man eater - surendra koli - sensational child killer and eater

ITEM NO.101               COURT NO.6             SECTION II



            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). 2227 OF 2010



SURENDRA KOLI                                     Appellant (s)

                 VERSUS

STATE OF U.P. ORS.                                Respondent(s)




WITH SLP(Crl) NO. 608 of 2010
(With office report)

Date: 15/02/2011  This Appeal was called on for hearing today.



CORAM :
        HON'BLE MR. JUSTICE MARKANDEY KATJU
        HON'BLE MRS. JUSTICE GYAN SUDHA MISRA




For Appellant(s)        Dr. Sushil Balwada, Adv. AC

                        Mr. Vivek K. Tankha (A.S.G.)
                        Mr. T. A. Khan, Adv.
                        Mr. Pratul Shandilya, Adv.
                        Mr. Sumeer Sodhi, Adv.
                        Mr. Vaibhav Srivastava, Adv.
                        Mr. Kumnanan D., Adv.
                        Mr. Arvind Kumar Sharma, Adv.
                        Mr. Harsh, Adv.

For the appellant       Mr. B. P. Singh Dhakray, Adv.
In SLP (crl)            Mr. Shakti Singh Dhakray, Adv.
608 of 2010             Mr. D. B. Vohra, Adv.


                                                
For Respondent(s)       Mr. Ratnakar Dash, Sr. Adv.
                        Mr. Shail Kumar Dwivedi, AAG
                        Mr. Rajeev K. Dubey, Adv.                  
                     Mr. Kamlendra Mishra ,Adv

For Resp No. 1          Mr. R. S. Sodhi, Sr. Adv.
In SLP (Crl)            Ms. Manisha Bhandari, Adv
608 of 2010             Mr. Omkar Shrivastava, Adv. For


                     Ms. Madhu Moolchandani



                                   -1-



                                   -2-



           UPON hearing counsel the Court made the following
                               O R D E R





                    The appeal is dismissed in terms of the
             signed order.




       SLP(Crl) NO. 608 of 2010



              Leave granted.





             (Deepak Joshi)                    (Indu Satija)
               Sr. P.A.                         Court Master



              (Signed reportable  order is placed on the file )


                                                            Reportable
                   IN THE SUPREME COURT OF INDIA
                CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL NO 2227 OF 2010



SURENDRA KOLI                             .........Appellant (s)

                             Versus

STATE OF U.P. AND ORS.                    ........Respondent (s)




                              WITH

           SPECIAL LEAVE PETITION (CRL.) 608 of 2010



                         O R D E R



        Heard   Dr.   Sushil   Balwada,   learned   counsel,   who   has

appeared for the appellant Surendra Koli in Criminal Appeal

No. 2227 of 2010.

        The   appellant   Surendra   Koli,   accused   no.   2   and

Maninder   Singh   Pandher   accused   no.   1   were   convicted   under

Section 302/364/376 IPC by the   Special Sessions trial no.

611   of   2007   decided   on   13.02.2009   by   Additional   Sessions

Judge, Ghaziabad, U.P.  By that judgment death sentence was

imposed on both these accused.

        In   Appeal/Reference   to   the   High   Court   accused

Surendra   Koli's   death   sentence   was   affirmed   while   the

accused   Maninder   Singh   Pandher   was   acquitted.     Hence,

Surendra Koli has filed this Appeal before us.

        The facts of this case are gruesome and horrifying.

It seems that several children had gone missing over 2 years


from   Sector   31,   Nithari   Village,   Gautam   Budh   Nagar,   Noida

from 2005 onwards.  Several of such children were alleged to

                                   -1-

                                   -2-

have   been   killed   by   the   appellant   who   is   also   alleged   to

have   chopped   and   eaten   the   body   parts   after   cooking   them.

Appellant   Surendra   Koli   was   the   servant   of   accused   no.   1

Moninder Singh, and they lived together at D-5, Sector 31,

Noida.

           The   High   Court   in   the   impugned   judgment   dated

11.09.2009 has discussed the evidence in great detail and we

have   carefully   perused   the   same.     It   is   not   necessary

therefore to again repeat all the facts which have been set

out   in   the     judgment   of   the   High   Court   except   where

necessary.  We entirely agree with the findings, conclusion

and sentence of the High Court so far as accused Surendra

Koli is concerned.

