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2006 Supreme(UK) 453
2007 N.C.C. 10
UTTARANCHAL HIGH COURT
Hon’ble Mr. Justice B.C. Kandpal
MAKHAN SINGH & ANRS. – Appellant
Versus
STATE OF UTTARANCHAL – Respondent
Criminal Jail Appeal No. 194 of 2004
Decided on : 19.08.2006
For the Appellant : Mr. L.K. Tewari, Amicus Curiae
For the Respondents: Mr. P.S. Soan, A.G.A. for the State
Headnote:Indian Penal Code – 1860 – Section 376 – Appellants convicted under section 376 IPC – Appeal against conviction – Prosecutrix deposed that she used to reside with her father – Her real uncle was also living with her father – The house of the prosecutrix is situate in an isolated place in the jungle and there is no village nearby – One year before from the date of the lodging of the report his father and her uncle respectively used to commit rape upon her – Both appellant also threatened the prosecutrix with dire consequences – As a result of which she became pregnant – When her brother came to her house she narrated the incident to him – Her brother could take her secretly to the house – And only then the F.I.R. under Section 376 I.P.C. was lodged – Her brother corroborated her testimony – In medical report pregnancy was confirmed – In view of aforesaid situation it is quite clear that the prosecutrix will not unnecessarily implicate her father and real uncle in such a gruesome crime leaving aside the actual culprit – Appeal is dismissed. (Para 15, 22, 29)
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¼izLrj 15] 22] 29½
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 convicted 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 acquitted from the charges U/Ss 323, 504, 506 I.P.C. levelled against them.
2. Brief facts giving rise to this appeal are that Jagtar Singh and his sister Shimali Kaur moved a written complaint, Ext. Ka. 1 before the S.D.M. Ram Nagar, District Nainital with the allegations that accused Makhan Singh is the father of complainant Shimali Kaur and the accused Phumman Singh is her uncle. 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 grandfather in village Tumadia Daam P.S. Ram Nagar due to the fear and cruelty committed on him by the accused persons. When he came to know about the offence committed by the accused persons, he came to Shimali Kaur to fetch her and his younger brother and sisters on 30.7.2003. 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 investigate the matter. The S.O. Ramnagar registered case against the accused persons vide entry in the G.D., Ext. Ka-6. S.I. N.P. 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. On committal of the case, the learned Sessions Judge framed charges U/Ss 376, 323, 504 and 506 I.P.C. The accused pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case produced PW-1, Km. Shimali, the prosecutrix, PW-2 Jagga Singh, brother of the prosecutrix, PW-3, Dr. Nupur Sinha, PW-4, Dr. Harish lal, Radiologist, PW-5 Mahendra Nath Sharma and PW-6, S.I. M.P.S. Chauhan, the I.O. of the case.
5. PW-1, 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 specifically deposed that her father and uncle, the accused persons, subjected her to forcible rape many times. She also deposed that her house is situate in an isolated place in the jungle and there is no neighbouring village.
6. PW-2, Jagga Singh has deposed that his mother had died five years ago. The accused had turned out him from the house after beating him and he went at the house of maternal grandfather and he is living there. He further deposed that his sister Shimali was living with the accused persons. When this witness went to his sister, then she told him about the offence of rape committed on her by his father and uncle the accused persons. This witness brought Km. Shimali to Ramnagar and there he got her medically examined by the doctor. He also deposed that he had given application at Ramnagar.
7. PW-3 Dr. Nupur Sinha has medically examined Km. Shimali on 5.8.2003 in Govt. Hospital Ramnagar. According to this witness Km. Shimali was having six months pregnancy at the time of her examina
