November 21, 2024
CRPC Law of Crimes 2DU LLBSemester 2

Ajay Pandit @ Jagdish Dayabhai Patel v. State of Maharashtra (2012) 8 SCC 43

K.S. Radhakrishnan, J.-Death sentence has been awarded by the High Court of Bombay to

Ajay Pandit @ JagdishDayabhai Patel for double murder, in separate incidents, one for the

murder of NileshBhailal Patel and another for the murder of Jayashree. The Bombay High Court

heard both the appeals Criminal Appeal No. 46 of 2000 and Criminal Appeal No. 789 of 2001

together and rendered a common judgment on 22nd December, 2005 confirming the order of

conviction and enhancing the sentence of life imprisonment to death and ordered to be hanged

till death against which this appeal has been preferred.

2. The accused Ajay Pandit @ JagdishDayabhai Patel was a dentist by profession,

known as Doctor Jagdish Patel at his DhabasiMohalla, District Kheda, Gujarat. He possesses a

degree in Dental Hygienist and Dental Mechanic (D.H.D.M.) from the Gujarat University.

Professional income was not sufficient for him to lead a lavish and luxurious life, he had other

evil and demonic ideas in mind, to make quick and easy money. Self publicity was given of his

make-belief contacts with the officials of the American Embassy by which he lured the

vulnerable into his net, for sending them to America for better prospects in life. Several persons

fell in his net like Nilesh and Jayashree and few others narrowly escaped from the clutches of

death.

3. We may first deal with the facts arising out of the judgment of the Bombay High

Court in Criminal Appeal No. 46 of 2000 in which the High Court, convicted the accused under

Section 419 of the Indian Penal Code (for short the IPC) and sentenced to suffer R.I. for one

year, under Section 420 of the IPC, R.I. for two years and fine, under Section 302 of the IPC

life imprisonment with fine which was converted to death.

4. Doctor Jagdish Patel the accused had developed contacts with a family of one Dilip

Manilal Patel and he used to visit their house at Bhayandar and Kandivali since 1993. During

those visits, the accused used to boost that he had contacts with the officials of the American

Embassy which kindled hopes in the minds of Dilip Patel and his family members and they

decided to send NileshBhailal Patel, cousin brother of Smt. Sarala Patel, wife of Dilip Patel, to

America using the accused’s alleged influence in the American Embassy. A deal was struck

and the accused demanded an amount of Rs.2,50,000/- for realization of their dream.

Negotiations took place and the amount was reduced to Rs.1,10,000/- as an initial payment, and

the balance was to be paid after getting Nilesh employment in America. Dilip Patel in October

1993 paid Rs.60,000/- to the accused and the balance amount of Rs.50,000/- was paid by

Mahendra Bhailal Patel, brother of the deceased – Nilesh to the accused. Noticing that even

after payment of money, the accused was not fulfilling his promises, various meetings and

phone calls took place between the accused and the family of Nilesh. The accused reiterated his

promise and later asked Dilip Patel to send Nilesh to Bombay Central Railway Station on

8.2.1994 with return ticket of the accused. The accused had also requested Dilip Patel a further

amount of Rs.3500/- towards medical expenses and also for arranging visa. Dilip Patel had

assured the accused that he himself would be coming to Bombay with the required amount. As

promised, Dilip Patel reached Bombay in the afternoon of 8.2.1994 and found the accused

waiting at Bhulabhai Desai Road near the American Consulate. The accused told Dilip Patel

that the necessary papers had been submitted to the Consulate and asked to leave the place.

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Dilip Patel accordingly left the place and that was the last time, Dilip Patel saw Nilesh in the

company of the accused that was around 3 o’ clock. In the evening of 8.2.1994 at about 5 o’

clock, Dilip Patel received a phone call from the accused stating that the formalities had been

completed and Nilesh would be coming home late in the night. Dilip Patel reached home but

not Nilesh. Dilip Patel contacted the accused in the morning of 9.2.1994 and he was informed

by the accused that Nilesh was waiting upto 5.30PM on the previous day at Bombay Central

Railway Station and that he would be back. Dilip Patel contacted the accused on several

occasions to know whereabouts of Nilesh. Meanwhile an attempt was made by the accused

through one Tikabhai to inform Dilip Patel that Nilesh had already left for America.

