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  REPORTABLE      IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 940 OF 2003

PARSHOTAM LAL & ANOTHER ....APPELLANTS

VERSUS

STATE OF PUNJAB ....RESPONDENT

J U D G E M E N T  

V.S. SIRPURKAR J.

  1. The present appeal has been filed  challenging the  

conviction for the offence under Section 366 of Indian  

Penal Code.   

2. The prosecution case, in brief, is that Tripta,  

who is the daughter of Puran Chand,  was studying in 8th  

Class  and was born on 13.6.1972.  On 21.10.1987, Puran  

Chand along with his wife had gone for their respective  

jobs  and  children  had  left  for  school.    When  they  

returned in the evening, they found that Tripta had not  

returned to the house.  Search was made but Tripta could  

not be traced.  Appellants-accused were also found absent  

from their house.  It seems that no report came  to be  

made for five days and it was only on 26.10.1987, Puran  

Chand lodged  a report to the police about the kidnapping  

of  his   daughter.   The   police   then   carried   out  

search.  On 4.11.1987, Tripta was found in the company of

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Parshotam Lal and Ved Parkash at Nakodar and they were  

arrested.  It is alleged  that during the elopement, the  

accused  kept  Tripta  at  Hoshiarpur  where  both  of  them  

committed  rape  on  her.   For  some  mysterious   reasons  

which are beyond our comprehension, the accused were not  

charged with the offence under Section 376 I.P.C.  All  

that we see in the judgment of the learned  Sessions  

Judge is that  the charge for the offence under Section  

376  I.P.C.  was  dropped  for  want  of  territorial  

jurisdiction.  We are completely at a loss to understand  

as  to  how  the  learned  Sessions  Judge  lacked  the  

territorial jurisdiction if the kidnapping of Tripta and  

her  subsequent  rape  were  part  of  one  and  the  same  

transaction.   

3. Be that as it may, the long and short of it is  

that the accused persons were never tried for the offence  

under Section 376 I.P.C.  Here was the perfect scenario  

for conviction of the appellants for the offence under  

Section 376 I.P.C. because Tripta had not even attained  

the  age  of  consent  i.e.  16  years.  She  was  medically  

examined after she was retrieved and it was found that  

she had been subjected to sexual inter-course and it was  

doctor's opinion that her age was more than 15 years and

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less than 17 years.  The prosecution in support of its  

case led the evidence of Tripta, her father Puran Chand,  

two  doctors  and  the  witnesses  from  the  investigating  

agency.  Accused Parshotam Lal examined Balwant Rai (DW1)  

in his defence who deposed that Parshotam Lal got married  

to Tripta.  Photographs Ex. D6 & D7 relating to this  

marriage were also produced.

4. Learned Sessions Judge in his judgment  held  that  

Tripta was neither  confronted with any plea of marriage  

nor  with the photographs relating to the marriage.  It  

was also held that Tripta had not attained the consenting  

age and from the evidence of Doctor, it was clear that  

she had been subjected to sexual inter course after she  

was kidnapped from the custody of her parents.  On that  

account, learned Sessions Judge proceeded to convict both  

the  accused  persons  and  sentenced  them  to  undergo  

rigorous imprisonment for four years and to pay a fine of  

Rs. 500/- each and in default of the payment of fine,  

further rigorous imprisonment for six months.  

5. Aggrieved  by  the  judgment  of  learned  Sessions  

Judge,  the  appellants  filed  an  appeal  before  the  High  

Court.   Before  the  High  Court,  it  was  tried  to  be  

suggested  that  Tripta  was  of  the  consenting  age  and

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accused  No.  1  Parshotam  Lal  was  married  to  her.   No  

serious effort was made before the appellate court to get  

out of the conviction for the offence under Section 366  

I.P.C.  and  it  was  tried  to  be  suggested  that  accused  

Parshotam Lal had got married to  Tripta  and, therefore,  

Parshotam Lal had good intention on Tripta.   

6. The High Court came to the conclusion that consent  

on the part of Tripta would be of no consequence and  

Tripta had not been confronted with the photographs D1 to  

D5 nor was any suggestion put to her that she got married  

to accused Parshotam Lal and that it was thereafter that  

the marriage was consummated.  Since, there was no real  

challenge to the conviction, the High Court proceeded to  

dismiss the appeal. However, under the circumstances, the  

High  Court  reduced  the  sentence  from  four  years  to  

rigorous imprisonment of one year and six months.  That  

is how, the appellants are before us.

7. We have heard learned counsel appearing for the  

parties and gone through the record.

8. During the pendency of appeal, three  affidavits  

came to be filed one being that of Tripta who sworn that  

she  had  affair  with  Parshotam  Lal  and  wanted  to  get  

married with him but her parents were not aggreable and,

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therefore,  got  her  married  to  one  Rajinder  Kumar  r/o  

Quarter No. 329, Sector II, Naya  Nangal.  She further  

stated in her affidavit that she was blessed with two  

issues  and   was  happily  enjoying  her  life  with  her  

husband and that she had no grudge or ill will against  

Parshotam Lal or his family members and did not want any  

kind of action against the appellants and the matter had  

been  patched  up  with  the  intervention  of  the  

respectables.

9. Two  other  affidavits,  which  are  on  record,  are  

sworn by one Harish Kumar s/o late Puran Chand r/o Mohd.  

Rishi Nagar, Nakodar and other by   Kewal Singh Thakar,  

President  M.C.  Nakodar.   Both  of  them  have  given  a  

certificate of good character to Parshotam Lal and have  

certified that Parshotam Lal  is a law abiding citizen  

and has committed no offence.  It is only on this basis  

that the learned counsel appearing for the appellants has  

prayed for acquittal or alternatively some consideration  

in the sentence apprehending that if the accused are sent  

back to jail, it would affect the married life not only  

of  their  own  but  also  of  Tripta  who   is  now  living  

happily with her husband and children.

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10. We are afraid we cannot accept such argument about  

the  acquittal  of  the  accused  on  the  basis  of  the  

affidavits which we have referred to earlier. Section 366  

I.P.C. is a non-compoundable offence and, therefore,  the  

argument of learned counsel for the appellants cannot be  

accepted.  This apart from the fact that inspite of her  

so called marriage with Parshotam Lal, Tripta ultimately  

married  somebody  else  while  Parshotam  Lal  and   other  

accused  Ved  Parkash  married  somebody  else.  Under  the  

circumstances, we do not feel that it will be worthwhile  

to allow this appeal on the question of sentence also as  

the sentence is already on the lenient side.  We do not  

find any reason to interfere with the impugned order.  In  

fact we have genuine doubts about the three affidavits.  

Barring  Tripta's  affidavit,  there  does  not  appear  any  

permission to file the other two affidavits.  There does  

not appear any contrition on the part of the accused for  

their crime.  We, therefore, reject the plea regarding  

the sentence.

11.  The appeal is dismissed.  The bail  bonds of the  

appellants are cancelled.  They be taken into custody as  

early as possible to serve out the remaining sentence.  

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.......................J. [ V.S. SIRPURKAR ]

......................J. [ DEEPAK VERMA ]

NEW DELHI OCTOBER 6, 2009.