Section 235(2) affords accused chance to offer material that may mitigate the sentence

Not recording the statement of the accused after he is given an opportunity to express himself on the question of sentence would vitiate the court order, the Supreme Court has held and set aside the death sentence awarded by the Bombay High Court to dentist Ajay Pandit alias Jagdish Dayabhai Patel for double murder.

A Bench of Justices K.S. Radhakrishnan and Dipak Misra remitted the matter to the High Court, asking it to follow Section 235(2), Cr.P.C., in accordance with the laid-down principles and pass fresh orders on the question of sentence in six months. The Bench, however said, “The conviction awarded by the High Court, stands confirmed.”

Writing the judgment, Justice Radhakrishnan said: “There can be no doubt that it is one of the most fundamental parts of the Criminal Procedure Code, and non-compliance with Section 235(2) will ex facie vitiate the order. 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 Bench pointed out that Section 235(2) of the Cr.P.C. empowered the Judge to pass sentence on the accused according to law on hearing him. It said: “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 either side [should be so interested], to have evidence adduced to show mitigating circumstances to impose a lesser sentence.”

‘No genuine effort’

The Bench said that in this case, though the accused was informed by the court as to the nature of the show-cause notice — whether life sentence awarded by the trial court not be 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 award death sentence.”

The Bench said: “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 Bench said 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) Cr.P.C. The Bench thus quashed the death sentence.

The appellant, Dr. Pandit, was awarded death sentence by the Bombay High Court for double murder, in separate incidents, one for the murder of Nilesh Bhailal Patel and another for the murder of Jayashree. Contending that the procedure contemplated under Section 235(2) Cr.P.C. was not followed, he sought quashing of the death sentence awarded to him.

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