Judgment

VAIDIALINGAM, J. :- This appeal by special leave is directed against the judgment and order dated 8-5-1969 of the Allahabad High Court dismissing Criminal Appeal No. 2180 of 1966 and confirming the conviction of the appellants for an offence under Section 366 I.P.C. as also the sentence passed by the learned Sessions Judge. The first appellant has, in addition, been convicted for an offence under Section 376 I.P.C. 470 and was sentenced to undergo three years rigorous imprisonment with the direction that the sentences imposed on him are to run concurrently. This conviction and sentence have also been confirmed by the High Court.

2. The sole question that arises for consideration is whether the two courts were justified in convicting the appellants for the above offences almost exclusively on the evidence of the prosecutrix, PW 7. Though originally the charge was of kidnapping, it is seen that the learned Sessions Judge framed an alternative charge under Section 366 I.P.C. on the allegation that the appellants abducted PW 7 with intent that she may be compelled to have illicit intercourse and marry the first appellant against her will. The learned Sessions Judge has held that PW 7 on the material date, namely, August 17, 1964, was over 18 years of age. Along with the appellants, four others were also tried for an offence under section 366 read with section 109, I.P.C. and Section 368 IPC, but three of them were acquitted by the Trial Court and another, Ram Swarup, was acquitted on appeal by the High Court.

3. The appellants are brothers, Madho Ram being elder. PW 1 Sham Lal had two daughters. His elder daughter, Shushila, was married to the 2nd appellant, Jagdish, about six or seven years prior to the date of occurrence. The first appellant, Madho Ram was a widower, aged about 42 years, his wife having died about 20 years ago. The second daughter of PW 1 who is the prosecutrix, is Surja, PW 7, who was aged, on the findings of the Courts, about 19 years at the material time. The second appellant was always suggesting to his father-in-law, PW 1, that Surja PW 7, has to be given in marriage to his elder brother, Madho Ram. Neither PW 1 nor PW 7 agreed to this proposal on the ground that there was a large disparity in age. The second appellant, however, threatened that in case PW 7 did not marry his elder brother, she would be compelled by force to marry Madho Ram.

4. On August 17, 1964, when PW 7 had gone out of her house early morning to answer calls of nature and was returning to her house, she was intercepted by the second appellant and requested to accompany him to a near by temple on the representation that his wife (sister of PW 7) was waiting for her therein. On this representation, PW 7 accompanied Jagdish to the temple where, however, she did not find her sister. But, on the other hand Madho Ram was in the temple. On not seeing her sister, PW 7 attempted to get back home, but she was threatened by the first appellant, in the presence of the second appellant, not to leave the place and was further required to marry Madho Ram. When PW 7 refused to accede to the said request, she was forcibly taken by both the accused out of the temple and when she was so forcibly being taken by both the accused out of the temple and was being led away, the two appellants sighted PWs 11 and 13 coming in the opposite direction and, with a view to avoid them, PW 7 was again taken back to the temple. According to PW 7, on return to the temple, Jagdish left the place and Madho Ram committed rape on her. She was kept in the temple till about 10.00 P.M. when the second appellant also came. Both the appellants took her to the house of one Ram Swarup and kept her in wrongful confinement. Madho Ram, who was with her during the night, again committed rape on her. It is her further evidence that she was taken every day morning to the sugarcane fields and brought back to Ram Swarup s house late in the night: The above is the sum and substance of t