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 JUDGMENT 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,
the appellant under Section it was363notof possiblethe IndiantoPenalrecordCode.the guiltThis, onof
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 JUDGMENT 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 JUDGMENT 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.
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 :
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
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