two DNA profiles, one DNA profile matched with the autosomal STR DNA profile obtained from blood sample of accused/appellant and another DNA profile matched with the autosomal STR DNA profile obtained from blood sample of prosecutrix. Prosecutrix and the appellant/convict are daughter and father, residing in a house consisting of one room wherein sharing and using the bed is commonly usual. Therefore, there is nothing new discovered in first conclusion, as it was but natural to find the traces of DNA profiles of the accused and his daughter in the bedsheet of a bed of single room house of the family.
42. As per second conclusion of Ex. PW-19/J, autosomal STR DNA profile was obtained from pajami, perianal swab, high vaginal swab of prosecutrix matches with the autosomal STR DNA profile obtained from blood sample of prosecutrix. This conclusion also does not lead to involvement of appellant/convict in the alleged offence as even in observation part of report there is no reference that Y-STRS/autosomal STR obtained from pajama, parineal swab, high vaginal of prosecutrix matched with that of accused, rather it is observed that the DNA isolated from Ex.-1b (pajama, prosecutrix), showed amplification of Y-STRs with Powerplex 23® PCR Amplification Kit; ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 21 Cr. Appeal No. 298 of 2016 however the profile was mixed from which nothing specific could be inferred and the DNA isolated from Ex.-2 (perineal swab, prosecutrix) and Ex.-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.
43. As per conclusion III of Ex. PW-19/J from the blood sample of accused a complete Y-STAR DNA profile was obtained. As per conclusion IV DNA isolated from pajami of prosecutrix yielded a mixed Y-STAR DNA, profile from which nothing specific could be inferred. According to conclusion V of Ex. PW-19/J, DNA isolated from perineal swab, high vaginal swab of prosecutrix could not generate Y-STAR DNA profiles. Therefore, there is no conclusion in DNA profiling that autosomal STR/Y-STAR DNA profile obtained from the blood sample of accused, were also found on pajami, perineal swab, high vaginal swab of prosecutrix. Being father and daughter, there was strong possibility of presence of traces of their DNA profiling on the bedsheet. It is not mentioned in report that these DNA profiling were obtained from semen on the bedsheet and it is also not concluded in the report that on the basis of results of DNA profiling it can be inferred that father was involved in sexual activity with his daughter (prosecutrix). Therefore, the DNA analysis relied upon by the prosecution does not lead to a conclusion that it was only and only accused-father who had indulged in intercourse with prosecutrix. Therefore, it cannot be said that in all probabilities, the human semen detected on pajami, parineal swab, high vaginal swab of prosecutrix and bedsheet, was of the accused.
44. Ex. PW-19/J, report of State Forensic Science Laboratory is under the hand of a Government Scientific Expert i.e. Assistant Director of State Forensic Science Laboratory, is a report of analysis of DNA isolation carried out from exhibit duly submitted to him and analysis of the same during ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 22 Cr. Appeal No. 298 of 2016 investigation under Cr.P.C. is admissible under Section 293 Cr.P.C. and thus can be used as evidence in the trial and contents thereof can be taken into consideration for determining guilt or innocence of accused. There is nothing .
on record to establish that it is absolutely dented or there had been no quality control or quality assurance or samples were tampered, so as to reject the same. However, conclusion of this report is not conclusive so as to convict the accused for commission of offence beyond reasonable doubt. Conviction can be based on DNA report if it undoubtedly assures involvement of accused in commission of offence and if it is unambiguous, indubitable and demonstrably manifest commission of offence by the accused only. But vague and inconclusive DNA report like present one, cannot be a basis for conviction, which has left us in the lurch. Exhibits for analysis are submitted to State Forensic Laboratory along with copy of FIR and MLC etc. Therefore, purpose of analysis is always in the knowledge of expert. Therefore, it is expected from expert to draw and submit a clear, unambiguous, indubitable and demonstrably manifest conclusion in DNA profiling reports which are purely based on deep knowledge of expert which is not expected to be in the knowledge of common man including Judge except those who studied the subject. In present case not only observations, but conclusions are also not expressing any definite opinion about involvement or possibility of involvement or ruling out possibility of involvement of the accused. Therefore, this report Ex. PW-19/J is of no help to the prosecution. In DNA profiling report Ex. PW-19/J, in observations as well as in conclusions, there is reference of obtaining autosomal STR DNA from bed sheet Ex.-10, but it is clear that this autosomal STR DNA was obtained from semen detected on the bedsheet or somewhere else from bed sheet. Specific finding with regard to presence or absence of autosomal STR DNA of accused in semen found on ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 23 Cr. Appeal No. 298 of 2016 exhibits/samples/swabs belonging to prosecutrix would have been a conclusive proof of his involvement or innocence.
