PARSHOTAM LAL & ANOTHERversusSTATE OF PUNJAB

                       [2009) 14 S.C.R. 1046

                                                                     ·y
A                 PARSHOTAM LAL & ANOTHER
                                 v.
                       STATE OF PUNJAB
                (Criminal Appeal No. 940 of 2003)
                        OCTOBER 6, 2009
B
         [V.S. SIRPURKAR AND DEEPAK VERMA, JJ.]
                                                                     --4
         Penal Code, 1860 - s. 366 - Kidnapping, abducting or                --f''

    inducing woman to compel her for mamage, etc - Allegation
c   that accused kidnapped minor girl from the custody of her
   parents and subsequently raped her - Deposition of A-1 that
    he got mamed to victim - Convicted u/s. 366 and sentenced
    to four years rigorous imprisonment - High Court reducing
  . the sentence to rigorous imprisonment of one year and six
D months - Appeal by accused persons before Supreme Court
    - During pendency, victim filing affidavit that she has no
                                                                     .-i..   -
    grudge or ill will against accused or his family members - Two
    other persons filing affidavits that A 1 was of good character
    and did not commit the offence - Held: Acquittal of accused
E on basis of the affidavits cannot be accepted - s. 366 is a non-
    compoundable offence and sentence awarded was already on
    the lenient side - Victim inspite of her so called mamage with
   A-1, ultimately mamed somebody else while A~1 and A-2
    mamed somebody else - Thus, plea regarding reduction of
    sentence is rejected - Sentence/Sentencing.
F
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 940 of 2003.
      From the Judgment & Order dated 13.11.2002 of the High
G Court of Punjab & Haryana at Chandigarh in Criminal Appeal
  No. 137--SB of 1988.
                                                                      ,.. .
        Dinesh Verma (for AP. Mohanty) for the Appellants.


H                               1046
                PARSHOTAM LAL & ANR. v. STATE OF PUNJAB                   1047


     "f           Kuldip Singh for the Respondent.                                 A
                  The Judgment of the Court was delivered by

                   V.S. SIRPURKAR J. 1. The present appeal has been
             filed challenging the conviction for the offence under Section
             366 of Indian Penal Code.                                             B



..   f
                   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     c
             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         D'
             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 Parshotam Lal and Ved
             Parkash at Nakodar and they were arrested. It is alleged that
             during the elopement, the accused kept Tripta at Hoshiarpur
                                                                                   E
             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
             l.P .C. All that we see in the judgment of the learned Sessions
             Judge is that the charge for the offence under Section 376 l.P.C.
             was dropped for want of territorial jurisdiction. We are              F
             completely at a loss to understand as to how the learned
             Sessions Judge lacked the territori.al jurisdiction if the
             kidnapping of Tripta and her subsequent rape were part of one
             and the same transaction.
                                                                                   G
 -~               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 l.P.C. Here was the perfect scenario for conviction of the
             appellants for the offence under Section 376 1.P.C. because
             Tripta had not even attained the age of consent i.e. 16 years.        H
                                                                                    >-
    1048 SUPREME COURT REPORTS (2009) 14 (ADDL.) $.C.R.                              ~




A She was medically examined after she was retrieved and it             1            ~
  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 less than 17 years. The prosecution in support of its
  case led the evidence of Tripta, her father_ Puran Chand, two
B doctors and the witnesses from the investigating agency.                          r-
  Accused Parshotam Lal examined Balwant Rai (DW1) in his                           '
  defence who deposed that Parshotam Lal got married to Tripta.                     r
  Photographs Ex. 06 & 07 relating to this marriage were also
  produced.
                                                                       --'..,
                                                                                ..
c      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                  ~

D 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                         I
                                                                                (
  undergo rigorous imprisonment for four years and to pay a fine
  of Rs. 500/- each and in default of the payment of fine, further
                                                                                    "
E 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
F the consenting age and 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 l.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.
G
       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 01 to 05 nor was
  any suggestion put to her that she got married to accused
H Parshotam Lal and that it was thereafter that the marriage was
             PARSHOTAM LAL & ANR. v. STATE OF PUNJAB                   1049
                       [V.S. SIRPURKAR, J.]

    "f    consummated. Since, there was no real challenge to the                A
          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.
                                                                                B
               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         c
          parents were not aggreable and, 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                D
          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
                                                                                E
          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
                                                                                F
          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.                                                 G

- ""'          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 l.P.C. is a non-
          compoundable offence and, therefore, the argument of learned          H
    1050 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R.

                                                                          .,.
A counsel for the appellants cannot be accepted. This apart from
                                                                                  I
  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
B 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
c 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
D as possible to serve out the remaining sentence.                    j
                                                                                --
                                                                                 -
                                                                                  ,-
   N.J.                                        Appeal dismissed.                  I




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