           Admittedly, there was a confession made by Surendra

Koli   before   the   Magistrate   under   Section   164   Cr.PC   on

01.03.2007   and   we   are   satisfied   that   it   was   a   voluntary

confession.     The   Magistrate   repeatedly   told   the   accused

Surendra Koli that he was not bound to make the statement

and   it   can   be   read     against   him.     In   our   opinion   the

provisions of Section 164 CrPC have been fully complied with

while recording the said statement.

           In   the   aforesaid   statement   before   the   Magistrate

appellant Surendra Koli has admitted in great detail how he


used to kill the girls after luring them inside the House

no.   D-5,   Sector   31,   Noida   by   strangulating   them,   and   he

would then chop up and eat up their body parts after cooking

them.  Some body parts, clothes and slippers were thrown in




                                  -3-

the   enclosed   gallery   behind   the   house   at   D-5,   Sector   31,

Noida.     He   volunteered   to   lead   the   police   team   to   the

specific   spot   where   he   had   kept   the   articles/body   parts

hidden.   The police party reached that spot along with the

appellant.   On his pointing out, 15 skulls and bones were

recovered, and also a knife was recovered from a water tank

of a bath room in D-5, Sector 31. On 31.12.2006 during the

scooping of the drain in front of D-5, bones and chappals

were recovered.

        He   has   given   graphic   description   about   the   several

murders he has committed.  Surendra Koli was the servant of

co-accused   Maninder   Singh   Pandher   as   has   been   admitted   by

him.  The confession under Section 164 has been corroborated

in material particulars.  The body parts of the killed girls

have been found in the gallery behind the house and in  the

Nala beside the house.

        Weapons   like   knife   have   also   been   recovered.     The

girls clothes have also been identified.

        Two   girls     PW-27   namely   Pratibha   and   PW-28   namely

Purnima   have   stated   before   the   trial   Court   that   they   were

also attempted to be lured inside the House D-5 by Surendra


Koli but they refused to enter the house.   This was their

sheer good luck, for if they would have entered the house

then   they   might   have   met   the   same   fate.     Their   evidence

indicates the modus operandi of the appellant.

        The parents of one Rimpa Haldar had filed a missing

report   at   the   police   station   on   20.07.2005   stating   that

their  daughter  Rimpa  aged  about  15 years had gone to do




                                  -4-

menial work in Sector 20 on 08.02.2005 but had not returned.

Smt Doli Haldar came to know that in D-5, Sector 31 human

skeleton and clothes had been found.   Hence she went there

and identified the chunni and bra of her daughter.

        The   appellant   was   charged   for   the   murder   of   Rimpa

(amongst   others),   and   was   found   guilty   by   both   the   trial

Court   and   High   Court.     Although   it   is   a   case   of

circumstantial   evidence   we   are   of   the   opinion   that   the

entire   chain   of   circumstances   connecting   the   accused

Surendra   Koli   with   the   crime   has   been   established   by   the

prosecution beyond reasonable doubt.

        The DNA test of Rimpa   by CDFD, a pioneer institute

in Hyderabad matched with that of blood of her parents and

brother.   The Doctors at AIIMS have put the   parts of the

deceased girls  which have been recovered by the Doctors of

AIIMS   together.     These   bodies   have   been   recovered   in   the

presence of the Doctors of AIIMS at the  pointing out by the

accused Surendra Koli.   Thus, recovery is admissible under


Section 27 of the Evidence Act.

        On   the   facts   of   the   case   we   see   no   reason   to

interfere with the findings of the trial court and the High

Court   that   the   appellant   Surendra   Koli   is   guilty   of

murdering   Rimpa   Haldar.   Both   Courts   have   gone   into   the

evidence in great detail and we have perused the same.  The

appellant appears to be a serial killer, and  these cases in

our opinion fall within the category of rarest of the rare

cases as laid down in Bachan singh  Vs State of Punjab, 1982

SCC   689   which   has   been   subsequently   followed   in   Atbir   Vs

Government of NCT of Delhi, 2010 SCC (9) 1.

                                  -5-

        The   killings   by   the   appellant   Surendra   Koli   are

horrifying and barbaric.  He used a definite methodology in

committing these murders.  He would see small girls passing

by   the   house,   and   taking   advantage   of   their   weakness   lure

them inside the house no. D-5, Sector 31, Nithari Village,

Noida and there he would strangulate them and after killing

them he tried to have sex with the body and would then cut

off their body parts and eat them.   Some parts of the body

were   disposed   off   by   throwing   them   in   the   passage   gallery

and drain (nala) beside the house.  House no. D-5, Sector 31

had   become   a   virtual   slaughter   house,   where   innocent

children were regularly butchered.

