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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1163 OF 2011

Sat Parkash ..Appellant versus

State of Haryana and another ..Respondents

     J U D G M E N T

JAGDISH SINGH KHEHAR, J.

The appellant – Sat Parkash, his uncle – Hari Chand and  aunt – Sarla, were charged with the following, by the Additional  Sessions Judge, Sonepat on 18.10.1993:

“Firstly:- That you Sat Parkash on 7.6.1992 in the  area  of  Ganaur  kidnapped  Kumari  Sushila  alias  Punam, a minor girl aged about 15 years from the  lawful guardianship of her father Jagdish PW and  thereby  you  Sat  Parkash  accused  committed  an  offence punishable under Section 363 IPC within the  cognizance of this Court.  Secondly:-1 That on the said date, time and place  you Sat Parkash accused kidnapped Kumari Sushila  alias  Punam,  a  girl  aged  about  15  year  minor  daughter  of  Jagdish  PW  with  intent  that  said  Sushila may be forced to illicit intercourse with  you Sat Parkash and thereby you Sat Parkash accused  committed an offence punishable under Section 366-A  IPC and within the cognizance of this Court. Thirdly:- That  from  7.6.1992  in  the  area  of  Ganaur, Murthai and other place, you Sat Parkash  accused committed rape upon the person of Sushila  alias Punam and thereby you Sat Parkash commit and  offence punishable under Section 376 of the IPC and  within the cognizance of this Court. Fourthly:- That you Sarla and Hari Chand accused  on 12.6.1992 in the area of Ganaur knowing that

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Kumari Sushila alias Punam has been kidnapped or  has been abducted by Sat Parkash, co-accused and  you both wrongfully concealed said Kumari Sushila  alias Punam in your house at Ganaur and thereby you  all committed an offence punishable under Section  368 IPC and within the cognizance of this Court. Fifthly:- That you all viz. Hari Chand, Sarla and  Sat Parkash accused on 12.6.1992 in the area of  Ganaur in furtherance of the common intention, did  commit murder by intentionally causing the death of  Kumari  Sushila  alias  Punam  when  she  was  administered  poison  and  thus  you  all  thereby  committed an offence punishable under Section 302  read with 34 of the IPC and within the cognizance  of this Court.”

It is not a matter of dispute, that the uncle-Hari Chand and aunt- Sarla (of Sat Parkash) have since been acquitted.  The appellant  Sat Parkash has also been acquitted of the offence punishable under  Section 302 of the Indian Penal Code.

The surviving charges against the appellant are relatable only  to  Sections  363,  366,  366-A  and  376  of  the  Indian  Penal  Code.  During the course of hearing, learned counsel for the appellant  relied on the “suicide note” executed by the deceased Sushila just  before she attempted to commit suicide.  It is not a matter of  dispute,that the appellant - Sat Parkash, had also made a similar  attempt  to  commit  along  with  Sushila.   While  in  the  attempt,  Sushila had died, but somehow Sat Parkash survived.  The “suicide  note”   of  Sushila  is  available  on  the  record  of  this  case  as  annexure P-6.  The aforesaid “suicide note” was produced as exhibit  'DE' before the trial Court.  The same is extracted hereunder:

“Respected Papa and Mummy, My Last Respect.

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I, Sushila D/o Sh. Jagdish Tyagi had gone from my  home of my free will and now according to you I  cannot show my face to you but it will only be a  misnomer  that  I  am  not  pious  as  before  but  I  continue to be pious as earlier.  Please accept  this as true because no person about to die will  tell a lie. Therefore  I  have  decided  that  I  am  committing  suicide because I only need Satto whom I cannot get  while I am alive and will get him after death. Therefore, I Sushila D/o Jagdish Tyagi declare that  I shall be responsible for my own death and after  my death no one should be held responsible for my  death. Had I wanted so, I could have run away from  home after taking money but I did not do so.  I  have loved Satto, and by dying I am leaving this  writing as proof of my true love. After my death,  no  one  should  make  any  allegation  against  me  because I am pious as the Ganges.  If any one of  you remembers me, then remember Satto prior to me. Convey my last respects to all and kindly forgive  us if possible, but I have done no wrong.

Yours unfortunate Sushila”

In view of the clear and unequivocal statement made by  the deceased Sushila to the effect, that she had left her residence  by her own free will, it was not possible to record the guilt of  the appellant under Section 363 of the Indian Penal Code.  This, on  account  of  the  acknowledgment,  that  no  other  evidence  had  been  produced by the prosecution, to demonstrate that Sat Parkash had  enticed the deceased Sushila, to accomnay him.  The only evidence  available  is,  that  Sushila  was  found  in  the  residence  of  the  appellant – Sat Parkash. Based on the above factual position, it  was presumed that the appellant had kidnapped the deceased.  We are  of the view, that the above presumption is wholly misconceived and  untenable.

