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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 22nd 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 12th  December 2005.   Learned counsel to inform the Jailor, Kalyan District  Prison  authorities  that  the  matter  is  kept  on  12th  December 2005.”

20. The  accused  was  produced  before  the  Court  on  12th  

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  22nd 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 41st 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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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

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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.   

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…………………………….J. (K.S. Radhakrishnan)

……………………………J. (Dipak Misra)

New Delhi, July 17, 2012

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