5. Dilip Patel in November 1994 read in a local newspaper Sandhya Jansatta of a news

item of an incident of attempt to murder and murder by administering some tablets to three

persons by one Doctor by name Jagdish. Dilip Patel also read in Mid Day Evening Daily dated

5.11.1994 about arrest of Dr. Jagdish Patel the accused. On the basis of this information, Dilip

Patel approached Gamdevi Police Station on 13.11.1994 and narrated the entire story to the

police. The statement was accordingly recorded and a photograph of the dead body of

unidentified person found in Room No. 103 of the Hotel Aradhana at Nana Chowk in the

evening of 9.2.1994 was also shown. In the evening of 8.2.1994, the accused had booked Room

No. 103 on the first floor of that Hotel. The accused left the Hotel about 7.45PM in the evening

of 8.2.1994 keeping the room locked and he did not return. On 9.2.1994, for the purpose of

cleaning the room, it was opened with a duplicate key and the dead body of Nilesh was found.

The dead body was sent for post-mortem but prior to that police completed other formalities,

finger print experts also did their job, articles received were sent to the Forensic Laboratory,

C.A. report was obtained. Till August 1994, there was no trace of the suspect and the

investigation was continuing. In fact on 30.8.1994, case was classified as true but not detected.

The accused was, however, arrested by Malabar Hill Police in C.R. No. 278/94 for murdering

one woman – Jayashree and for the attempted murder of two other persons at Hotel Kemps

Corner. The accused was identified by Dilip Patel, his wife Sarala Patel and Mahendra Patel

brother of the deceased – Nilesh. This was the brief background of the first case.

6. We will now refer briefly to the facts of the second case which came up before the

Bombay High Court vide Criminal Appeal No. 789 of 2001. In the second case, Dr. Jagdish

Patel had three persons in his net aspiring for better prospects in America. One

KaushikbhaiSanabhaiu Patel was leading a normal family life with his wife Jayashree at

Labhvel, District Anand, in the State of Gujarat. One Jagdish @ Harishbhai Patel was the cousin

brother of Jayashree. All the three were also dreaming better prospects in America. In fact, they

had contacted Joy Travel Agency for the said purpose in October 1994. Kaushikbhai was told

by the owner of Joy Travels that the expenses of sending one person to America would be

around Rs.7,23,000/-. Kaushikbhai paid Rs.20,000/- to the travel agent for himself and Jagdish.

While he was nurturing the idea of going to America, the accused seized that opportunity and

got acquainted with Kaushikbhai and Jagdish. The accused promised that he would realize their

dreams for which he demanded a huge sum. Kaushikbhai expressed his inability to the accused

to pay such huge amount for a person to go to America and consequently withdrew his request.

The accused, however, could prevail upon him by suggesting that he would arrange a loan for

him for the time being through one Ramchandra and he only need to purchase the tickets. On

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the accused initiative, Ramchandra visited the house of Kaushikbhai on 1.11.1994 and gave

Rs.4,00,000/- to him, as instructed by the accused, by way of loan.

7. Kaushikbhai, his wife – Jayashree and Jagdish then boarded the train to Bombay

Central from Baroda Railway Station. Few of their relatives were present at the Railway

Station, Baroda to see them off to Bombay. Accused reached Bombay Central Railway Station

in the early hours of 2.11.1994 and all the three along with the accused went to the Hotel Kemps

Corner and two Rooms Nos. 202 and 206 were booked in the name of the accused. The accused

informed them that all the requisite formalities had been completed and a Doctor, who was

supposed to issue the medical certificate, would be coming at 4.30 pm on the same day to the

hotel for medical check-up. The accused demanded money for completing other formalities,

Rs.60,000/- was received from Kaushikbhai and Rs.40,000/- was received from Jagdish. A

cheque drawn on Punjab National Bank, Anand for Rs.14,50,000/-, one promissory note of

Rs.8,50,000/- and Rs.4,37,000/- were given to the accused by Kaushikbhai. Later, the accused

gave one capsule and two tablets each to Kaushikbhai, Jayashree and Jagdish which they were

asked to take before the medical check-up, which they did. Later, Jayashree went to Room No.

202 and Kaushikbhai and Jagdish remained in Room No. 206. Kaushikbhai and Jagdish started

feeling drowsiness and a sleeping sensation and they lied down on the bed. The accused then

administered an injection on the abdomen of Kaushikbhai who went fast asleep. Jagdish by that

time was already fast asleep and that was the last time, they saw the accused. In the mid-night,

Kaushikbhai regained consciousness, he felt some foul play and alerted the Hotel Manager and

they went to the room of Jayashree and got the room opened, but Jayashree was found dead.

