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.
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