Legal Provisions of Section 235 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Judgment of acquittal or conviction:
Spelling out the primary object of punishment the Supreme Court in Shivaji alias Dadya Shankar Alhat v. State of Maharashtra, observed that “protection of society and stamping out criminal proclivity by imposing appropriate sentence should be the purpose of sentencing system. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure such serious threats. Any liberal attitude by imposing meagre sentences or taking too sympathetic view would be counterproductive in the long run and against social interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.”
ADVERTISEMENTS:
In the instant case the accused raped and murdered 9 years girl who was his neighbour. There was evidence that he took away the deceased to a hill side pretending to give her fire-wood, raped and then killed her and absconded but finally arrested with weapons and blood stained clothes. His conviction for rape and murder was proper and the case fell in the category of rarest of rare cases.
The section provides that where the accused is convicted, except in cases of admonition or release on probation of good conduct under Section 360 , CrPC, the Judge must hear the accused in the question of quantum of sentence. In case of non-compliance of this provision as contained in sub-section (2) of this section, the case may be remanded to the trial Court for hearing the accused only on the point of sentence. In that case, the Sessions Judge is not to hold trial de novo but only restrict it to the question of sentence. However, the appellate Court has no jurisdiction to question the accused under Section 235, CrPC or for that matter under any provision of the Code.
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Explaining the true construction of Section 235 of the Code, the Supreme Court in Santa Singh v. State of Punjab held that the Court must in the first instance, deliver a judgment convicting or acquitting the accused. If the accused is acquitted no further question will arise.
ADVERTISEMENTS:
But if he is convicted, then the Court must hear him on the question of sentence to be imposed on him, and it is only after hearing him on this point, that the Court can proceed to pass the order of sentence against him. In the instant case, the Court remanded the matter to the Sessions Court on account of failure on the part of convicting Court to hear the accused on the question of sentence.
The Supreme Court in Jaikumar v. State of Madhya Pradesh reiterated that the provision contained in Section 235 (2) of Cr. P. C. must be strictly followed. After recording conviction of the accused the Magistrate/Judge should adjourn the proceeding for hearing on the question of sentences. Award of sentence is an amalgam of various factors considered by the Court such as nature of the offence, previous criminal record of the accused, his age, occupation or employment, education, family life etc.
While hearing the accused on the question of sentence the Presiding Judge should make genuine efforts to collect all information which affects or relates to the sentence of the accused. The accused must be expressly asked as to what he has to say about his sentence and does he want to adduce any evidence in support of mitigation of his sentence.
However, the Supreme Court in Trilok Singh v. State of Punjab observed that provisions of Section 235 (2) are not applicable when the minimum sentence prescribed for any particular offence is imposed by the Court.
ADVERTISEMENTS:
In State of Maharashtra v. Sukhdeo Singh, commonly known as General Vaidaya’s Murder case, the accused had filed a confessional statement under Section 313, CrPC and did not pray for imposition of lesser sentence hence no prejudice was caused to them in pronouncing conviction and sentence on the same day.
Where after recording the finding of conviction, the Sessions Judge adjourned the case to the next day for affording an opportunity to the accused as well as the prosecution to make their submissions on the question of sentence, it was held that there was substantial compliance of Section 235 (2) of the Code of Criminal Procedure.
In Bishnu v. State of Rajasthan, it has been held that an order of conviction and sentence passed by the Sessions Judge on the same day was bad in law as it lacked substantial compliance of the provision of Section 235 (2) regarding opportunity to the accused and the prosecution to be heard on point of sentence.
In Kamlakar Nandram Bhawsar v. State of Maharashtra, the accused was duly offered opportunity to be heard on the question of sentence as contemplated by Section 235 (2) of Cr. P. C. and thereafter his sentence was pronounced. But he was not heard after award of the sentence. Rejecting his appeal the Supreme Court held that in case of award of sentence remand is not always necessary because it is an exception rather than a general rule.
The case of Ramsingh v. Sania and others was related to confession under Section 164 and opportunity to be heard on question of sentence under Section 235 (2) of Cr. P. C. The accused persons were husband and wife who had committed multiple murders of the wife’s step-brother and his wife and three children while they were asleep to get the property of the deceased persons which was in crores.
The Sessions Court convicted the accused persons with sentence of death treating it to be a ‘rarest of rare’ case. They appealed for remission of sentence on the ground that they had confessed their offence and hence deserved leniency in sentence. The Supreme Court dismissed the appeal and upheld the death sentence of both the accused.
In Ongole Ravikanth v. State of Andhra Pradesh, it was proved by evidence that the accused husband had lit match struck when deceased poured kerosene on her body.
Under the circumstances, the finding of the Session Judge that accused had no intention to kill his wife and that the accused could not be said to have knowledge that burn injuries were likely to cause death of the deceased was not proper. He had found the accused guilty of causing hurt under Section 324, IPC. The Supreme Court expressed anguish about the manner in which the case was dealt with by Sessions Judge.