Parshotam Lal & Anr vs State Of Punjab

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 2

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 3

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 4

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, 5

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.

6

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. 7

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

......................J. [ DEEPAK VERMA ] NEW DELHI OCTOBER 6, 2009.