PETITIONER:
TARLOK SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT28/04/1977
BENCH:
KRISHNAIYER, V.R.
KAILASAM, P.S.
CITATION:
1977 AIR 1747 1977 SCR (3) 711
1977 SCC (3) 218
ACT
Criminal Procedure Code (Act 2 of 1974), 1973--Section
235, object and scope of.
HEADNOTE
The-appellant was convicted along with two other accused
under s. 302 I.P.C. and sentenced to death while the other
two were sentenced to life imprisonment. In appeal to this
Court against the orders of the High Court confirming the
death sentence imposed, the special leave was granted limit-
ed to sentence.
Allowing the Criminal Appeal No. 337 of 1976 in part and
modifying the death sentence to one of life imprisonment,
the Court,
HELD: (1) The object of s. 235 Cr.P.C 1974 is to give a
fresh opportunity to the convicted person to bring to the
notice of the court such circumstances as may help the court
in awarding an appropriate sentence have regard to the per-
sonal, social and other circumstances of the case.[712 D]
(2) Failure to give an opportunity under s" 235(2)
Cr.P.C. will not affect the conviction under any circum-
stance. In a murder case where the charge is made out the
limited question is as between the two sentences prescribed
under the Penal Code. If the minimum sentence is imposed.
question of providing an opportunity under s. 235 would not
arise. [712 F]
(3) The hearing contemplated by s. 235(2) is not con-
fined merely to hearing oral submissions but extend giving
an opportunity to the prosecution and the accused to place
before the court facts and materials of sentence and;if they
are contested by either side then to produce evidence for
the purpose of establishing the same. [712 G]
Santa Singh v. State of Punjab A.I.R. 1976 S C 2386, reiter-
ated.
(4) To save time and expense and help produce prompt
justice, it may be more appropriate for the appellate court
to give an opportunity to the parties in terms of s. 235(2)
to produce the materials they wish to adduce instead of
going through the exercise of sending the case back to the
trial court. 1713 A]
In the instant case, the Court modified the death sen-
tence to one of life imprisonment in view of the facts: (i)
The death sentence has been inflicted nearly two years ago,
and the agony of such a sentence has been an exCruciating
experience suffered by the convict for a long period; (ii)
The appellant had two other assailants with him who
have been awarded life imprisonment; (iii) There was no
motive for the appellant to kill the innocent child; and
(iv) The other circumstances present indicate that the ends
of justice would be met by awarding life imprisonment. [713
G-E]
E. Annamma v. State of Andhra Pradesh A.I.R. 1974 S.C. 799,
referred to
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Crl. A. 337 & 367/1976
(Appeals by Special Leave from the Judgment and Order
dated 24.3.1976 of the Punjab and Haryana High Court in Srl.
A No. 757
712
75 and Murder Reference No. 27/75 and in Crl. Appeal No. 759
of 1975)
A. K. Sen and Harjinder Singh, for the appellant.
N.S. Das Behl, for the respondent.
The Judgment of the court was delivered by
KRISHNA IYER, J. In Crl. Appeal No. 337/1976 by special
leave Shri A.K. Sen has confined his challenge---indeed,
leave itself was limited--to the question of sentence. The
case of murder was proved and the conviction by the Sessions
Court was confirmed by the High Court. The Sessions Judge
awarded life imprisonment to two accused and death sentence
to the appellant. The High Court confirmed the death sen-
tence and hence this appeal.
Section 235 Cr. P.C. 1974 makes a departure from the
previous Code on account of humanist considerations to
personalise the sentence to be awarded. The object of the
provision is to give a fresh such circumstances as may help
the court in awarding an appropriate sentence having regard
to the personal, social and other circumstances of the case.
Of course, when it is a case of conviction under s. 302,
I.P.C. if the minimum sentence is imposed the question of
providing an opportunity under Sec. 235 would not arise.,
In this case it is admitted that no opportunity was
given under s. 235(2) Cr. P.C. to the appellant to. show
cause as to why the lesser sentence of life imprisonment
should not be inflicted. We may make it absolutely clear
that such a failure will not affect the conviction under any
circumstances. The only point is relevant to sentence.
Even there in a murder ease where the charge of murder is
made out, the limited question is as between the two sen-
tences prescribed under the Penal Code.
In Santa Singh v. State of Punjab(1) this Court considering
s. 235 (2) Cr. P.C. held that the hearing contemplated by
that sub-section is not confined merely to hearing oral
submissions but extends to giving an opportunity to the
prosecution and the accused to place before the court facts
and materials relating to the various factors bearing on the
question of sentence and, if they are contested by either
side, then to produce evidence for the purpose of establish-
ing the same. Of course, in that particular case this Court
sent the case back to the sessions court for complying with
s. 235(2) Cr. P.C. It may well be that in many cases send-
ing the case back to the Sessions Court may lead to more
expense, delay and prejudice to the cause of justice. In
such cases it may be more appropriate for the appellate
court to give an opportunity to the parties in terms off s.
235(2) to produce the
(1) A.I.R. 1976 S.C. 2386
713
materials they wish to adduce instead of going through the
exercise of sending the case back to the trial court. This
may in many cases save time and help produce prompt justice.
In the present case we propose to adopt that course and
counsel for the parties agree that they will rely upon the
materials available of record and they have nothing more to
offer to the court bearing on the question of sentence. It
will be an idle formality in a situation like that to remit
the case to reconsider the question of sentence to the
Sessions Court.
Coming, to the facts of the present case, having heard
both sides we are impressed by Shri Sen’s submission that
the death sentence has been inflicted nearly two years ago
and the agony of such a sentence has been an excruciating
experience suffered by the convict for a long period. This,
by itself, may not be a circumstance to bring down the death
sentence, if otherwise the act is took brutal, depraved or
meriting the highest penalty. It has been now established
in many decisions of this Court that death sentence must be
awarded where there are aggravating factors (vide E. Annami-
na v. State of Andhra Pradesh(1). The appellant had two
other assailants with him who have been awarded life impris-
onment. Moreover, it is evident from the records that
there was an exchange of abuse between the parties, viz.,
Shiv Singh and the accused party. It is also apparent that
there was no motive for the appellant to kill the innocent
child who died, a circumstance which has influenced the
courts below in awarding the capital sentence. The other
circumstances present also indicate that there is no partic-
ular reason why the appellant should have been given the
severer sentence and we are satisfied that the ends of
justice would be met be awarding life imprisonment. We
accordingly direct that the sentence of life imprisonment
should be substituted in place of death sentence awarded by
the trial court and confirmed by the High Court. We allow
the appeal to this extent.
Crl. Appeal No. 367 of 1976 is dismissed as not pressed.
Cr. A. 337 allowed in part and sentence
modified. Cr. A. 367/76 dismissed.
S.R.
(1) A.IR. 1974 S,C. 799
714