        In   our   opinion,   this   case   clearly   falls   within   the

category of rarest of rare case and no mercy can be shown to

the appellant Surendra Koli.


       The appeal is, therefore, dismissed.




SPECIAL LEAVE PETITION  (CRL.) 608 of 2010

      Leave granted.




                                   .....................J.
                                   [MARKANDEY KATJU]




                                   .....................J.
                                   [GYAN SUDHA MISRA]
NEW DELHI;
FEBRUARY 15, 2011

UNFAIR TRADE PRACTICE - JOINT VENTURE BUILDING WAS DEMOLISHED- LIABLE TO REPAY

                                                                Reportable
                IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                   CIVIL APPEAL NO.1493 OF 2011
                  [Arising out of SLP [C] No.7283/2010]


Vinod Kumar Thareja                                      ... Appellant

Vs.

M/s Alpha Construction & Ors.                            ... Respondents



                                ORDER


R. V. Raveendran J.


      Leave granted.


2.    The appellant, the owner of a plot measuring about 11000 sq.ft.

situated at Bhopal, entered into a Joint Venture Agreement dated 2.7.2004

with the first respondent for development of the said plot by construction

and sale of nine duplex flats. Under the said agreement, the appellant was to

provide his land to the first respondent for construction of flats; the first

respondent was responsible for the construction and sale of the duplex flats;

and out of the sale proceeds realized by sale of the flats, the appellant was
                                       2


entitled to 45% and the first respondent was entitled to the balance of 55%.

The first respondent was authorized to enter into agreements of sale with

prospective purchasers of flats even at the stage of construction and receive

the price either in a lump sum or in instalments. The first respondent was

solely responsible for completion of construction and the quality of

construction. According to the appellant, his obligation under the joint

venture agreement was only to contribute the land and in consideration

thereof receive 45% of sale proceeds.



3.    In pursuance of it, the appellant and first respondent entered into an

agreement dated 18.9.2004 with respondents 2 and 3, who were interested in

purchasing one of the nine duplex flats to be constructed in the property. The

said agreement clearly stated that the first respondent was to construct the

duplex flat and receive the consideration from respondents 2 and 3. In

pursuance of it, the first respondent's proprietor (Rajbir Singh), as Attorney

holder of the appellant, executed a sale deed dated 14.1.2005 in favour of

respondents 2 & 3, conveying an extent of 968 sq.ft., of land with a skeletal

structure thereon for Rs.6 lakhs.
                                     3




4.    Respondents 2 and 3 filed a complaint dated 22.6.2006 before the

District Consumer Redressal Forum, Bhopal (`District Forum' for short)

against the first respondent alleging deficiency in service. In the said

complaint they alleged that they had paid Rs.11,80,000/- to the first

respondent out of a total consideration of Rs.13,50,000/- for the purchase of

a duplex flat; that on 25.6.2005, the Municipal Corporation demolished the

structure constructed by the first respondent; and that the first respondent

committed an unfair trade practice by not disclosing the true facts and by not

delivering the constructed flat. The complainants also alleged that thereafter

the first respondent failed to construct the flat and was guilty of gross

negligence and deficiency in service. The complainants consequently

demanded from the first respondent, refund of the sum of Rs.11,80,000/-

paid by them with interest of Rs.3,35,000/-, compensation of Rs.2,00,000/-

and punitive damages of Rs.2,00,000/- in all Rs.19,15,000/-.



5.    The said petition was contested by the first respondent who was the

sole respondent. The appellant was not impleaded as a party before the

District Forum, by the complainants. Even the first respondent did not make

any application before the District Forum for impleading the appellant as a
                                     4


co-respondent. Nor did he contend that the appellant should be made liable

for payment of any amount that may be directed by the commission. He

merely contended that the complainants ought to have made the appellant

also a party and in his absence the complaint was liable to be dismissed.



6.    The District Forum allowed the complaint by order dated 11.1.2007

and directed the first respondent to refund the sum of Rs.11,80,000/- paid by

the respondents 2 and 3 to the first respondent, with interest at 18% per

annum from the date of deposit till date of payment.



