MODI, J - (1.) THIS is a jail appeal by accused Kajod who has been convicted by the learned Additional Sessions Judge, Bhilwara, vide his judgment dated September 2 1976, for the offence under section 304 Part (2) I. P. G. and sentenced to undergo rigorous imprisonment for three years.
(2.) THE charge against the accused was that on August 20, 1975. in the after-noon at village Bagji-ki Jhopdiyan, the accused-appellant intentionally committed murder of Rupa and thereby committed an offence punishable under section 302 I. P. C. THE learned Additional Sessions Judge, after trial, came to the conclusion that offence under section 302 I. P. C. was not made out against the accused. He accordingly acquitted the accused of the offence under section 302 I. P. G. , but convi-cted him of the offence under section 304 Part II I. P. C. The prosecution, in order to establish the guilt of the the accused-appellant examined Soma, Bbabhoota and Narayan as eyewitnesses. All of them have said that the accused appellant gave a "lathi" blow on the head of deceased Rupa. The learned Additional Sessions Judge has believed the testimony of those eye-witnesses and I see no good ground to take a contrary view. The testimony of these eye witne-sses is further corroborated by the medical evidence furnished by Dr. Chiranjilal Verma who conducted post-mortem examination on the dead body of Rupa. He found only one external injury, namely, - "bruise with Hematoma about 8" x 6" in size. Irregular hematoma with 111 defined margins, on the vault of the skull on the occipital and left parietal region. On opening the skull, the doctor found the following two internal injuries, - " (1) Communicating fracture of the occipital and the left temporal bone. Fracture line was about 10" in length. " (2) Cracked fracture of sphenoid bone involving base of the skull besides there was extensive subdural and extradural hematoma, and the brain surface was congested. " In view of the above evidence, the conviction of the accused appellant under section 304 Part II I. P. G. cannot be said to be illegal or improper. The learned counsel for the accused-appellant was not able to point out any substantial ground to disbelieve the testimony of the eye-witnesses. He however, contended that in the present case, the requirement of section 235 (2), Code of Criminal Procedure, 1973, was not complied with. In my opinion, the contention is well founded. It is clear from the judgment as well as from the order sheet that the accused appellant was convicted of the offence under section 304 Part II I. P. C. on September 2, 1976 and sentenced on the same day. Having convicted the accused appellant, the learned Additional Sessions Judge heard the learned counsel for the defence and the learned Public Prosecutor regarding the question of sentence. The learned counsel for the accused made a prayer that an opportunity be afforded to the accused to lead evidence on the question of age of the accused. The learned Additional Sessions Judge refused to afford any opportunity to the accused to lead the evidence to prove his age, on the ground that the learned counsel for the accused had made such a prayer earlier during the course of the Hal, but subsequently, he withdrew that prayer. That in my opinion, is no ground to deprive the accused to produce the evidence at the time of hearing the accused on the question of sentence. Section 235 Cr. P. C. 1973 reads as follows, - "235 judgement of acquit I of 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 sec. 360, hear the accused on the question of sentence, and then pass sentence on him according to law. " The above section came for inter pretation before the Supreme Court in Santa Singh vs. State of Punjab (1 ). Their Lordships observed, - "this provision is clear and explicit and does not admit of any doubt. It requires that in every trial before a court of session, there must first be a decision as to the guilt of 'he accused, The court must, in the first instance, deliver a judgment convicting or acquitting the accused, If the accused is acquitted, no further questions arises. But if he is convicted, then the court has to 'hear the accused on the question of sentence, and then pass sentence on him according to law', When a judgment is rendered convicting the accused, he is, at that stage to be given an opportunity to be heard in regard to the sentence and it is only after hearing him that the court can proceed to pass the sentence. " Their Loidships further observed, - "but, on the interpretation of sec. 235 (2) another question arises and that is, what is the meaning and content of the words 'hear the accused ' Does it mean merely that the accused has to be given an opportunity to make his submissions or he can also produce material hearing on sentence which has so far not come before the Court ? Can be lead further evidence relating to the question of sentence or is the hearing to be confined only to oral submissions ? That depends on the interpretation to be placed on the word 'hear'. Now the word 'hear' has no fixed rigid connotation it can bear either of the two rival meanings depending on the context in which it occurs. It is well settled rule of interpretation, hallowed by time and sanctified by authority, that the meaning of an ordinary word is to be found not so much in a strict etymological pro-perty of language, nor even in popular use, as in the subject or occasion on which it is used and the object which is intended to be attained. It was Mr. justice Holmes who pointed out in bis inimitable style that a word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used. Here, in this provision. , the word 'here' has been used to give an opportunity to the accused to place before the court various circumstances bearing on the sentence to be passed against him. Modern penology, as pointed our by this Court in EDiga Anamma vs. State of Andhra Pradesh (1974) 3 SCR 329 'regards crime and criminal a* equally material