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2019 DIGILAW 954 (RAJ)

State of Raj. v. Bhajan

2019-04-01

BANWARI LAL SHARMA, KANWALJIT SINGH AHLUWALIA

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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. 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. 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 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 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, necessary court may also give an opportunity to lead evidence. of course, full opportunity has to be given to produce adequate materials before the Court and, if found, 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 ( AIR 1976 SC 2386 ) (supra), this Court has extensively dealt with the nature and scope of Section 235(2) Code of Criminal Procedure stating that 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, therefore, allowed the appeal and set aside the sentence of death and remanded the case to the Sessions Court with a direction to pass appropriate sentence after giving an opportunity to the accused to be heard. Further, in Santa Singh, the Court also held as follows: "The hearing contemplated by Section 235(2) 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." 28. The above issue again came up before this Court in Dagdu and ors. v. State of Maharashtra; (1977) 3 SCC 68 : ( AIR 1977 SC 1579 ); wherein the three Judges Bench, referring to the judgment in Santa Singh ( AIR 1976 SC 2386 , held as follows: "The Court on convicting an accused must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open to that court to remedy the breach by giving a hearing to the accused on the question of sentence." It further held as follows: "...for a proper and effective implementation of the provision contained in Section 235(2), it is not always necessary to remand the matter to the court which has recorded the conviction....Remand is an exception, not a rule, and ought therefore to be avoided as far as possible in the interests of expeditious, though fair, disposal of cases." 29. Again in Muniappan v. State of Tamil Nadu; AIR 1981 SC 1220 ; this Court held as follows: "The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the Code of Criminal Procedure is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence." 30. Later, in Allauddin Mian and Ors. v. State of Bihar; (1989) 3 SCC 5 : ( AIR 1989 SC 1456 ), this Court also considered the effect of non-compliance of Section 235(2) Code of Criminal Procedure and held that the provision is mandatory. The operative portion of the judgment reads as follows: "The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the Courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the Court in determining the correct sentence to be imposed the legislature introduced Sub-section (2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality." 31. Later, three Judges Bench in Malkiat Singh v. State of Punjab; (1991) 4 SCC 341 indicated the necessity of adjourning the case to a future date after convicting the accused and held as follows: "On finding that the accused committed the charged offences, Section 235(2) of the Code 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, (AIR 2011 SC (Cri) 2268: 2011 AIR SCW 5997) (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 Code of Criminal Procedure were elaborately considered. The Court held that the object of hearing under Section 235(2) Code of Criminal Procedure being intrinsically and inherently connected with the sentencing procedure, the provisions of Section 354(3) Code of Criminal Procedure which calls for recording of special reason for awarding death sentence, must be 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) Code of Criminal Procedure 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. 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 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) Code of Criminal Procedure 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) Code of Criminal Procedure 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 with a period of six months from the date of the receipt of the copy of this order. The appeal is allowed to that extent." 10. The conviction awarded by the High Court, however, stands confirmed. The High Court is requested to pass fresh orders preferably with a period of six months from the date of the receipt of the copy of this order. The appeal is allowed to that extent." 10. Without examining the merits of the appeal filed by the accused, and without determining whether the accused appellants have been rightly convicted or not, in the light of the judgment rendered by the Supreme Court in Ajay Pandit (supra), on the touch stone of Section 235(2) Cr.P.C, we set aside the order of sentence dated 13.11.2018 whereby Death sentence was awarded upon Bhajan @ Bahadur Singh and remit the matter to the trial court to pass fresh order of sentence qua Bhajan @ Bahadur Singh by following the mandate of Section 235(2) Cr.P.C. in the light of the observations made by the Supreme Court in the case of Ajay Pandit (supra). Needless to say, the trial Judge shall afford opportunity to both the prosecution and the accused to lead evidence to prove aggravating and mitigating circumstances. 11. In view of above, D.B. Cr. Death Reference No. 7/2018 is declined. D.B. Cr. Appeal (SB) No. 2151/2018 and D.B. Cr. Appeal (DB) No. 3/2019 are kept pending.