7.    Feeling aggrieved, the first respondent filed an appeal before the

Madhya Pradesh Consumer Dispute Redressal Commission (`the State

Commission' for short) challenging the order of the district forum. In the

said appeal, the first respondent made an application for impleading the

appellant herein as the third respondent. That application was allowed on

28.4.2008 and the State Commission impleaded the appellant as third

respondent in the appeal and directed the appellant to file its response to the

complaint filed by the complainants under section 12 of the Act.
                                     5


8.    The appellant therefore filed a counter to the main complaint before

the State Commission pointing out that neither in the complaint by the

complainant nor in the appeal by the first respondent anything adverse has

been pleaded against them nor any claim made against him; and therefore,

the question of fastening any liability against him did not arise. The

appellant also filed objections to the appeal by contending that he was not a

necessary party to the appeal. He pointed out that the complainants had not

alleged or proved any wrong doing on his part or any deficiency in service

on his part, nor made any claim against him and therefore he could not be

impleaded as a party in the appeal.



9.    The State Commission allowed the appeal of the first respondent in

part by a brief order dated 19.9.2008. It held that as the flats were

constructed by the first respondent in the land belonging to the appellant in

pursuance of a joint venture agreement between them and as the agreement

for sale in favour of respondents 2 and 3 had been executed jointly by the

appellant and first respondent and as the subsequent sale deed in favour of

respondents 2 and 3 was executed by the proprietor of first respondent as

attorney holder of the appellant, and as obtaining of building permission for

construction was the joint responsibility of the appellant and the first
                                           6


respondent, the appellant herein was also responsible to compensate the

complainants for any loss suffered by them on account of the demolition by

the Municipal Corporation. As a consequence, the State Commission, while

upholding the direction of the District Forum for refund of Rs.11,80,000/-

paid by the complainants, made the following modifications :


(a)   Respondents 2 and 3 shall re-convey the property in favour of
      appellant;

(b)   The interest shall be reduced to 9% per annum; and

(c)   The first respondent as also the appellant were liable for the amount
      payable to respondents 2 and 3.


10.   Feeling aggrieved, the appellant filed a revision before the National

Consumer Dispute Redressal Commission (`National Commission' for

short) which dismissed the revision by the impugned order with the

following observations :


      "It is not in dispute that the owner of the property as well as the builder
      had entered into joint agreement to build the flats and though the
      responsibility of visiting the office of the corporation frequently to obtain
      sanctioning the plan/building licence. Commencement certificate and
      completion certificate etc., was delegated to the builder. The building
      permission is obtained in the name of owner and builder. Therefore, the
      builder and owner both are jointly responsible for all commission and
      omission. Even while collecting money from the consumers/complainants,
      an agreement was signed by the owner also. Further the Municipal
      Corporation had demolished the building because of dispute in the title of
      the property. Therefore, the liability of the petitioner, who claims to be the
      owner of the property of which title is unclear and still had entered into an
                                       7

      agreement and sold the plot to the gullible consumers is proved and the
      deficiency is writ large."
                                                         (Emphasis supplied)


The said order is challenged by the appellant in this appeal by special leave.


11.   On the contentions urged, the following question arises for

consideration in this appeal : Whether a respondent against whom an order

for payment has been made in a complaint under the Consumer Protection

Act, 1986, can in an appeal filed by him, seek impleadment of a third party

by contending that such third party is also liable either partly or wholly, even

if the complainant has not sought any relief against such third party?



12.   Respondents 2 and 3 filed the complaint against the first respondent as

they had made the payments to the first respondent and first respondent had

agreed to construct and deliver them the duplex flat and that the flat

constructed by the first respondent was demolished by the municipal

authorities. The complainants had no grievance against the appellant nor did

they seek any relief against the appellant. The first respondent herein who

was the sole respondent before the District Forum did not seek impleadment

of the appellant as a respondent in the complaint before the District Forum.

The District Forum allowed the complaint and held that the first respondent,
                                      8


as the service provider, was guilty of deficiency of service and directed the

first respondent to pay to the complainants, a sum of Rs.11,80,000/- with

interest. That order was not challenged by the complainants (respondents 2

and 3). The only question that can, therefore, be considered in an appeal by

the first respondent was whether it was liable to pay any amount to

respondents 2 and 3 and, if so the extent thereof.



