Lal & ANR. Vs. State of Punjab  INSC 1623 (6 October 2009)
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NO. 940 OF 2003 PARSHOTAM LAL & ANOTHER ....APPELLANTS VERSUS J U D G E M E
N T V.S. SIRPURKAR J.
The present appeal has been filed challenging the conviction for
the offence under Section 366 of Indian Penal Code.
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.
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
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.
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.
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.
We have heard learned counsel appearing for the parties and gone
through the record.
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.
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
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
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.
The appeal is dismissed. The bail bonds of the appellants are
cancelled. They are taken into custody as early as possible to serve out the
.......................J. [ V.S. SIRPURKAR ]
......................J. [ DEEPAK VERMA ]
OCTOBER 6, 2009.