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The  charges  depicted  in  the  charge  sheet,  extracted  hereinabove, then takes us to Section 366 of the Indian Penal Code.  The dying declaration of Sushila indicates, that she had committed  suicide, rather then having married the appellant  - Sat Parkash,  by  disregarding  the  wishes  of  the  family.   There  is  therefore  substantial material on the record of this case to establish, that  the deceased Sushila had not been persuaded or compelled to marry  the appellant - Sat Parkash, before she committed suicide.  In  fact, the culpability of the appellant under Section 366 of the  Indian Penal Code has been considered by us at our own, even though  there was no express charge against the appellant under the above  provision.   We  are  satisfied,  that  even  on  the  basis  of  the  allegations levelled against the appellant, based on the evidence  produced before the trial Court, it would not have been possible to  convict the appellant even under Section 366 of the Indian Penal  Code.

The charge with reference to Section 366A of the Indian  Penal Code needs a closer examination. Section 366A of the Indian  Penal Code is extracted hereunder:

“366A Procuration of minor girl – Whoever, by any  means whatsoever, induces any minor girl under the  age of eighteen years to go from any place or  to  do any act with intent that such girl may be, or  knowing that it is likely that she will be, forced  or  seduced  to  illicit  intercourse  with  another  person shall be punishable with imprisonment which  may extend to ten years, and shall also be liable  to fine.”       

A perusal of the aforesaid section reveals, that the inducing of  the minor to constitute an offence under Section 366A, should have

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been with reference to an intent to force or seduce her “... to  illicit intercourse with another person...”. In fact, there is no  mention of any other person in the sequence of allegations levelled  against the appellant.  In the above view of the matter, we are  satisfied,  that  the  charge  under  Section  366A  was  also  not  sustainable  against  the  appellant.   For  the  reasons  recorded  hereinabove, we are of the view, that the impugned order passed by  the High Court convicting the appellant under Section 366A of the  Indian Penal Code is also liable to the set aside.  The same is  accordingly hereby set aside.

The question which arises hereinafter is, whether rape  was committed by the appellant on the deceased Sushila.  A mere act  of sexual intercourse would have established rape at the hands of  the appellant against Sushila, on account of the fact, that she was  a minor on the date of incident (on 7.6.1992), on account of the  fact, that her date of birth was admittedly 5.11.1976.  The High  Court arrived at the finding, that there was no material on the  record of this case, on the basis of which it could be concluded  that  sexual  intercourse  was  committed  on  the  deceased  Sushila.  Thus viewed, we are satisfied, that the charge of Section 376 of  the  Indian  Penal  Code  would  not  have  survived  against  the  appellant, and that he was rightly acquitted thereof.

In  view  of  the  conclusion  recorded  hereinabove,  the  conviction of the appellant – Sat Parkash, on the charges framed by  the Additional Sessions Judge, Sonepat on 18.10.1993, is clearly  not sustainable.  The conviction of the appellant upheld by the  impugned order passed by the High Court is liable to be set aside,

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and is accordingly set aside. By this Court's motion Bench order dated 15.04.2011, the  

appellant  was  enlarged  on  bail.   His  bail  bonds  shall  stand  discharged.

The instant appeal is accordingly allowed.

….......................J. [JAGDISH SINGH KHEHAR]

NEW DELHI; ….......................J. DECEMBER 09, 2015 [ROHINTON FALI NARIMAN]

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ITEM NO.104               COURT NO.3               SECTION IIB                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Criminal Appeal  No(s).  1163/2011 SAT PARKASH                                        Appellant(s)                                 VERSUS STATE OF HARYANA & ANR                             Respondent(s)

Date : 09/12/2015 This appeal was called on for hearing today. CORAM :           HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR          HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN

For Appellant(s) Mr. Anoop G. Chaudhary, Sr. Adv. Mr. Suresh C. Gupta, Adv. Mr. Birendra K. Mishra, Adv. Ms. Poonam Atey, Adv.

                   for Mr. Praneet Ranjan,AOR                       For Respondent(s) Mr. Deepak Thukral, Dy.AG

Mr. Arun Tewatia, Asstt.AG                     for Dr. Monika Gusain,AOR                    Mr. R. C. Kaushik,AOR(NP)                                 UPON hearing the counsel the Court made the following                              O R D E R

The appeal is allowed in terms of the signed Reportable  judgment, which is placed on the file.

(Renuka Sadana) (Parveen Kr. Chawla)  Court Master      AR-cum-PS