JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge of Uttarakhand at Nainital High Court finding the appellant guilty of offence punishable under Section 376 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentencing him to undergo rigorous imprisonment for seven years. Two persons i.e. Khemanand and the present appellant filed the appeal before the High Court which was dismissed by the impugned judgment.

3. Background facts in a nutshell are as follows:

On 6.2.1985 the prosecutrix was sent by her mother to purchase rice from cheap grain shop. The prosecutrix waited there for sometimes in front of the shop. Ultimately, the prosecutrix returned to her home without purchasing rice. When her mother saw her without rice and coming late at home, she scolded and admonished her. The prosecutrix was again sent to the cheap grain shop and she again found it closed. When the prosecutrix was in a sad and remorseful mood, the accused Basant Ballabh (who died during the pendency of appeal) who was known to the prosecutrix came over there and inquired from her the reason for her remorse. The accused Basant Ballabh started to console her by saying that her mother was admonishing her everyday and suggested that they should run away and marry at Purnagiri temple. The accused, Basant Ballabh also told her that his maternal uncle has a factory where he would get an employment and earn money and live comfortably. The accused Basant Ballabh took the prosecutrix to his room where they stayed throughout the night. The accused Basant Ballabh promised her to marry on the next day in Purnagiri Temple. During the intervening night of 6th/7th February, 1985, accused Basant Ballabh committed rape on the prosecutrix thrice in the night. On the next day, the prosecutrix along with accused Basant Ballabh proceeded to the bus station Champawat The accused Basant Ballabh asked the prosecutrix to go on foot 1 k.m. ahead from Champawat towards Tanakpur side and wait for him near the Deodar tree from where he would pick her up in the bus. Following the said instructions, the prosecutrix proceeded towards the Deodar tree on foot which is ahead of Champawat, from where she was taken in the bus by the accused Basant Ballahh and Trilok Singh (who turned Approver) who had also joined hands with accused Basant Ballabh. They all proceeded towards Tanakpur and got down little before Tanakpur from where they proceeded on foot and reached on Tanakpur-Bareilly road. They again boarded a bus going towards the side of Bareilly. The prosecutrix became anxious and inquired as to where they were going. In reply, the accused told her that they would first purchase the articles required to perform marriage from Pilibhit and then would go to the temple. When they reached at Pilibhit, the prosecutrix was taken to a liquor shop where the accused Khemanand used to work as a Salesman. The accused Khemanand was also having an accommodation there. The accused Basant Ballabh, Trilok Singh and Khemanand took the prosecutrix inside the room of accused Khemanand where the accused persons consumed liquor. After finishing the drinks, Trilok Singh and Basant Ballabh slept on one cot, while Khemanand and the prosecutrix took separate cots. After sometimes, accused Khemanand went upto the cot of the prosecutrix and tried to molest her. The prosecutrix resisted his attempts and complained against accused Khemanand to Basant Ballabh. Accused Basant Ballabh instead of helping her, asked her to fulfill the desire of the accused Khemanand. Accused Khemanand subjected the prosecutrix to sexual intercourse forcibly. On 9.2.1985 the prosecutrix was taken to village Tikri where distantly related sister of Trilok Singh was residing so that they may not be apprehended by the police. Accused Triok Singh and Basant Ballabh went outside the village to ascertain whether any report against them has been made or not. They came to k