13.   The scheme of the Act does not permit a service provider, who has

been made liable to refund the amount paid towards price under the order of

the District Forum, to file an appeal and pass on a part of the liability to

some third party, on the ground that the contract between them enabled him

to do so. In an appeal by a respondent in a complaint, aggrieved by the order

made in favour of the complainant, the only issue is whether the liability of

the respondent should be upheld, modified or rejected. The question whether

anyone else should be made liable along with the respondent in the

complaint, does not arise. The appeal by a respondent in a complaint has to

be dismissed, if the respondent is liable for the claim. If he has been wrongly

made liable, the appeal will be allowed. The issue in the appeal and the relief

that can be granted in the appeal can be only qua the complainant and not

qua some third party. If a service provider who has been made liable to a
                                    9


complainant wants contribution from anyone else, on the ground that such

third party had also contributed to the deficiency in service, it is for the

service provider to take independent action against such third party, in

respect of the liability. As the complainants neither impleaded nor sought

any relief against the appellant, neither the State Commission nor the

National Commission could make the appellant liable along with the first

respondent.


14.   The first respondent contended that when the appellant was impleaded

as the third respondent in its appeal, the appellant did not protest, nor

challenged the order of the State Commission impleading him as a party, but

filed objections to the complaint before the State Commission on merits and

participated in the appeal proceedings and therefore he was estopped from

challenging his impleadment. Being impleaded as a party in an appeal is

different from being made liable by an order in the appeal. A person may not

have any grievance if he is merely impleaded as a party, but may have a

grievance in regard to the impleading, if such impleading led to making him

liable for any payment. When a non-party is impleaded as a respondent in an

appeal, he can either challenge the impleadment itself or challenge his

impleadment, while challenging the final decision in the appeal. The fact

that the impleaded non-party filed objections to the complaint during the
                                      10


pendency of the appeal, on the specific direction of the State Commission,

will not deny his right to challenge the impleadment.


15.     This appeal is, therefore, allowed and the order of the National

Commission affirming the order of the State Commission making the

appellant liable jointly with first respondent is set aside. It is, however, made

clear that :


(i)     if the first respondent has any claim or cause of action against the
appellant, it is at liberty to seek redressal of its grievances against the
appellant;

(ii)    the order of the State Commission affirmed by the National
Commission to the extent it reduces the interest from 18% to 9% per annum
and requiring the respondents 2 and 3 herein to re-convey the flat to their
vendor under the sale deed dated 14.1.2005 is not disturbed; and

(iii)   respondents 2 and 3 may draw any amount deposited by the first
respondent towards the amount due under the order of the District Forum as
modified by the State Commission.



                                               ............................J.
                                               (R.V. Raveendran)



New Delhi;                                     ............................J.
February 08, 2011.                             (A.K. Patnaik)

MARUTI 800 CAR- INCREASE IN EXCISE DUTY PAYABLE BY WHOM ?

1

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION(Civil) No(s).10364/2006

RAVINDER RAJ Petitioner(s)

VERSUS

M/S. COMPETENT MOTORS CO. PVT. LTD.&ANR. Respondent(s)

WITH SLP(C) NO. 9739-9740 of 2009

O R D E R

Two Special Leave Petitions, being SLP(C)

Nos. 10364 of 2006 and 9739-9740 of 2009, have

been filed against the judgment and order dated

19th July, 2005, passed by the National Consumer

Disputes Redressal Commission at New Delhi in

Revision Petition No.1485 of 2005 and the order

dated 7th August, 2008 passed by the said

Commission in Revision Petition No.2974 of 2005

filed by the respondent No.1, Maruti Udyog

Limited and also M.A.No.599 of 2006 in Revision

Petition 1533 of 2005 filed by the respondent

No.2, namely, Competent Motors Co.Pvt.Ltd., the

dealer.

2. The petitioner, Mr. Ravinder Raj, who is

appearing in person, applied to Maruti Udyog

Ltd.in 1985-1986 for booking a Maruti Car-800 and

2

deposited a sum of Rs.10,000/- as initial/advance

booking payment. On 15th July, 1988, the

respondent No.2 informed the petitioner by letter

of even date that his Maruti Car Allotment

No.0802-N-04051 had matured for delivery and

requested the petitioner to make payment of the

full amount of the price of the car for delivery

of the vehicle after completing the necessary

formalities. Pursuant to the above letter, the

petitioner on 16th February, 1989, paid a total

amount of Rs.78,351.05 which covered the price of

the vehicle, insurance charges and other minor

charges, including registration charges. There

is no denial that the petitioner had opted for a

cream colour vehicle.

3. On 1st March, 1989, there was an increase

in the excise duty payable, causing a price hike

of about Rs.6710.61. On 18th March, 1989, the

petitioner received a letter from the respondent

No.2 to deposit the excess amount payable as

excise duty, and, accordingly, the petitioner did

so under protest on 16th February, 1989.

4. The official billing in respect of the car

was done on 5th April, 1989.

