Supreme Court of India

MS.S.versusSUNIL KUMAR AND ANR.

Citation: 2015 INSC 1038
Decided: 16 November 2015
Disposal: Dismissed
Bench: PINAKI CHANDRA GHOSE

Holding

The appeal was held to be abated and the judgment was recalled because the accused had died before the judgment, a fact not known to the Court.

Summary

The appellant Ms. S appealed against Sunil Kumar, who had been convicted by the Supreme Court on 10 April 2015 for an offence under Section 376(1) of the Indian Penal Code and ordered to be taken into custody. The Court later learned that the accused had died on 14 October 2012, a fact that was not known to the Court at the time of the judgment and was not raised by any party. Since the death of the accused was not within the Court's knowledge, the judgment could not be given effect. Consequently, the Supreme Court recalled its April 2015 judgment, held that the appeal had become abated due to the death of the accused, and dismissed the appeal. The conviction was therefore set aside as the appellant could not be sentenced to a deceased person.

Issues considered

Whether a judgment convicting an accused can be given effect when the accused has died before the judgment, but the death was not known to the Court at the time of the judgment.
Whether the appeal abates upon the death of the accused when the death is discovered after the judgment.

Legislation cited

Indian Penal Code, 1860s. 376(1)

Subjects

criminal appealabatementdeath of accusedconvictionIPC 376Supreme Courtrecall of judgment

Judgment

                    [2015] 11 S.C.R. 77


                          MS.S.                                A
                             v.
                SUNIL KUMARANDANR.
            (Criminal Appeal No.1581 of 2009)
                                                               B
                  NOVEMBER 16, 2015
 [PINAKI CHANDRA GHOSE AND R.K. AGRAWAL, JJ.]
      Abatement- Of-appeal- Supreme Court by judgment
dated April 10, 2015 had convicted respondent No. 1/accused C
uls. 376(1) /PC directing to take him into custody- Later the
Court was informed that the accused had already died on
October 14, 2012- Held: The factum of death of the accused
was not within the knowledge of the Court at the time when
the judgment dated April 10, 2015 was passed - The same        o
cannot be given effect to - Therefore, the judgment dated
April 1o, 2015 is recalled, dismissing the appeal for having
become abated - Judgment - Recalling of - Penal Code,
1860-s.376(1).
    CRIMINAL APPELLATE JURISDICTION: Criminal                  E
Appeal No. 1581 of2009

     From the Judgment and Order dated 28.11.2007 of the
High Court of Chattisgarh at Bilaspur in Cr. Rev. No. 550 of
2007.                                                          F

     Kanhaiya Priyadarshi for the Appellant.

    Shashi Juneja, C. D. Singh, Vanshaja Shukla for the
Respondents.                                                   G

     The order of the Court was delivered

                        ORDER

     1. By a judgment delivered on April 10, 2015, this Court H
                            77
78         SUPREME COURT REPORTS                   [2015) 11 S.C.R.


A allowed the appeal and convicted respondent No.1 for having
  committed the offence under Section 376(1) of the Indian Penal
  Code and sentenced him to undergo imprisonment for seven
  years and also imposed a fine of Rs.5,000/-which was to be
  paid in its entirety to the appellant. However, the acquittal of
B Respondent No.1 for the offence under Section 3(2)(V) of the
  Act was confirmed. Respondent No.1 was directed to be taken
  into custody forthwith to undergo the sentence as aforesaid.
                             .               i

           2. In spite of service of notice, when the appeal was fixed
C    for hearing from time to time, none appeared before this Court
     to represent respondent No.1. In these circumstances, it led
     this Court to appoint an amicus in this matter to appear on
     behalf of respondent No.1 accused.

o          3. The State of Chhattisgarh was duly represented by its
     counsel. The appellant was also represented through the
     Supreme Court Legal Services Committee. However, the State
     and the appellant, none of the parties, drew the attention of
     this Court that respondent No.1/accused has already died.
E    Accordingly, hearing of appeal was taken up and concluded
     on 13th March, 2015. The judgment was delivered by this Court
     on April 10, 2015.

         4. At that point of time it was not within the knowledge
F of this Court that respondent No.1/accused has died.
  Subsequently, when the matter was placed before us, we have
  been informed by the learned counsel Ms. Shashi Juneja, that
  respondent No.1 Su nil Kumar has died on 14.10.2012. Since
  the said fact was not within knowledge of this Court nor the
G attention of this Court was drawn to the said fact by the parties,
  including the State, it would be obvious that the judgment/order
  dated April 10, 2015 cannot be given effect to at this stage.

         5. Accordingly, the judgment and order dated April 10,
H    2015 already passed in this matter, has to be recalled,
                      MS. S. v. SUNIL KUMAR                       79


recording. the fact that the accused respondent No.1 had A
expired before the appeal was heard out. Hence, this appeal
had become abated.
      6. Accordingly, on the basis of the statement made by
the learned counsel appearing for the State, the judgment dated B
April 10, 2015, is recalled and this criminal appeal is dismissed
for having become abated.
Kalpana K. Tripathy                           Appeal dismissed.

Search Indian case law

Ask in plain English, not just keywords. 25,000 AI words free, no card.

Try "criminal appeal"Sign in to search