Intimation was given to Malabar Hill Police Station and complaint of Kaushikbhai was

recorded. Police arrested the accused in November 1994.

8. The trial court as well as the High Court had elaborately discussed the various steps

taken by the investigating agency to unravel the truth and hence, we are not dealing with those

facts in detail. The prosecution in the case of death of Nilesh examined 17 witnesses. PW1 to

PW4 are the employees of the hotel and PW5 and PW6 are the relatives of the deceased Nilesh.

We have also gone through the evidence of other witnesses critically and it is unnecessary to

repeat what they have said, since the trial court as well as the High Court had elaborately

discussed the evidence given by those witnesses.

9. So far as the death of Nilesh is concerned, there was no eye witness to the incident

and the guilt of the accused could be brought out by the prosecution only by circumstantial

evidence. The direct evidence of PW5 and PW6 preceded the death of Nilesh. Therefore, it is

necessary to deal with their evidence. PW5 is the sister of the deceased Nilesh by name Sarala

Dilip Patel. She had deposed that she knew the accused since 1991. Further, she had deposed

that in January 1993, the accused made a proposal about sending the deceased “ Nilesh to

America for which he demanded Rs.3,50,000/-. The evidence clearly indicates what had

happened from 1993 till the death of Nilesh. She stated that after Nilesh had gone to Bombay,

his whereabouts were not known. She had also deposed that on 27.3.1994, her husband lodged

a complaint at Kandivali Police Station since Nilesh was found missing. Further, they had also

noticed the news item appeared in various newspapers about the arrest of the accused in respect

of some other case. On 13.11.1994, her husband had again lodged a complaint as to missing of

Nilesh. She had also narrated the steps they had taken on coming to know that her brother

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Nilesh was missing. Evidence given by this witness is consistent with the case of the

prosecution and there is no reason to disbelieve the version of this witness.

10. PW6 Dilip Patel, the husband of PW5 – had deposed that he knew the accused since

1991 and the accused had come with the proposal for sending Nilesh to America stating that he

had good connections with the officials of the American Embassy. Details of the amounts paid

for the said purpose was also given, in detail, in his deposition. The details of the various

telephone calls he had with the accused before the incident as well as after the incident were

minutely stated in his oral evidence. PW6 had also deposed that he had also gone to Bombay

with cash as directed by the accused. Further, he had also deposed that on 8.2.1994, Nilesh had

left his house for Bombay and that PW6 had also gone to Bombay since the accused asked him

to meet at Opera house at 11.30AM on 8.2.1994. PW6, it was stated, saw the accused and Nilesh

near the bus stop of Blobe Radio. The accused told him that at about 3.00 pm on 8.2.1994 he

had submitted the papers before the Embassy and asked PW6 to leave the place stating that

Consulate would not like the presence of too many persons. PW 6, therefore, left the place

leaving behind the accused and Nilesh. Nilesh did not return home, search was made and a

complaint was lodged on 28.3.1994 at Kandivali Police Station. On 6.9.1994, notice was sent

through advocate to Kandivali Police Station. PW 6 also stated that he had met accused at

village Borsad Chaukadi and the accused gave evasive answers. Later, PW 6 came across a

news item in Sandhya Jansatta wherein reference was made to one Dr. Jagdish who had

committed murder and attempted to commit murder of few other persons. News item also

appeared in other newspapers as well.

11. PW 6 was cross-examined at length but the defence could not demolish his evidence

or the evidence of other witnesses including that of PW5. Evidence, in this case, proved beyond

reasonable doubt that it was the accused who lured Nilesh for sending him to America. Facts

would clearly indicate that it was the accused who had extracted money giving false hopes. The

deceased was also seen by PW 6 last, in the company of the accused. PW 6 had also made

payment to the accused for medical expenses. PW 5 and PW 6, therefore, proved the chain and

links from the stage of acquaintance with the accused till the stage of Nilesh being seen in the

custody or company of the accused, for the purpose of sending Nilesh to America.

12. The prosecution had examined PW 1 to PW 4 to prove the subsequent events and

the steps taken. PW 1 to PW 4 were all attached to Hotel Aradhana or guest house of Aradhana.

