Judgment

KRISHNA IYER, J.- In Cri. Appeal No. 337/1976 by special leave Shri A. K. Sen has confined his challenge-indeed leave itself was limited - to the question of sentence. The case of murder was proved and the conviction by the Sessions Court was confirmed by the High Court. The Sessions Judge awarded life imprisonment to two accused and death sentence to the appellant. The High Court confirmed the death sentence and hence this appeal.

2. Section 235, Cr. P. C. (1974) makes a departure from the previous Code on account of humanist considerations to personalise the sentence to be awarded. The object of the provision is to give a fresh opportunity to the convicted person to bring to the notice of the court such circumstances as may help the court in awarding an appropriate sentence having regard to the personal, social and other circumstances of the case. Of course, when it is a case of conviction under S. 302, I.P.C. if the minimum sentence is imposed the question of providing an opportunity under S. 235 would not arise.

3. In this case it is admitted that no opportunity was given under Section 235 (2), Cr. P. C. to the appellant to show cause as to the appellant to show cause as to why the lesser sentence of life imprisonment should not be inflicted. We may make it absolutely clear that such a failure will not affect the conviction under any circumstances. The only point is relevant to sentence. Even there in a murder case where the charge of murder is made out, the limited question is as between the two sentences prescribed under the Penal Code.

4. In Santa Singh v. State of Punjab. AIR 1976 SC 2386 this Court considering S. 235 (2), Cr. P. C. held that the hearing contemplated by that sub-section is not confined merely to hearing oral submissions but extends to giving an opportunity to the prosecution and the accused to place before the court facts and materials relating to the 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. Of course, in that particular case this Court sent the case back to the Sessions Court for complying with Section 235 (2), Cr. P. C. It may well be that in many cases sending the case back to the Sessions Court may lead to more expense, delay and prejudice to the cause of justice. In such cases it may be more appropriate for the appellate court to give an opportunity to the parties in terms of Sec. 235 (2) to produce the materials they wish to adduce instead of going through the exercise of sending the case back to the trial Court. This may in many cases, save time and help produce prompt justice.

5. In the present case we propose to adopt that course and counsel for the parties agree that they will rely upon the materials available on record and they have nothing more to offer to the court bearing on the question of sentence. It will be an idle formality in a situation like that to remit the case to reconsider the question of sentence to the Sessions Court.

6. Coming to the facts of the present case, having heard both sides we are impressed by Shri Sens submission that the death sentence has been inflicted nearly two years ago and the agony of such a sentence has been an excruciating experience suffered by the convict for a long period. This, by itself, may not be a circumstance to bring down the death sentence, if otherwise the act is too brutal depraved or meriting the highest penalty. It has been now established in many decisions of this Court that death sentence must be awarded where there are aggravating factors (vide E. Annamma v. State of Andhra Pradesh, AIR 1974 SC 799). The appellant had two other assailants with him who have been awarded life imprisonment. Moreover, it is evident from the records that there was an exchange of abuses between the parties, viz., Shiv Singh and the accused party. It is also apparent that there was no motive for the appellant to kill the innocent child w