Point of Law : Non-compliance of Section 235 (2) Cr.PC can be rectified at the appellate stage as well, by providing meaningful opportunity.

JUDGMENT :

Nelson Sailo, J.

Heard Mr. C. Lalfakzuala, learned Amicus Curiae appearing for the appellant and Mr. C. Zoramchhana, learned Public Prosecutor appearing for the State. This is an appeal preferred by the appellant from jail against the Judgment & Order dated 02.11.2012 passed by the Addl. District & Sessions Judge – I, Aizawl in Criminal Trial No. 2750/2011, convicting the appellant under Sections 376 and 302 of the Indian Penal Code (IPC) and imposing upon him a sentence of Rigorous Imprisonment (R.I) for 10 years with fine of Rs. 5,000/-with a default clause for his conviction under Section 376 (1) IPC and a sentence of Rigorous Imprisonment (R.I) for life with fine of Rs. 5,000/-with default clause for his conviction under Section 302 IPC.

2. The learned Amicus Curiae has drawn our attention to the grounds taken in the appeal which is to the effect that he has no complaint against the sentence imposed upon him and he completely accepts the judgment passed by the Trial Court. He has however stated that due to his ill-health, the sentence imposed upon him may be shortened/reduced. The learned Amicus Curiae submits that under the given circumstance, the only grievance which the appellant can make is that he was not afforded reasonable and adequate opportunity of hearing as required under Section 235 of the Cr.PC before he was handed down the sentence. Referring to the said provision, he submits that the Trial Court after hearing arguments and points of law (if any), is to give a judgment in the case and in case the accused person is convicted, the Trial Court, unless it proceeds in accordance with the provisions of Section 360 Cr.PC, should hear the accused person on the question of sentence and then pass sentence on him according to law. He submits that in the present case, from a bare perusal of the impugned judgment & order, it can be seen that the learned Trial Court did not afford adequate opportunity of hearing to the appellant and that he was sentenced on the same day of his conviction. The learned Amicus Curiae submits that it is settled law as laid down by the Apex Court that the sentencing court must approach the question seriously and must endeavor to see that all the relevant facts and circumstances bearing on the question of sentence are brought on record. Only after giving due weight to the mitigating as well as the aggravating circumstances placed before it, it must pronounce the sentence. In support of his submission, the learned Amicus Curiae relies upon the case of Allaudin Mian & Others Vs. State of Bihar, (1989) 3 SCC 5. He therefore submits that it is a fit case for remanding the matter back to the Trial Court for sentence hearing in terms of the relevant provisions of law and as per the law laid down by the Apex Court.

3. Mr. C. Zoramchhana, learned Public Prosecutor also by referring to the appeal preferred by the appellant from jail submits that the only grievance of the appellant is that due to his ill health, he has prayed for reduction of the sentence imposed upon him. He submits that the appellant has already been imposed with the minimum sentence under Section 302 IPC and therefore, there is no scope for reducing the sentence. The learned Public Prosecutor submits that the appellant may however approach the appropriate Government under Section 432 or 433 of the Cr.PC which deals with the power of the State Government to suspend, remit or commute sentence. He further submits that the appellant in fact had made confessional statement before the Judicial Magistrate and the Judicial Magistrate who had recorded the confessional statement was also examined during the Trial. Besides, the appellant has also admitted the charge made against him under Section 302 IPC. He also submits that the steps that can be taken by an Appellate Court in considering an appeal are provided under Section 386 of the Cr.PC. Unless the Appellate Court interferes with the findings of the Trial Court, there is no scope for