Sunday, July 22, 2012

AJAY PANDIT & Anr. Vs. STATE OF MAHARASTRA

Judgment of the above noted case bearing Criminal Appeal No. 864 of 2006 was delivered by the bench of Supreme Court of India comprising of Mr. K.S. Radhakrishnan J. and Mr. Dipak Misra J. on July 17, 2012.

The significant question in law involved in the case was whether non recording the statement of the accused after he was given an opportunity to express himself on the question of sentence would amount to non compliance of section 235(2) of Cr. P.C. and thus vitiate the court order?

In this case death sentence was awarded initially by the court of trial to the appellant for double murder, in separate incidents, one for the murder of Nilesh Bhailal 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.

While hearing on above said appeal, hon’ble Supreme Court has observed that, though the accused was informed by the court as to the nature of the show-cause notice, i.e. “Why the life sentence awarded by the trial court not be enhanced to death penalty”, no genuine effort was made by the high 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 award death sentence. It further observed that 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. Hence, the court has got a duty and obligation to elicit relevant facts even if the accused has kept totally silent in such situations.

The Supreme Court pointed out that hearing as envisaged Section 235(2) of the Cr.P.C. 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 either side [should be so interested], must be given opportunity to have evidence adduced to show mitigating circumstances to impose a lesser sentence. But the evidence must be only on question of sentence and not on conviction.

In this matter the judgment of Santa Singh v. State of Punjab; (1976) 4 SCC 190 was relied, wherein it was found that the requirements of Section 235(2) were not complied with, in as much 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. Hence accused was denied to have the opportunity to produce material and make submissions on the question of sentence, as contemplated by Section 235(2) [which is fundamental in criminal procedure], and if it be given the accused might have been in a position to persuade the Court to impose a lesser penalty.

Accordingly, said appeal was partly allowed and the death sentence awarded by the High Court was set aside & the matter was remanded back to the High Court to follow Section 235(2) Cr.P.C. in accordance with the principles laid down. However, conviction awarded by the high court was confirmed to attain finality.