DINESH SHIVSHANKER JANI v. STATE — 1978 DIGILAW 174 (GUJ)

D. P. DESAI, J. ( 1 ) THAT brings us to the question of sentence. The question has also to be examined in the context of the confirmation reference made to this Court by the learned trial Judge in respect of the death sentence awarded to original accused Nos. 1 and 3. So far as other accused persons are concerned the sentence cannot be questioned because it was the minimum prescribed by law for the offence of murder. But with regard to the death sentence one of the grievances made out by the learned advocate for the accused was that real and effective opportunity was not given to those two condemned accused to be heard on the question of sentence in the sense that they could not have time to bring material on record which could have perhaps led the learned trial Judge to give lesser sentence. In this connection it was pointed out to us that a prepared judgment was delivered on August 19 1978 and the learned advocate for the defence was heard on the question of sentence on that very day after pronouncing the order of conviction. The learned Judge after hearing thereof submissions made by the learned advocate on the question of sentence passed the impugned order of sentence against accused Nos. 1 and 3 on the same day. It was urged that in a vital case like this involving capital punishment this compliance with the provisions of sec. 235 (2) on paper has not given a real opportunity to the accused to be heard on the question of sentence inasmuch as they were annealed to bring material on record bearing upon the question of sentence. It also appears from the reasons given by the learned trial Judge with regard to the question of sentence that he confined himself to the features emerging from the record as to the manner in which the offence in question was committed which would no doubt be a relevant factor. But then it is obvious that the circumstances de hors the incident may also have to be taken into consideration in assessing the proper sentence to be given in a serious crime like the present involving capital punishment. But then it is obvious that the circumstances de hors the incident may also have to be taken into consideration in assessing the proper sentence to be given in a serious crime like the present involving capital punishment. Therefore we have taken upon ourselves to examine what should be the correct attitude of the Courts when trying an offence involving capital punishment after reaching the conclusion that the accused before it is guilty of that offence. Secs. 235 and 354 are relevant in this connection more particularly sec. 235 (2) read with sec. 354 (3 ). They read as under :-"235 Judgment of acquittal or conviction; (1 ). . . . . . . . . . . . . . . (2) If the accused is convicted the Judge shall unless he proceeds in accordance with the provisions of sec. 360 hear the accused on the question of sentence and then pass sentence on him according to law. 354 Language and contents of Judgment; When the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years the judgment shall state the reasons for the sentence awarded and in the case of sentence of death the special reasons for such sentence. (4 ). . . (5 ). . . (6 ). . . The first thing we would like to point out from sec. 354 is that the Legislature itself has made distinction between the sentence in case of offences which are punishable with death or in the alternatives with imprisonment for life or imprisonment for a term of years and in case of Sentence of death. In the former case reasons are required to be given but where the sentence to be awarded is death sentence special reasons are required to be given. It seems fairly clear that special reasons contemplated in case of sentence of death must be special to the case as well as special to the condemned person. In the former case reasons are required to be given but where the sentence to be awarded is death sentence special reasons are required to be given. It seems fairly clear that special reasons contemplated in case of sentence of death must be special to the case as well as special to the condemned person. Though this question does not seem to have been covered directly by aay authority so far pointed out to us we would like to gate some observations of the Supreme Court in Srirangan v. State of T. N. A. I. R. 1975 Supreme Court 274 In paragraph 3 the Supreme Court observed as under:-" In the agonisingly sensitive area of sentencing especially in the choice between life term and death penalty a wide spectrum of circumstances attracts Judicial attention. since they are all inarticulately implied in the penological part of sec. 30) I. P. C. read with sec. 354 (3 ). Cr. P. C. The plurality of factors bearing on the Crime and the doer of the Crime must carefully enter the judicial verdict. The winds of penological reform notwithstanding the prescription in sec. 302 binds and death penalty is still permissible in the punitive pharmacopoeia of India. Even so the current of precedents and relevant catena of clement facts personal social and other persuade us to hold that even as in Nami Ram v. State of Assam (A. I. R. 1975 S. C. 762) the lesser penalty of life imprisonment will be a more appropriate punishment here. (Emphasis supplied)". WHILE examining the question of sentence where the choice between death and life is the only choice the Supreme Court did make specific reference to the provisions of sec. 354 (3) of the Code of Criminal Procedure which require special reasons to be given in case of death sentence; and stated that a wide spectrum of circumstances attracts judicial attention since they are all inarticulately implied in the penological part of sec. 302 I. P. C. read with sec. 354 (3) Cr. P. Code. The drift in the sentencing procedure since it was inherited from British regime and thereafter its amendment in 1955 and the latest amendment in 1973 as regards capital punishment is quite discernible. What was formerly a Rule has now become exception for which special reasons are required to be recorded. 