BOBBY BHUMAK Vs. STATE OF H.P.

JUDGEMENT

(1.) 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).