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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 864 OF 2006

Ajay Pandit @ Jagdish Dayabhai Patel & Anr. … Appellant (s)

Versus

State of Maharashtra … Respondent(s)

J U D G M E N T

K.S. Radhakrishnan, J.

1.Death sentence has been awarded by the High Court of

Bombay to Ajay Pandit @ Jagdish Dayabhai Patel 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 22

nd

December, 2005 confirming the order

of conviction and enhancing the sentence of life imprisonment to

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death and ordered to be hanged till death against which this

appeal has been preferred.

2.The accused Ajay Pandit @ Jagdish Dayabhai Patel was a

dentist by profession, known as Doctor Jagdish Patel at his

Dhabasi Mohalla, 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

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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 Nilesh Bhailal 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

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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. 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

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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

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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.

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One Kaushikbhai Sanabhaiu 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 the accused initiative,

Ramchandra visited the house of Kaushikbhai on 1.11.1994 and

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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

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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

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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

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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 – 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

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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

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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.

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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

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

the evidence of the key witnesses in this case. Jayashree – the

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

Jayashree – the 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

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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

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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,

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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

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consciousness but the accused gave an injection on his 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

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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 12

th

December 2005.

Learned counsel to inform the Jailor, Kalyan District

Prison authorities that the matter is kept on 12

th

December 2005.”

20.The accused was produced before the Court on 12

th

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 his own 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 22

nd

December, 2005 at

3.00 for Judgment. Accused to be produced on

that day.”

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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.

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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, 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

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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 41

st

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

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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,

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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

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

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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,

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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.”

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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 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:

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“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

Page 29 29

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 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

Page 30 30

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

show-cause-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

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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.

Page 32 32

…………………………….J.

(K.S. Radhakrishnan)

……………………………J.

(Dipak Misra)

New Delhi,

July 17, 2012

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