Tags Murder Rape

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