PW 1 is an independent witness Manager of the Hotel Aradhana. He narrated what had

happened at his Hotel. PW 1 also saw the deceased in the company of the accused. He saw the

accused taking Nilesh in Room No. 103 and later coming back alone leaving the hotel without

handing over the key at the reception counter. Nothing had been brought out in the cross

examination of these witnesses to contradict what he had stated.

13. Sister of the accused was also examined in this case as PW 14, she had narrated, in

detail, the professional and other details of the accused. The evidence of the rest of the witnesses

had also been elaborately dealt with by the High Court. Learned counsel appearing for the

accused had also not seriously attacked the findings and reasoning given by the trial court as

well as the High Court in ordering conviction and his thrust was on the quantum of sentence

awarded, and later death penalty.

14. We have already indicated the modus operandi adopted by the accused in the second

case was also almost the same. Few facts of this case have already been dealt in the earlier

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paragraphs of this judgment and hence, we may directly come to the evidence of the key

witnesses in this case. Jayashreethe victim was poisoned by the accused at Hotel Kemps Corner.

PW 1 and PW 5 were direct victims of the accused who fortunately survived. PW 1 was the

husband and PW 5 was the brother of Jayashreethe deceased. PW 1 and PW 5 had narrated, in

detail, what transpired prior to the incident. The details of the money paid to the accused for

sending them to America had been elaborately stated in their oral evidence and the same had

been extensively dealt with by the trial court as well as the High Court, hence, we are not

repeating the same. They were cross-examined, at length, by the defence. Nothing was brought

out to discredit their version. There was no reason for these witnesses to depose falsely against

the accused and they have no motive in doing so. Evidence of PW 1 and PW 5 are consistent

and have not been shaken at all by the defence. No doubt has been created about the veracity

of their testimony. PW 1 and PW 5 were the direct victims and were also the eye witnesses to

the entire transaction and we have critically gone through the evidence adduced by PW 1 and

PW 5 and nothing was brought out to discredit their evidence.

15. The prosecution examined sixteen witnesses PW 2, PW 4, PW 14 were the staff

members of the hotel Kemps Corner – they had narrated, in detail, the manner in which the

accused booked the room, paid the amount, took the three witnesses to both the rooms. The

hotel witnesses identified the accused in the court as well as in the identification parade. The

prosecution examined PW 8 panch witnesses before whom the accused voluntarily gave

statement u/s 27 of the Evidence Act which led to the discovery of huge cash amount, cheques,

promissory notes and various articles like passports, rubber stamps etc.

16. PW 6 was a Doctor who examined PW 1 and PW 5 and found they were under the

influence of sedatives and in a drowsy condition. We have also gone through, critically, the oral

evidence and the documents produced in this case and found no reason to take a different view

from that of the trial court and the High Court on conviction. We have also gone through the

statement under section 313 Cr.P.C. made by the accused in both the cases which was of total

denial of the crime. The accused, a professional, wanted to make quick and easy money and in

that process lured people giving false hopes of sending them to America utilizing his alleged

contacts with the American Embassy. The accused, though educated, brought discredit to his

profession and to the dentist community in general. Education and professional standing had

no influence on the accused and his only motto was to make quick money and for achieving the

same, he would go any extent and the Dentist turned killer gave no value to the human life. The

Dentist took away the life of two human beings as if he was uprooting two teeth.

17. Nilesh the deceased, victim in the first case was an unmarried boy of 25 years and

yet to become mature enough to know the world around him. All the hopes dashed on the

eventful day when he was murdered in a brutal manner not only by inflicting injuries by deadly

weapon on vital parts of the body but also injuries on the testis causing him immense suffering

and pain.

18. Jayashree, the deceased – victim was administered excessive tablets by the Dentist

turned killer and Jayashree died of that in the night of that fateful day. The medical evidence

clearly indicates that Kaushikbhai, Jayashree and Jagdish had taken one capsule and two tablets.

The accused had advised them to take the tablets prior to medical check-up so that they must

get favorable medical certificates. Kaushikbhai and Jagdish started feeling drowsiness.

Kaushikbhai was about to regain consciousness but the accused gave an injection on his

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abdomen. Kaushikbhai tried to avoid the injection but could not resist due to drowsiness and

injection was administered due to which he went fast asleep. Unfortunately, Jayashree

succumbed to the poison administered and died. The Bombay High Court noticing the ghastly

manner in which the accused had murdered Nilesh as well as Jayashree and poisoned PW 1 and

PW 5, considered it as a rarest of rare case warranting death sentence.

