MAKHAN SINGH Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) THIS jail appeal has been preferred by the appellants, against their conviction and sentence, recorded by Addl. Sessions Judge I F. T. C. , Udham Singh Nagar vide judgment and order dated 31-5-2004, in S. T. No. 330/2003, whereby both the appellants were con victed U/s 376 I. P. C. and sentenced to ten years R. I. and fine of Rs. 5000/- each and in default of payment of fine to further undergo R. I. for one year. The accused/appellants were however acquit ted. from the charges U/ss 323, 504, 506 I. P. C. levelled against them.

(2.) BRIEF facts giving rise to this ap peal are that Jagtar Singh and his sis ter Shimali Kaur moved a written com plaint, Ext. Ka'. 1 before the S. D. M. Ram Nagar, District Nainital with the allega tions that accused Makhan Singh is the father of complainant Shimali Kaur and the accused Phumman Singh is her un cle. After the death of her mother, both these accused had bad-eye on her for their lust. It was also alleged that the accused used to extract illicit liquor. After taking liquor they used to beat and ill-treat the complainant and her brother and sisters. It was also alleged that the accused persons committed forcible rape upon Shimali Kaur due to which she became pregnant. Jagga Singh, brother of the prosecutrix resides at the house of her maternal grandfa ther in village Tumadia Daam RS. Ram Nagar due to the fear and cruelty com mitted on him by the accused persons. When he came to know about the of fence committed by the accused per sons, he came to Shimali Kaur to fetch her and his younger brother and sisters on 30-/-2003. The accused also beat him. The accused persons thereafter came at the house of maternal uncle and threatened to kill them. The S. D. M. Ramnagar directed the S. O. to investi gate the matter. The S. O. Ramnagar reg istered case against the accused persons vide entry in the G. D. , Ext. Ka-6. S. I. N. R Singh Chauhan investigated the case. He visited the spot and prepared site- plan Ext. Ka. 7. Km. Shimali Kaur was got medically examined. On 13-10-2003 the prosecutrix was given in the Supurdagi of her maternal grandfather, and prepared memo of supurdagi, Ext. Ka. 8. After completing the investigation, the I. O. submitted charge sheet, Ext. Ka. 9 against the accused persons.

(3.) P. W. I, Km. Shimali is the prosecutrix of the case. She has stated on oath that her mother had died 5-6 years ago. She has deposed that she lived with her father the accused Makhan Singh and her uncle accused Phumman in village Bannakheda, Bajpur. Her brother Jagga used to live near Tumadia Daam. She has specifi cally deposed that her father and uncle, the accused persons, subjected her to forcible rape many times. She also deforcible that her house is situate in an iso lated place in the jungle and there is no neighbouring village.