SAT PARKASHversusSTATE OF HARYANA AND ANOTHER

                      [2015] 13 S.C.R.1254


A                        SAT PARKASH

                                v.
              STATE OF HARYANAANDANOTHER

B               (Criminal Appeal No. 1163 of 2011)

                      DECEMBER 09, 2015

     [JAGDISH SINGH KHEHAR AND R. F. NARIMAN, JJ.]

C       Penal Code, 1860: ss.363, 366, 366-A, 376, 368 -
  Crime against minor girl - Prosecution case was that
  appellant kidnapped a minor girl and raped her - His uncle
  and aunt knowing about the kidnapping helped him in
  concealing the girl in their house and they all in furtherance
0 of common intention committed murder by administering
  poison to her - Trial court acquitted uncle and aunt of all
  offences -Appellant was acquitted of offence of murder and
  convicted u/ss.363, 366, 366-A, 368, 376 - High Court upheld
E the order of conviction - In the instant appeal, appellant is
  challenging the conviction order by placing reliance on the
  "suicide note" stated to have been written by the deceased-
  HELD: It is not in dispute that appellant had also made a
  similar attempt to commit suicide along with the deceased -
F In the suicide note, deceased had made unequivocal
  statement t0 the effect that she had left her residence by her
  own free will - It was, therefore, not possible to record the
  guilt of appellant u/s. 363 - The only evidence available was
  that deceased was found at the residence of the appellant
G based on which it was presumed that the appellant had
  kidnapped the deceased - The said presumption was wholly
  misconceived-As regards s.366, the note of the deceased
  indicated that she had committed suicide, rather than having
  married the appellant by disregarding the wishes of the
H family - There was, therefore, substantial material to
                                1254
 SAT PARKASH v. STATE OF HARYANAANDANOTHER                            1255


establish, that the deceased had not been persuaded or                A
compelled to marry the appellant before her death -
Therefore, offence uls.366 was also not made out - The
inducing of the minor to constitute an offence u/s. 366A, should
have· been with reference to an intent to force or seduce her
".. to illicit intercourse with another person ... " - There was no   B
mention of any other person in the sequence of a/legations
levelled against the appellant - In view of the matter, the
charge uls.366A was also not sustainable against the
appellant -As regards the a/legation of rape, a mere act of
sexual intercourse would have established rape at the hands           C
of the appe/fant against the deceased on account of the fact,
that she was a minor on the date of incident- There was no
evidence to conclude that sexual intercourse was committed
on the deceased - Thus, the charge of s.376 also did not
survive against the appellant - Conviction of appellant is            D
liable to be set aside.
    CRIMINALAPPELLATE JURISDICTION: CRIMINAL
APPEAL NO. 1163 of 2011.
                                                                      E
     From the Judgment and Order dated 05.01.2011 of the
High Court of Punjab and Haryana at Chandigarh, in Criminal
Appeal No. 105-SB of 1995.
      ~noop G. Chaudhary, Sr.Adv., Suresh C. Gupta, Birendra
K. Mishra, Ms. Poonam Atey, (For Praneet Ranjan), Advs., for          F
the Appellant.
     Deepak Thukral, Dy. AG., Arun Tewatia, Asstt. AG, (For
Dr. Monika Gusain), R. C. Kaushik,Advs., fortheRespondents.
      The tl udgment of the Court was delivered by                    G
    . JAGDISH SINGH KHEHAR, J. 1. 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:
                                                                      H
1256   SUPREME COURT REPORTS                  [2015] 13 S.C.R.


 A     "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
 B     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
 C     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
 D     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
 E     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
 F     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
 G     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
 H
 SAT PARKASH v. STATE OF HARYANAANDANOTHER                          1257
          [JAGDISH SINGH KHEHAR, J.]

       in furtherance of the common intention, did commit           A
       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."                    B

     2. 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            C
Code.

       The surviving charges against the appellant are relatable
on.ly to Sections 363, 366, 366-A and 376 of the Indian Penal
Code. During the course of hearing, learned counsel for the         D
appellant relied on the "suicide note" executed by the deceased
Sushi la 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              E
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:
                                                                    F
       "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       G
       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.
                                                                    H
1258       SUPREME COURT REPORTS                  [2015] 13 S.C.R.


 A         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
 B         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.
 C         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
           tome.

 D          Convey my lasfrespects to all and kindly forgive us if
            possible, but I have done no wrong.
                                                 Yours unfortunate
                                                        Sushila"
 E        3. 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
 F 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
 G that the appellant had kidnapped the deceased. We are of
    the view, that the above presumption is wholly misconceived
    and untenable.

        4. The charges depicted in the charge sheet, extracted
 H hereinabove, then takes u::- to Section 366 of the Indian Penal
 SAT PARKASH v. STATE OF HARYANAANDANOTHER                        1259
          [JAGDISH SINGH KHEHAR, J.]

Code. The dying declaration of Sushila indicates, that she had A
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 B
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 C
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.

     5. The charge with reference to Section 366A of the Indian   D
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      E
      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 puni.shable with
      imprisonment which may extend to ten years, and shal!        F
      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 G
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 H
1260          SUPREME COURT REPORTS                [2015] 13 S.C.R.


 A     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.
 B
         6. 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
 C 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
 D was committed on the deceased Sushila. Thus viewed, we
   are satisfied, thatth~ charge of Section 376 of the Indian Penal
   Code would not have survived against the appellant, and that
   he was rightly acquitted thereof.

 E          7. 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 t~e High
 F     Court is liable to be set aside, and is accordingly set aside.

            8. By this Court's motion Bench order dated 15.04.2011,
       the appellant was enlarged on bail. His bail bonds shall stand
       discharged.
 G
             9. The instant appeal is accordingly allowed.

       Devika Gujral                                    Appeal allowed.