19. The High Court heard the arguments of the advocate for the accused as well as the

prosecutor on the point as to whether the High Court could enhance the sentence of the accused

from life to death. Having noticed that the High Court has the power to enhance the sentence

from life imprisonment to death, the High Court issued a notice on 1.12.2005 to the accused to

show cause why the sentence of life imprisonment be not enhanced to death sentence. The

operative portion of the order reads as follows:

We have heard the arguments of learned advocate for the petitioner as well as

learned APP for the State for quite some time on two occasions. In exercise of

suo-moto powers and on the basis of judgment of the Supreme Court, it will be

necessary to hear the accused as to why his sentence should not be enhanced

from life imprisonment to death. Therefore, the accused be produced by the

Kalyan District Prison Authorities before this Court on 12th December 2005.

20. The accused was produced before the Court on 12th December 2005 but the

advocate representing the accused was absent. Consequently, the matter was adjourned to

13.12.2005. On 13.12.2005, the accused as well as his advocate were present and the Court on

13.12.2005 recorded the following statement of the accused which reads as follows:

(Accused understands English. He gives the statement in English. We are

recording the same in hisown language.) I am not involved in the case. The

travel agent should also have been implicated in this case. I am not involved. I

am not guilty. (Repeatedly the accused was informed by us about the nature of

the show cause notice given. He made the aforesaid statement and he does not

want to say any more. Matter adjourned to 22nd December, 2005 at 3.00 for

Judgment.Accused to be produced on that day.

21. Mr. Sushil Karanjakar, learned advocate appearing for the accused submitted that

the High Court has not followed the procedure laid down under Section 235(2) of the Code of

Criminal Procedure (for short the Cr.P.C.) before enhancing the sentence of life imprisonment

to death. Learned counsel pointed out that having regard to the object and the setting in which

the new provision of Section 235(2) was inserted in the 1973 Code, there can be no doubt that

it is one of the most fundamental parts of the criminal procedure and non-compliance thereof

will ex facie vitiate the order. In support of his contention, learned counsel placed reliance on

the judgment of this Court in Santa Singh v. State of Punjab; (1976) 4 SCC 190 and a recent

judgment in Rajesh Kumar v. State through Government of NCT of Delhi; (2011) 13 SCC

706.

22. Mr. Shankar Chillarge, learned counsel appearing for the State, submitted that in

the facts and circumstances of this case, the High Court was justified in according maximum

sentence of death penalty, since on facts, it was found to be a rarest of rare case and the test laid

down by this Court in Bachan Singh v. State of Punjab; (1980) 2 SCC 684 has been fully

satisfied. Learned prosecutor submitted this is a case of double murder and attempt to commit

murder of two others and the manner in which the same was executed was gruesome. Further,

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it was pointed out that the procedure laid down under Section 235(2) Cr.P.C. was fully complied

with and there is no reason to upset the conviction/ sentence awarded by the High Court.

23. We heard the learned counsel on either side on this point at length. The original file

made available to this Court did not contain the copy of show cause notice dated 1.12.2005

issued by the High Court as well as the full text of the order passed by the High Court on

13.12.2005 recording the statement of the accused. We passed an order on 11.04.2012 to

produce the original files to examine whether the High Court had followed the procedure laid

down under Section 235(2) Cr.P.C. Records were made available and we went through those

records with great care. We have also perused the full text of the show cause notice dated

1.12.2005 issued by the High Court and the statement recorded by the High Court under Section

235(2) Cr.P.C. after summoning the accused.

24. We have to examine whether the High Court has properly appreciated the purpose

and object of Section 235(2) Cr.P.C. and applied the same bearing in mind the fact that they are

taking away the life of a human being.

25. Section 235 Cr.P.C. in its entirety is extracted for reference:

235. Judgment of acquittal or conviction (1) After hearing arguments and points of law (if any),

the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the

provisions of section 360 hear the accused on the question of sentence, and then pass sentence

on him according to law.

The necessity of inserting sub-section (2) was highlighted by the Law Commission in its 41st

Report which reads as follows:

It is now being increasingly recognized that a rational and consistent

sentencing policy requires the removal of several deficiencies in the present

system. One such deficiency is the lack of comprehensive information as to the

characteristics and background of the offender. The aims of sentencing become

all the more so in the absence of information on which the correctional process

is to operate.

