SAT PRAKASH Vs. STATE OF HARYANA & ANR
Section 34 - Acts done by several persons in futherance of common intention
Section 302 - Punishment for murder
Section 376 - Punishment for rape
Section 366 - Kidnapping, abducting or inducing woman to compel her marriage
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1163 of 2011, Judgment Date: Dec 09, 2015
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 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.
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.
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 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, 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]
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