- (1.)HEARD. This appeal arises from the judgment and order dated 14th November 2006. By the impugned judgment and order, the trial Court has held the appellant to be guilty of offence punishable under section 302 of Indian Penal Code and has sentenced him to suffer life imprisonment and to pay fine of Rs. 1,000/-, in default to suffer two years rigorous imprisonment.
(2.)THE brief facts relevant for the decision are that, the FIR No. 19 of 2006 came to be lodged on 26th January 2006 at Dharavi Police Station, Mumbai under section 302 against the appellant herein, on the ground that after he had attended flag hoisting ceremony in the bit which is situated at Dhobighat, at about 13. 15 hours one person approached him to inform that the said person who is the appellant herein had assaulted his uncle with a stone and consequently his uncle had suffered severe injury. After recording the FIR, the complainant visited the spot and found one person in injured condition, with blood oozing from his nose and mouth in semi conscious state and being unable to speak, lying on the ground at the residential premises of the appellant. When the complainant enquired as to how he was injured, the person is stated to have pointed out his finger towards the appellant and also pointed out the stone by which he was hit, pursuant to which the complainant informed about the incident to the control room and called a mobile van for taking the injured person to the hospital. The investigation revealed that the injured person had been to the appellant's house for lunch. The wife of the appellant however, did not like it as he was under the influence of liquor and his behaviour was objectionable. The appellant, therefore, asked his uncle to leave that house. The uncle refused to do so, there was followed by quarrel between the appellant and the uncle and in the process the appellant assaulted the uncle with the stone resulting in head injury to his uncle. Realising his mistake, the appellant himself immediately rushed to the police station and informed about the incident. Thereupon injured was taken to the hospital and was admitted in ICU where he was treated for about five days and, thereafter, succumbed to his injury on 31st January 2006. After completion of investigation, charge-sheet came to be filed against the appellant for the offence punishable under section 302 of Indian Penal Code. The prosecution examined five witnesses and on conclusion of the trial, the learned Ad-hoc Additional sessions Judge held the accused/appellant guilty of the offence punishable under section 302, Indian Penal Code and sentenced him to undergo the punishment as stated above.
(3.)THE impugned judgment is sought to be challenged on the various grounds. Firstly, it is sought to be contended on behalf of the appellant that the trial Court erred in ignoring the mandate of section 235 (2) of the Code of criminal Procedure inasmuch as that the trial Court proceeded to impose the sentence immediately after holding the appellant to be guilty of the offence punishable under section 302 of Indian Penal Code without offering any opportunity to the appellant of being heard on the point of sentence. In case of conviction under section 302 of Indian Penal Code the minimum punishment prescribed is the life imprisonment in terms of the provisions of law under section 235 of the Code of Criminal Procedure the necessity of hearing the accused on the question of sentence stands excluded in a case where the Court intends to proceed in accordance with the provisions of section 360, Criminal procedure Code but in no other case. In cases of conviction under section 302 of indian Penal Code the minimum punishment being life imprisonment, the hearing of the accused person on the point of sentence may perhaps appear to be mere formality, yet it is the requirement of law. The provision of law which specifically requires the Court to hear the person in criminal proceedings before imposing the sentence cannot be construed as merely directory, more particularly, in view of specific exclusion of compliance of such requirement only in a case of applicability of section 360, Criminal Procedure Code and in no other circumstances. It would therefore, be appropriate for the Sessions Court to hear the accused on the point of sentence before passing the actual order imposing the sentence. However, on this count alone, there could be no interference in the impugned order as the said formality can also be complied with by the Appellate Court.