5. The petitioner has contended that the

delay in delivery of the vehicle to him by the

3

respondents was not occasioned by any failure or

negligence on his part and the liability to pay

the increased amount on account of increase in

excise duty, was not that of the petitioner, but

of the respondents concerned. The petitioner,

therefore, applied to the District Consumer Forum

for a direction upon the respondents to bear the

increase in excise duty resulting in increase in

the price. Such a prayer was rejected by the

District Consumer Forum. The petitioner then

went to the State Forum which allowed the

petitioner's claim. Against the said order,

the respondents went before the National

Commission, which reversed the order passed by

the State Forum. It is against the said order

that the petitioner has come to this Court by way

of this Special Leave Petition.

6. As indicated hereinabove, the main ground

urged by the petitioner is that since he was not

responsible for the delay in the delivery of the

vehicle, he should not be made to bear the

increase in the price, particularly, when from

the documents, as indicated by him, the vehicle

of the colour chosen by him was available with

the respondents. He, therefore, submitted that

the order of the National Forum was erroneous and

4

was liable to be set aside.

7. Appearing for the dealer, M/s.Competent

Motors Co.Pvt.Ltd., Ms. Sapna Sinha, learned

advocate pointed out that even from the receipt

of the amount paid by the petitioner on 16th

February, 1989, it will be clear that the amount

paid was subject to the price prevailing on the

date of the invoice. According to learned

counsel, since the bill was dated 5th of April,

1989, it was the petitioner who was required to

bear the increase in price on account of the

increase in excise duty. Furthermore, she

reiterated that the colour which the petitioner

had wanted was not available at that point of

time, although, from the documents it would

appear that the same was available. According

to her, the said documents only indicated that

these were the colours in which the cars were

being manufactured and did not really indicate

the fact that such a colour was available on a

particular date.

8. According to her, there was no negligence

on the part of the dealer since having received

intimation about the readiness of the vehicle,

the respondent No.2 had immediately informed the

petitioner, but unfortunately, in the meantime,

5

the price had risen. According to the learned

counsel, the respondent No.2 could not,

therefore, be made liable for the increase in the

price.

9. Mr. Dayal, appearing for the the Maurti

Udyog Limited, while adopting the submissions

made by Ms. Sinha, also added that having regard

to Section 64 of the Sale of Goods Act, 1930,

the burden of any increase in the price by way of

additional taxes would have to be borne by the

customer and not by the manufacturer. He also

reiterated that since there was no negligence on

the part of the manufacturer in making the

vehicle available to the petitioner and since no

mala fide intention had been proved, the

petitioner would have to bear the increase in the

prices.

10. Having considered the submissions made, we

may refer to the letter of 15th July, 1988, which

had been written on behalf of the respondent No.2

to the petitioner indicating that the

petitioner's allotment No. had matured for

delivery. In the second paragraph of the letter,

the respondent No.2 requested the petitioner to

complete the modalities for effecting delivery of

the car against the allotment number. It was

6

categorically indicated that on receiving

payment, delivery would be effected in the

sequence of priority. Coupled with the above is

the proforma invoice dated 15th July, 1988, where

it was further indicated that the price

prevailing at the time of billing would be

applicable, despite the fact that the details of

the price of the vehicle were set out in the said

invoice.

11. As indicated hereinabove, even in the

receipt given to the petitioner for payment of

the amount in the proforma invoice, it had been

indicated that the prices prevailing on the date

of billing would apply.

12. In this case, the billing was done on 5th

of April, 2009. In the absence of any evidence

of any deliberate intention on the part of the

respondents to delay delivery of the vehicle, we

are unable to agree with the petitioner that the

increase in price has to be borne by the

respondents. The petitioner had relied on two

decisions of this Court in the case of Omprakash

Vs. Assistant Engineer, Haryana Agro Industries

Corpn. Ltd., 1994(3)SCC 504 and Mohinder Pratap

Dass Vs Modern Automobiles and Anr. 1995(3)SCC

581, on the same issue. The said two decisions

7

in our view are not applicable to the facts of

this case, on account of the fact that in the

said two matters patent deficiency in the service

had been found by the Court and it was also

pointed out that there was no satisfactory

explanation for the delay in delivery of the

goods to the consumers, which is not the case as

far as this particular matter is concerned.

13. Furthermore, having regard to the

provisions of Section 46A(1)(b) of the Sale of

Goods Act, 1930, it is the liability of the

petitioner to pay the extra price when the excise

duty had been enhanced prior to the delivery of

the vehicle.

