Judgment

DUA, J.:- This is an appeal by special leave under Art. 136 of the Constitution. The appellant Gurcharan Singh, his servant Shri Sanjha Ram, Dalip Singh, his wife Smt. Surjit Kaur and Smt. Phullan, wife of one Chaman Lal were tried by the Sessions Judge, Karnal on charges under Ss. 366, 368 and 376, Indian Penal Code. Gurcharan Singh, appellant, with whom alone we are concerned in this appeal was charged with commission of offences under Ss. 366 and 376, I. P. C. The trial court acquitted Phullan and Surjit Kaur but convicted Gurcharan Singh, appellant, under Ss. 366 and 376, I. P. C. sentencing him under the former section to R. I. for three years and under the latter section to rigorous imprisonment for four years and fine of Rupees 200, with further rigorous imprisonment for six months in the event of default in payment of fine. The substantive sentences were to run concurrently. Sanjha Ram was convicted under S. 376, I. P. C. and sentenced to rigorous imprisonment for four years and a fine of Rs. 200, with further rigorous imprisonment for six months in case of default in payment of fine. He was also convicted under S. 368, I. P. C. and sentenced to rigorous imprisonment for two years. The substantive sentences were to run concurrently. Dalip Singh was convicted under S. 366, I. P. C. and sentenced to rigorous imprisonment for three years and fine of Rs. 200 with further rigorous imprisonment for six months in the event of default.

2. On appeal a learned single Judge of the Punjab and Haryana High Court upheld these convictions and sentences.

3. The prosecution story, as upheld by both the learned Sessions Judge and the High Court, is that Smt. Paramajit Kaur (prosecutrix), a young girl under 16 years of age, whose father Avtar Singh, had served in the Army from 1947 to 1967 and was, according to the High Court, a man of meagre means, went out in the evening of November 26, 1967 to ease herself. When she was returning home Surjit Kaur and Phullan met her and induced her to visit Dalip Singh s house so that she may be given nice clothes. On reaching Dalip Singh s house she was handed over to him. By then it had grown dark. Dalip Singh threatened her with a knife and asked her to accompany him. He took her to the appellant s baithak (sitting room) close-by and after handing her over to the appellant, Dalip Singh went away. The appellant threatened Paramjit Kaur with a pistol and took her to his fields outside the village and in the room where his tube-well machine was installed he committed rape on her twice. After a couple of hours Sanjha Ram arrived there. The appellant then went away leaving Parmjit Kaur in Sanjha Ram s custody. During the appellant s absence Sanjha Ram also committed rape on her. After sometime the appellant returned with a bedding and food for Paramjit Kaur. But she declined to eat anything. The whole night she was kept in that room where the appellant and Sanjha Ram both committed rape on her. On the following morning the appellant left her in the custody of Sanjha Ram with a direction that some customer should be found for her. Sanjha Ram used to take Paramjit Kaur to the sugarcane field during day time and bring her back to the room during the night. Sanjha Ram raped her even in the sugarcane field.

4. In the meantime, when Paramjit Kaur did not return home on November 26, 1967, her uncle Shingara Singh, her father Avtar Singh and some others began searching for her in their village and also in the other nearby villages. Having failed in their search, first information report was lodged on the morning of November 29, 1967 by Shingara Singh, younger brother of Avtar Singh, with the police station Ladwa, about two miles away from village Nawarsi, where Paramjit Kaur resided with her parents. The offence mentioned in the F.I.R. was under Sections 363/366, I. P. C. Suspicion was cast in the F.I.R. on Dalip Singh, his son Trilok Singh, his wife Surjit Kaur, Gurcharan Singh, appellant and his wife be