- (1.) RAJU @ Jitu Santoni was convicted by learned Vth Additional Sessions Judge, Jalgaon on 2nd April, 1996 in Sessions Case No. 250 of 1995 for committing murder of Sanjaykumar Singh and also for committing robbery punishable under section 392 of I. P. C. with the use of deadly weapon punishable under section 397 of I. P. C. Since the learned Sessions Judge awarded death sentence, the matter has come up before us by way of confirmation proceedings and by way of appeal filed by the convict.
(2.) TODAY, when we started the hearing of the matter, Shri R. G. Karmarkar, learned Counsel appearing on behalf of the appellant, giving a brief summary of the facts of the case, brought to our notice that the accused was not heard as is required under section 235 of the Code of Criminal Procedure, 1973, on the point of sentence. We find Ground No. (XXXVI) in the appeal memo making grievance about the same. The ground is as under. "the learned Judge did not give proper consideration as to the quantum of sentence. He held the accused guilty and heard him on the point of sentence and immediately passed the sentence of hanging. The Court should not have passed sentence on the same day without waiting for consideration. This is contrary to section 235 (2) of Criminal Procedure Code. " Paragraph 92 of the judgment reads as under --"the accused was heard on the point of sentence so (Sic - through) his Advocate. Both of them submitted the accused has not committed any crime. " then the paragraph No. 93 proceeds to record as under -"the learned A. P. P. was also heard on the point of sentence and he submitted that necessary orders in the matter be passed. " Further portion of the judgment deals with the judgment of this Court reported in (Prem alais Santosh s/o Jivandas Satija v. The State of Maharashtra) 1993 (2) Bom. C. R. 252 and paragraph No. 95 of the judgment records- "the learned A. P. P. said that in view of these observations, this is a fit case in which extreme penalty should be awarded. The learned Advocate for the accused refused to make any comment on these observations, and even the case at hand was not attempted to be distinguished from the said case. " This is all that is in the judgment in respect of hearing of the accused on the quantum of sentence.
(3.) SUB-SECTION (2) of section 235 of the Code of Criminal Procedure, 1973 lays down that- 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 law is settled that the provisions of section 235 (2) are mandatory in nature. Likewise, a sentencing decision taken without following the requirements of sub-section (2) of section 235 in letter and spirit will also have to be struck down, as was pointed out by the Supreme Court in (Allauddin Mian and others, Sharif Mian and another v. State of Bihar) A. I. R. 1989 S. C. 1456 ---As a general rule the trial Court should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender. " The record in the instant case shows that the case was not adjourned and it proceeded after the accused and his Counsel were asked whether they have to say anything on the point of sentence. There is no record in writing about the answer given by accused to such a query which the Judge appears to have made. The gist reproduced in the judgment does not speak anything about submission of the accused about the quantum of sentence but it merely repeats the denial of having committed offence. The case proceeded on the same day and the death penalty was imposed. The adjournment of the case at least for a day as was advised by the Supreme Court, is not a mere formality but it is an opportunity for the accused to ponder over the possible sentence and to prepare himself for bringing such circumstance to the notice of the Court, as, in his opinion, would be sufficient to mitigate the crime and persuade the Court to impose the lenient or a lesser punishment as would be permissible. Similarly, it also gives opportunity to the prosecution to point out circumstance which calls for a harsh treatment. But we do not find that either of them has submitted reasons which would enable the Court to arrive at appropriate decision.;