354 (3) Cr. P. Code. The drift in the sentencing procedure since it was inherited from British regime and thereafter its amendment in 1955 and the latest amendment in 1973 as regards capital punishment is quite discernible. What was formerly a Rule has now become exception for which special reasons are required to be recorded. The proposition that several factors de hors the events leading to the crime in question are relevant on the question of sentence is quite obvious and need not be supported by further reasoning. But some guideline is provided in the choice of sentence by the Supreme Court in another decision of the Supreme Court reported as Shiv Mohan Singh v. State of Delhi A. I. R. 1977 Supreme Court 949. The observations contained in paragraph 23 of the judgment must bear repetition. "hearing is obligatory at the sentencing stage under the New Criminal Procedure Code. The humanist principle of individualising punishment to suit the person and his circumstances is best served by hearing the culprit even on the nature and quantum of the penalty to be imposed. The heinousness of the Crime is a relevant factor in the choice of the Sentence. The circumstances of the crime especially social pressures which induce the crime which we may epitomise as a just sentence in an unjust society are another consideration. The criminal not the crime must figure prominently in shaping the sentence where a reform of the individual rehabilitation into society and other measures to partner occurrence are weighty factors. The Penal Code does not give the Judge a free hand where murder has been made out. The choice is painfully not quite scientifically though limited to but two alternatives. (Emphasis supplied)". One of the material considerations in the choice of sentence where it is limited to two sentences only between life and death is as stated by the Supreme Court to see that the criminal must figure prominently in shaping the sentence although heinousness of the crime is not ruled out thereby and the circumstances of the crime are other relevant consideration. The Supreme Court in yet another decisions reported as Dagdu v. State of Maharashtra A. I. R. 1977 Supreme Court 1579 after stressing obligation of the Court to hear the accused on the question of sentence made the following observations in paragraph 77:-"the right to be heard on the question of sentence has a beneficial purpose for a variety of facts and considerations bearing on the sentence can in the exercise of that right be placed before the Court which the accused prior to the enactment of the Code of 1973 had no Opportunity to do. The social compulsions the pressure of poverty the retributive interest to seek an extra legal remedy to a sense of being wronged the lack of means to be educated in the difficult art of an honest living the parentage the heredity all these and similar other cons durations can hopefully and legitimately tilt the scale on the propriety of sentence". In paragraph 78 the Supreme Court also observed that the opportunity has to be real and effective which means that the accused must be permitted to adduce before the Court all the data which he desires to adduce on the question of sentence. It was no doubt observed that the accused may exercise that right either by instructing his counsel to make oral submissions to the Court or he may on affidavit or otherwise place in writing before the Court whatever he desires to place before it on the question of sentence. Then stated the Court:-"the Court may in appropriate cases have to adjourn the matter in order to give to the accused sufficient time to produce the necessary data and to make his contentions on the question of sentence. That perhaps must inevitably happen where the conviction is recorded for the first time by a higher Court. ( 2 ) IN our opinion the case may have also to be adjourned for the aforesaid purpose where the Court is inclined to take into consideration the award of death sentence. That perhaps must inevitably happen where the conviction is recorded for the first time by a higher Court. ( 2 ) IN our opinion the case may have also to be adjourned for the aforesaid purpose where the Court is inclined to take into consideration the award of death sentence. Having regard to the legislative intent of limiting death sentence only to cases where special reasons exist this is quite necessary as the same would enable the accused his relatives and his advocate to give their thought to the production of the relevant material bearing upon the lesser sentence of life imprisonment and to investigate into the same if need be and then to bring the material before the Court. In fact it would also furnish an opportunity to the prosecution to investigate into the antecedents character and other factors relating to the accused in order to ascertain whether lesser punishment of life term is called for. Cases abound where the convicted accused is an ignorant rustic or an Adivasi who is not sufficiently alive to the importance of the aforesaid materials bearing upon the question of lesser sentence. In that case we would say that it would become the duty of the prosecution to investigate into the same and bring necessary material on record. In the. nature of things the prosecution cannot remain a mute spectator to the signing of a death warrant for ending the life of a convict. Therefore adjournment of the matter in a case where the Court is inclined to consider the question of award of death sentence not only fits in with the legislative mandate requiring special reasons but is also consistent with the drift in the sentencing procedure as disclosed from the recent amendment. In fact such a course would well accord with fairness and justice. This we believe is the minimum that a Court of law must do before deciding that a man shall be condemned to death. If however having regard to the circumstances of a particular case as disclosed from the record the Court thinks that the capital punishment is not called for and that lesser punishment of life term is appropriate sentence it need not adjoun the matter because no purpose would be served thereby the choice being limited to two sentences only. If however having regard to the circumstances of a particular case as disclosed from the record the Court thinks that the capital punishment is not called for and that lesser punishment of life term is appropriate sentence it need not adjoun the matter because no purpose would be served thereby the choice being limited to two sentences only. ( 3 ) WE must make it clear that we have laid down adoption of this course only in a case where the choice is limited to death or life. . . . . . . . . . . . . . . . . . . [ Rest of the judgment is not material for the reports. ] death sentence commuted to imprisonment for life. .