The public as well as the courts themselves are in the dark about the judicial

approach in this regard. We are of the view that the taking of evidence as to

the circumstances relevant to sentencing should be encouraged, and both the

prosecution and the accused should be allowed to co-operate in the process.

The Law Commission in its Report had opined that the taking of evidence as

to the circumstances relevant to sentencing should be encouraged in the

process. The Parliament, it is seen, has accepted the recommendation of the

Law Commission fully and has enacted sub-section (2).

26. The scope of the abovementioned provision has come up for consideration before

the Apex Court on various occasions. Reference to few of the judgments is apposite. The courts

are unanimous in their view that sub-section (2) of Section 235 clearly states that the hearing

has to be given to the accused on the question of sentence, but the question is what is the object

and purpose of hearing and what are the matters to be elicited from the accused. Of course, full

opportunity has to be given to produce adequate materials before the Court and, if found,

necessary court may also give an opportunity to lead evidence. Evidence on what, the evidence

which has some relevance on the question of sentence and not on conviction. But the further

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question to be examined is whether, in the absence of adding any materials by the accused, has

the Court any duty to elicit any information from whatever sources before awarding sentence,

especially capital punishment. Psychological trauma which a convict undergoes on hearing that

he would be awarded capital sentence, that is, death, has to be borne in mind, by the court.

Convict could be a completely shattered person, may not be in his normal senses, may be

dumbfound, unable to speak anything. Can, in such a situation, the court presume that he has

nothing to speak or mechanically record what he states, without making any conscious effort

to elicit relevant information, which has some bearing in awarding a proper and adequate

sentence. Awarding death sentence is always an exception, only in rarest of rare cases.

27. In Santa Singh (supra), this Court has extensively dealt with the nature and scope

of Section 235(2) Cr.P.C. stating that such a provision was introduced in consonance with the

modern trends in penology and sentencing procedures. The Court noticed today more than ever

before, sentencing has become a delicate task, requiring an inter-disciplinary approach and

calling for skills and talents very much different from those ordinarily expected of lawyers. In

Santa Singh, (supra) the Court found that the requirements of Section 235(2) were not complied

with, inasmuch as no opportunity was given to the appellant, after recording his conviction, to

produce material and make submissions in regard to the sentence to be imposed on him. The

Court noticed in that case the Sessions Court chose to inflict death sentence on the accused and

the possibility could not be ruled out that if the accused had been given an opportunity to

produce material and make submissions on the question of sentence, as contemplated by

Section 235(2), he might have been in a position to persuade the Sessions Court to impose a

lesser penalty of life imprisonment. The Court, therefore, held the breach of the mandatory

requirement of Section 235(2) could not, in the circumstances, be ignored as inconsequential

and it can vitiate the sentence of death imposed by the Sessions Court. The Court, therefore,

allowed the appeal and set aside the sentence of death and remanded the case to the Sessions

Court with a direction to pass appropriate sentence after giving an opportunity to the accused

to be heard. Further, in Santa Singh, the Court also held as follows:

The hearing contemplated by Section 235(2) is not confined merely to hearing

oral submissions, but it is also intended to give an opportunity to the

prosecution and the accused to place before the court facts and material relating

to various factors bearing on the question of sentence and if they are contested

by either side, then to produce evidence for the purpose of establishing the

same.

28. The above issue again came up before this Court in Dagdu &ors. v. State of

Maharashtra; (1977) 3 SCC 68; wherein the three Judges Bench, referring to the judgment in

Santa Singh, held as follows:

The Court on convicting an accused must unquestionably hear him on the

question of sentence. But if, for any reason, it omits to do so and the accused

makes a grievance of it in the higher court, it would be open to that court to

remedy the breach by giving a hearing to the accused on the question of

sentence.

It further held as follows:

For a proper and effective implementation of the provision contained in Section

235(2), it is not always necessary to remand the matter to the court which has

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recorded the conviction .Remand is an exception, not a rule, and ought

therefore to be avoided as far as possible in the interests of expeditious, though

fair, disposal of cases

29. Again in Muniappan v. State of Tamil Nadu; AIR 1981 SC 1220; this Court held

as follows:

The obligation to hear the accused on the question of sentence which is

imposed by Section 235(2) of the Criminal Procedure Code is not discharged

by putting a formal question to the accused as to what he has to say on the

question of sentence.

The Judge must make a genuine effort to elicit from the accused all information

which will eventually bear on the question of sentence.