when the right sentence has to be picked out'. It turns the focus not only on the crime, but also on the criminal and seeks to personalise the punishment so that the reformist component is as much operative as the deterrent element. It is necessary for this purpose that facts of a social and personal nature, sometimes altogether irrelevant, if not injurious, at the stage of fixing the guilt, may have to be brought to the notice of the court when the actual sentence is determined. We have set out a large number of factors which go into the alchemy which ultimately produces an appropriate sentence and full and adequate material relating to these factors would have to be brought before the court in order to enable the court to pass an appropriate sentence. This material may be placed before the court by means of affidavits, but if either party disputes the correctness or veracity of the material sought to be produced by the o'her, an opportunity would have to be given to the party concerned to lead evidence for the purpose of bringing such material on record. The hearing on the question of sentence, would he rendered devoid of all meaning and content and it would become an idle formality, if it were confined merely to hearing oral submissions without any opportunity being given to the parties and particularly to the accused, to product material in regard to various factors bearing on the question of sentence, and if necessary, to lead evidence for the purpose of placing such material before the court. This was also the opinion expressed by the law Commission on its Forty-eighth Report where it was stated that the taking of evidence as to the eir crumsterances relevant to sentercing should be encouraged and both the prosecution and the accused should be allowed to co-operate in the process. The Law Commission strongly recommended that 'if a request is made in that behalf by either the prosecution or the accused, an opportunity for leading evidence on the question' of sentence 'should be given', we are, therefore, of the view that 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 ques tion of sentence and if they are contested by either side, then to Produce evidence for the purpose of establishing the same. Of course, care would have to be taken by the court to see that this hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings. The claim of due and proper hearing would have to be harmonised with the requirement of expeditious disposal of proceedings. " Now, in the present case, a definite prayer was made by the defence counsel to afford him an opportunity to produce evidence to prove the age of the accused. The learned counsel for the defence wanted to show that the age of the accused, at the time of commission of the offence, was less than 21 years. In case the accused, on the basis of evidence adduced by him, had succeeded in proving that his age at the time of the commission of the offence was less than 21 years of age he would have been entitled to get the benefit of the provisions of section 6 of the Probation of Offenders Act. The non-compliance with the provisions of section 235 (2) in the circumstances, ex facie, vitiates the order of sentence passed by the learned Additional Sessions Judge. It has been held in Santa Singh's Case (1) that where no opportunity has been given to the accused to produce material and make submissions regarding the sentence to be imposed on him, failure of justice must be regarded implicit and section 465 Cr. P. C. cannot in the circumstances, have any application. I would like to stress here that in the sessions trial or the warrant trial where also a similar provision as in section 235 (2) Cr. P. C. exists, the trial court should split up the trial into two parts (1) the stage which terminates in the passing of judgment of conviction and (2) the stage which on conviction results in imposition of sentence on the accused. Splitting up of trial in the aforesaid manner is absolutely mandatory in view of the provisions of section 235 (2) Cr. P. C. Non-compliance to it will undoubte-tedly vitiate the final order passed by the court The provisions of section 235 (2) Cr. P. C. have a very sound and definite purpose to achieve and they should not be considered as merely ritual formality. Section 235 (2) Cr. P. C enjoins on the court that after passing a judgment of conviction, the court should stay its hands and hear the accused on the question of sentence before passing the sentence is accordance with the law. In other words, the accused must be given an opportunity of making his representation regarding the question of sentence and for this purpose it is the duty of the court to afford opportunity to the accused to place such materials as the accused may think may have bearing on the question of sentence. I am sorry to note that several trial courts dealing with sessions trials or warrant trials do not comply with the provisions of section 235 (2) Cr. P. C. in the manner as laid down by the Supreme Court in Santa Singh's case (1 ). As already observed above, since in the present case, the trial court has not complied with the requirement of section 235 (2) Cr. P. C. , there is not other alternative but to remand the case back to the trial court for compliance with the provisions of section 235 (2) Cr. P. C.
(3.) I, accordingly, allow the appeal and while maintaining the conviction of the accused-appellant under section 301 Part II I. P. C, set aside the sentence passed by the learned Additional Sessions Judge and remand the case back to the trial court with the direction to pass appropriate order after giving an opportunity to the accused-appellant to produce evidence on the question of sentence in accordance with provisions of section 235 (2) Cr. P. C. 1973. The learned counsel for the appellant prays that the appellant be released on bail. The question of enlarging the accused-appellant on bail shall be taken up and decided on merits by the trial court. .;