14. In such circumstances, the Special Leave

Petition fails and is dismissed.

15. Consequently, in view of this order, the

other Special Leave Petition in which interest

on the amount claimed has been prayed for, does

not survive and is also dismissed.

16. There will, however, be no orders as to

costs in both the matters.

...................J.

(ALTAMAS KABIR)

8

...................J.

(CYRIAC JOSEPH)

New Delhi,

February 10, 2011.

ABOUT THE PLIGHTS OF PROSTITUTES

                                                     REPORTABLE


                   IN THE SUPREME COURT OF INDIA

                   CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NO. 135 OF 2010


Budhadev Karmaskar                                   ..Appellant

                          versus

State of West Bengal                                 ..Respondents


                          O R D E R


       Heard learned counsel for the appellant.

       This   Appeal     has   been   filed   against     the    impugned

judgment and order dated 25th July, 2007 passed by the High

Court of Calcutta in C.R.A. No. 487 of 2004.

       The facts have been set out in the impugned judgment

and hence we are not repeating the same here except wherever

necessary.

       This is a case of brutal murder of a sex worker.

Sex workers are also human beings and no one has a right to

assault or murder them.        A person becomes a prostitute not

because she enjoys it but because of poverty.             Society must

have sympathy towards the sex workers and must not look down

upon them.    They are also entitled to a life of dignity in

view of Article 21 of the Constitution.

       In    the    novels   and   stories    of   the   great   Bengali

Writer Sharat Chand Chattopadhyaya, many prostitutes have
been   shown   to    be   women   of   very    high   character,   e.g.,

Rajyalakshmi in 'Shrikant', Chandramukhi in 'Devdas' etc.

                                   -2-

The plight of prostitutes has been depicted by the great

Urdu poet Sahil Ludhianvi in his poem 'Chakle' which has

been sung in the Hindi film Pyasa "Jineh Naaz Hai Hind Per

wo kahan hain" (simplified version of the verse 'Sana Khwan-

e-taqdees-e-Mashrik Kahan Hain').

        We may also refer to the character Sonya Marmelodov

in Dostoyevsky's famous novel 'Crime and Punishment'.              Sonya

is depicted as a girl who sacrifices her body to earn some

bread for her impoverished family.

        Reference may also be made to Amrapali, who was a

contemporary of Lord Buddha.

        In the present case, the incident happened on 17th

September, 1999 at about 9.15 p.m.            The deceased Chayay Rani

Pal alias Buri was living in a red light area and was a

resident of Room No.8 of Premises No.19, Jogen Dutta Lane in

Calcutta.      She was evidently a sex worker. The appellant

Budhadev kicked her with fists and legs, and she fell down

on the floor.       The appellant then caught her by her hair and

banged her head against the floor and the wall several times

which left the victim bleeding from her ear, nose and head.

The incident was witnessed by four persons, Pw2-Abida, PW4-

Maya, PW7-Asha and PW8-Parvati.

        PW2-Abida has deposed that she saw the appellant-
accused catching the victim by her hair and banging her head

against the wall.        The victim was profusely bleeding through

her nose and mouth.         On seeing this, Abida started shouting

and then the accused pushed her and went down and fled away.

PW8-Parvati saw the victim being mercilessly beaten by the

                                     -3-

accused-appellant, and the same is the evidence of PW7-Asha.

In the post mortem, as many as 11 injuries on the body of

the victim were found, eight of which were on various parts

of the face and forehead.

          The police was informed about the incident over the

telephone as is evident from the testimony of PW2 Abida.

After the police arrived on the spot, sample of the blood

spilled    from    the   body   of   the   victim   was   collected   and

photographs taken.          The victim was brought by Asha Khatoon

and others to the hospital where she was found 'dead on

arrival'.       Blood was oozing out from her ear and nostril.

There was swelling on the left eyeball and left eyebrow.

Thus,     the     medical     evidence     corroborates     the   ocular

testimony.