45. According to prosecutrix, she was ravished forcibly by her father .
at about 10-11 P.M, who had left his house at 5:30 A.M. in the next morning and due to fear she remained in the bed and waited for dawn for disclosing the incident to others. Contradicting herself, she has also deposed that she had informed about it to her fiancé during the night at about 11:30-12:00 o- clock and when she was talking with her fiancé, her father had again expressed desire to sleep with her, but went to sleep on his bed, when subbed by her. If it was so, then what prevented her to raise hue and cry during night is not clear. Even if, it is assumed that she surrendered before her father, there is no explanation, why she remained silent from 9:00/10:00 A.M. till, as alleged, she disclosed it to neighbour Aunts, as she was not a small kid, but was grown up young lady of 20 years, having her fiancée in her regular contact since last 1½ years, with whom she had married within three weeks of the alleged incident, and was also in touch immediately after the alleged incident. Even if, it is presumed that PW-2 Manoj had acceded to the defence story in his cross-examination in order to save his father, his job and to avoid loss of a earning family member and that PW-12 Sunita did not support prosecution case under influence of her husband who is alleged to be friend of accused, even then also there is no credible, tangible, reliable and convincing testimony of prosecutrix and other evidence on record, so as to upheld the conviction of the appellant/convict.
46. Medical evidence is a corroborative piece of evidence to strengthen the case based on the substantive evidence and in absence of cogent and credible substantive evidence, medical evidence cannot be made basis for recording conviction. However, if there is any inconsistency in medical evidence, but there is tangible and reliable substantive evidence on ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 24 Cr. Appeal No. 298 of 2016 record, conviction can be recorded on the basis of substantive evidence irrespective of nature of medical evidence, unless medical evidence on record rules out the prosecution case in its entirety. In present case claim of .
prosecutrix has become doubtful not only by the medical evidence, but on account of discrepancies in her own changing versions depicted in different depositions.
47. It is claimed by the prosecutrix that her father was continuously asking her not to disclose the matter to neighbours and not to report to the police and was begging pardon by calling her on mobile phone. Investigating Agency for the reason best known to it has not placed on record any call detail records of mobiles of accused and/or of prosecutrix to substantiate the said plea, which was an important and relevant piece of evidence to evaluate testimony of the prosecutrix.
48. From the aforesaid discussion, it is clear that learned trial Judge has failed to appreciate the evidence on record in its right perspective and has committed a mistake by convicting the accused/appellant as prosecution has failed to prove its case beyond reasonable doubt by leading cogent, reliable, tangible and convincing evidence. As evident from the aforesaid discussion, on the basis of evidence on record, it cannot be said that in all probabilities the convict/appellant has committed the alleged offence, as material on record is not establishing the prosecution case beyond all reasonable doubts. It is cardinal principle of criminal jurisprudence that where there is doubt, the benefit of doubt is to be extended to the accused, therefore, on account of benefit of doubt, accused/appellant is entitled for acquittal.
49. Accordingly, the appeal is accepted and impugned judgment dated 3.5.2016 and sentence imposed vide order dated 5.5.2016, by Additional Sessions Judge-II, Shimla, H.P. is set aside and accused is acquitted. Bail bonds stand discharged. Fine, if any, deposited by the ::: Downloaded on - 11/12/2019 21:03:05 :::HCHP 25 Cr. Appeal No. 298 of 2016 appellant/accused shall be refunded to him in accordance with law, in view of his acquittal. Record be sent back. Accused/appellant be released forthwith, if not required in any other case. Release warrant be prepared accordingly.
.
Appeal stands disposed of, so also pending application, if any.
(Dharam Chand Chaudhary) Judge.
(Vivek Singh Thakur), th 11 December, 2019 Judge.
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