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2019 Supreme(Raj) 163
IN THE HIGH COURT OF RAJASTHAN, JAIPUR BENCH
KANWALJIT SINGH AHLUWALIA, BANWARI LAL SHARMA, JJ.
State of Raj. And Ors. - Petitioners
Versus
Bhajan and Ors. - Respondents
D.B. Criminal Death Reference No. 7 of 2018, D.B. Criminal Appeal (SB) No. 2151 of 2018 and D.B. Criminal Appeal (Db) No. 3 of 2019
Decided On : 01-04-2019
For the Petitioner: S.K. Gupta and Rahul Sharma
For the Respondents:Alka Bhatnagar, Addl. Government Advocate
The mandatory requirement of Section 235(2) Cr.P.C. to hear the accused on the question of sentence before imposing the death penalty.
Headnote:
CRIMINAL LAW - SENTENCING - SECTION 235(2) CR.P.C. - HEARING ON SENTENCE - MANDATORY - COURT'S DUTY TO ELICIT RELEVANT INFORMATION - DEATH SENTENCE - AWARDED WITHOUT PROPER HEARING - SET ASIDE.
Fact of the Case:
The accused-appellants were convicted of various offenses, including murder, under the Indian Penal Code and the Rajasthan Dacoity Affected Areas Act. The trial court sentenced the accused Bhajan @ Bahadur Singh to death, while the other accused were sentenced to various terms of imprisonment. The accused appealed their convictions and sentences to the High Court.
Finding of the Court:
The High Court confirmed the convictions of the accused but set aside the death sentence imposed on Bhajan @ Bahadur Singh. The High Court found that the trial court had not complied with the mandatory requirement of Section 235(2) Cr.P.C. to hear the accused on the question of sentence before imposing the death penalty.
Issues: Whether the trial court erred in imposing the death sentence on Bhajan @ Bahadur Singh without complying with the mandatory requirement of Section 235(2) Cr.P.C. to hear the accused on the question of sentence.
Ratio Decidendi: The Supreme Court held that the trial court erred in imposing the death sentence on Bhajan @ Bahadur Singh without complying with the mandatory requirement of Section 235(2) Cr.P.C. to hear the accused on the question of sentence. The Court held that the hearing contemplated by Section 235(2) Cr.P.C. 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. The Court further held that the trial court has a duty to elicit relevant facts even if the accused has kept totally silent in such situations.
Final Decision: The Supreme Court set aside the death sentence imposed on Bhajan @ Bahadur Singh and remitted the matter to the trial court to pass a fresh order of sentence in accordance with the principles laid down in the judgment.
KANWALJIT SINGH AHLUWALIA, J.
1. Bhanwar son of Harphool Meena, Bhajan @ Bahadur Singh son of Harphool Meena, Jeevan Singh son of Pyarelal, Mukesh Meena @ Ambani son of Ramjilal, Amarchand son of Harphool Meena, Harphool son of Basanta, Naresh son of Loharkya, Gangaram son of Baddeyram, Vijendra Singh son of Mulayam Singh and Prithvi Singh son of Halkeram were tried by the court of Special Judge, Dacoity Affected Area Cases, Karauli. The said court vide impugned judgment dated 13.11.2018 convicted Bhajan @ Bahadur Singh son of Harphool for the offences under Section 302 IPC and Section 3/25 of Arms Act. The accused Bhanwar son of Harphool Meena and Jeevan Singh son of Pyarelal were convicted for the offence under Section 3/25 of Arms Act, whereas accused Naresh son of Loharkya, Gangaram son of Baddeyram and Vijendra Singh son of Mulayam Singh were convicted for the offence under Section 216 IPC.
2. The accused Bhanwar son of Harphool Meena, Jeevan Singh son of Pyarelal, Mukesh Meena @ Ambani son of Ramjilal, Amarchand son of Harphool, Harphool son of Basanta and Prithvi were acquitted for the offences under Sections 302 read with Section 34 and Section 120B IPC. The accused Bhajan @ Bahadur Singh was also acquitted of offence under Section 120B IPC. All accused were also acquitted of offence under Section 11 of Rajasthan Dacoity Affected Areas Act, 1986.
3. Having convicted the appellants for the above said offences, the trial Judge vide a separate order of even date, sentenced Bhanwar son of Harphool Meena, Naresh son of Loharkya, Gangaram son of Baddeyram, and Vijendra Singh son of Mulayam Singh to the period already undergone. The accused appellant Bhajan @ Bahadur Singh son of Harphool was awarded death sentence.
4. Similarly, Bhanwar son of Harphool Meena, Bhajan @ Bahadur Singh son of Harphool and Jeevan Singh son of Pyarelal were sentenced to undergo three years RI and to pay a fine of Rs. 10,000/- each and in default thereof to further undergo six months SI. Accused Naresh son of Loharkya, Gangaram son of Baddeyram and Vijendra Singh son of Mulayam Singh for the offence under Section 216 IPC were sentenced to undergo three years RI and to pay a fine of Rs. 10,000/- each, in default thereof to undergo six months SI.
5. The court of Special Judge, Dacoity Affected Areas Cases, Karauli under Section 366 Cr.P.C. has sent the order of award of Death sentence to us for confirmation. The said reference has been assigned D.B. Cr. Death Reference No. 7/2018. Bhajan @ Bahadur Singh to assail his conviction and sentence has also filed D.B. Cr. Appeal No. 3/2019. Bhanwar, Jeevan Singh, Naresh, Gangaram and Vijendra Singh to assail their conviction and sentence have filed D.B. Cr. Appeal No. 2151/2018.
6. In the present case, judgment of conviction was delivered on 13.11.2018 and immediately after delivery of the judgment, accused were heard on quantum of sentence and the trial Judge then and there, awarded Death sentence upon the appellant Bhajan @ Bahadur Singh.
7. Mr. S.K. Gupta, learned counsel appearing for the appellants has submitted that the order of sentence cannot be sustained as it was incumbent for the trial Judge to adjourn the matter to enable the accused to lead evidence. Mr. Gupta has submitted that the trial Judge without taking any evidence into consideration regarding conduct of the appellant has relied upon conjunctures and surmises to comment upon the conduct of the appellant Bhajan @ Bahadur Singh.
8. We find merit in the contention of the learned counsel for the appellant.
9. Supreme Court in Ajay Pandit and Ors. vs. State of Maharashtra, AIR 2012 SC 3422, has held as under:-
"25. Section 235 Code of Criminal Procedure 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 Sect