30. Later, in Allauddin Mian &ors. v. State of Bihar; (1989) 3 SCC 5, this Court also

considered the effect of non-compliance of Section 235(2) Cr.P.C. and held that the provision

is mandatory. The operative portion of the judgment reads as follows:

The requirement of hearing the accused is intended to satisfy the rule of natural

justice. It is a fundamental requirement of fair play that the accused who was

hitherto concentrating on the prosecution evidence on the question of guilt

should, on being found guilty, be asked if he has anything to say or any

evidence to tender on the question of sentence. This is all the more necessary

since the Courts are generally required to make the choice from a wide range

of discretion in the matter of sentencing. To assist the Court in determining the

correct sentence to be imposed the legislature introduced Sub-section (2) to

Section 235. The said provision therefore satisfies a dual purpose; it satisfies

the rule of natural justice by according to the accused an opportunity of being

heard on the question of sentence and at the same time helps the Court to

choose the sentence to be awarded. Since the provision is intended to give the

accused an opportunity to place before the Court all the relevant material

having a bearing on the question of sentence there can be no doubt that the

provision is salutary and must be strictly followed. It is clearly mandatory and

should not be treated as a mere formality.

31. Later, three Judges Bench in Malkiat Singh v. State of Punjab; (1991) 4 SCC 341

indicated the necessity of adjourning the case to a future date after convicting the accused and

held as follows:

On finding that the accused committed the charged offences, Section 235(2) of

the Code empowers the Judge that he shall pass sentence on him according to

law on hearing him. Hearing contemplated is not confined merely to oral

hearing but also intended to afford an opportunity to the prosecution as well as

the accused to place before the Court facts and material relating to various

factors on the question of sentence and if interested by either side, to have

evidence adduced to show mitigating circumstances to impose a lesser

sentence or aggravating grounds to impose death penalty. Therefore, sufficient

time must be given to the accused or the prosecution on the question of

sentence, to show grounds on which the prosecution may plead or the accused

may show that the maximum sentence of death may be the appropriate sentence

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or the minimum sentence of life imprisonment may be awarded, as the case

may be.

32. This Court in a recent judgment in Rajesh Kumar (supra) examined at length the

evaluation of sentencing policy and the concept of mitigating circumstances in India relating to

the death penalty. The meaning and content of the expression hearing the accused under Section

235(2) and the scope of Sections 354(3) and 465 Cr.P.C. were elaborately considered.

The Court held that the object of hearing under Section 235(2) Cr.P.C. being intrinsically and

inherently connected with the sentencing procedure, the provisions of Section 354(3) Cr.P.C.

which calls for recording of special reason for awarding death sentence, must be read

conjointly. The Court held that such special reasons can only be validly recorded if an effective

opportunity of hearing as contemplated under Section 235(2) Cr.P.C. is genuinely extended and

is allowed to be exercised by the accused who stands convicted and is awaiting the sentence.

33. In our view, the principles laid down in the above cited judgments squarely applies

on the question of awarding of sentence and we find from the records that the High Court has

only mechanically recorded what the accused has said and no attempt has been made to elicit

any information or particulars from the accused or the prosecution which are relevant for

awarding a proper sentence. The accused, of course, was informed by the Court of the nature

of the show-cause-notice. What was the nature of show cause notice? The nature of the showcause-notice was whether the life sentence awarded by the trial court be not enhanced to death

penalty. No genuine effort has been made by the Court to elicit any information either from the

accused or the prosecution as to whether any circumstance exists which might influence the

Court to avoid and not to award death sentence. Awarding death sentence is an exception, not

the rule, and only in rarest of rare cases, the Court could award death sentence. The state of

mind of a person awaiting death sentence and the state of mind of a person who has been

awarded life sentence may not be the same mentally and psychologically. The court has got a

duty and obligation to elicit relevant facts even if the accused has kept totally silent in such

situations. In the instant case, the High Court has not addressed the issue in the correct

perspective bearing in mind those relevant factors, while questioning the accused and, therefore,

committed a gross error of procedure in not properly assimilating and understanding the

purpose and object behind Section 235(2) Cr.P.C.

34. In such circumstances, we are inclined to set aside the death sentence awarded by the

High Court and remit the matter to the High Court to follow Section 235(2) Cr.P.C. in

accordance with the principles laid down. The conviction awarded by the High Court,

however, stands confirmed. The High Court is requested to pass fresh orders preferably

within a period of six months from the date of the receipt of the copy of this order. The appeal

is allowed to that extent

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