          PW10-Dr. Amitava Das, the Medical Officer who held

the post mortem examination of the dead body of deceased

Chhaya Rani Pal found the following injuries on her person:



          1) Abrasion 1" x = " over the nose just below
             the nasal bridge.
          2) Abrasion = " x = " over left side forehead =
             " above left eyebrow 3" left to midline.
      3) Abrasion = " x = " over left side of
          forehead just over the left eye brow 2" left
          mid line.
       4) Bruise 2" x 1" over left upper eye lid.
       5) Bruise 2" x 1" over anterior aspect of mid
          part of nose.
       6) Abrasion = " x < " over right side of
          forehead 1" above right eye brow 2" right to
          mid line.
       7) Abrasion 2" x 1" over right side of face
          just below the right eye and just right to
          outer canthus of right eye.
       8) Lacerated wound = " x < " x scalp over left
          partial region 4 = " left to anterior mid
          line and 2" below left parietal eminence.
                           -4-

       9) Abrasion 3" x = " over posteriorateral
          aspect of right forehead 1" below right
          elbow.
       10)Abrasion 1" x = " over anterior medial
          aspect of lower part of right forearm 1"
          above right wrist.
       11)Abrasion 4" x 3" over upper part of
          posterior aspect of right thigh 7" above
          right knee joint.


       On   dissection,   the   Doctor   found   the   following

injuries:

       1) Heamatoma 3 = " x 2" in the scalp tissue
          over right frontal region.
       2) Heamatoma 3 = " x 2" in the scalp tissue
          over left frontal region.
       3) Haematoma 3 = " x = " in the scalp tissue
          over left partial region.
       4) Fissured fracture 3" long more or loss
          longitudinal over left parietal temporal
          bone.
       5) Haematoma 2" x 1" in the scalp tissue over
          right parietal region.
       6) Subdural hemorrhage present involving the
          right parietal and temporal lobe.
       7) Lacerated wound = " (half) x < " x substance
          over right parietal lobe of brain substance.
          The abrasions were non-scabbed and red in
          colour.    The bruises were dark red in
          colour. The margins of the lacerated wounds
          were irregular and red in colour.    All the
          injuries showed signs of vital reactions. No
              other injury except those described could be
               detected even on careful dissection and
               examination.

          PW10    Dr.    Amitava    Das,       Medical    Officer    of    Mauza

Burdwan Medical College, opined that the death was due to

the effect of the injuries as noted anti-mortem in nature;

that     all     the    injuries    as    noted     in    the     post    mortem

examination       report    might   be     caused    if    a    person    pushed

against the wall and it may be homicidal in nature."

          The injuries above-mentioned show the brutality of

                                         -5-

the crime. The head of the deceased was battered again and

again in a hideous and barbaric manner.

          The trial Court has rightly convicted the appellant

under Section 302 IPC and sentenced him to life imprisonment

and the High Court has not committed any error in upholding

the conviction and sentence imposed by the trial Court.

          We find no reason to disbelieve the testimony of the

eye witnesses in this case, namely, PW2, PW7 and PW8 which

corroborates the medical evidence. The appellant-accused has

committed murder in a brutal manner of               a helpless women and

deserves no sympathy from this Court.

          For     the    reasons    given       above,     this     appeal    is

dismissed.

          Although we have dismissed this Appeal, we strongly

feel that the Central and the State Governments through

Social     Welfare         Boards    should       prepare       schemes      for
rehabilitation    all    over     the   country    for    physically      and

sexually abused women commonly known as prostitutes                    as we

are of the view that the prostitutes also have a right to

live with dignity under Article 21 of the Constitution of

India since they are also human beings and their problems

also need to be addressed.

         As already observed by us, a woman is compelled to

indulge in prostitution not for pleasure but because of

abject poverty. If such a woman is granted opportunity to

avail    some technical or vocational training, she would be

able to earn her livelihood by such vocational training and



                                    -6-



skill   instead of by selling her body.

         Hence,   we     direct     the    Central       and     the     State

Governments       to       prepare         schemes         for         giving

technical/vocational training to sex workers and sexually

abused women in all cities in India.                The schemes should

mention in detail who will give the technical/vocational

training and in what manner they can be rehabilitated and

settled by offering them employment. For instance, if a

technical training is for some craft like sewing garments,

etc.    then   some    arrangements       should   also    be     made    for

providing a market for such garments, otherwise they will

remain unsold and unused, and consequently the women will
not be able to feed herself.

        We propose to have the response of the Centre and

the States in this regard and hence the case              shall be

listed before us again on 04.05.2011 to be taken up as

first   case   on   which   date   the   first   compliance   report

indicating therein the first steps taken by the Central and

the State Governments in this regard shall be submitted.

        Issue notice to the Central Government and all the

State Governments which will also file responses by the

date fixed for hearing.



                                   ...........................J.
                                   [MARKANDEY KATJU]


NEW DELHI;                         ...........................J.
FEBRUARY 14, 2011                  [GYAN SUDHA MISRA]