Supreme Court: According to sub-section (2) of Section 235 of CrPC the
opportunity of hearing has to be given to the accused on the question of
sentence. It means full opportunity has to be given to the accused to
produce adequate materials before the court and if found necessary the
court may also give an opportunity to lead evidence. Here evidence means
the evidence which has some relevance on the
question of sentence and not on conviction. Where capital punishment
has to be awarded the court has to make conscious effort to elicit
relevant information, which has some bearing in awarding a proper and
adequate sentence. Awarding death sentence is always an exception, only
in rarest of rare cases. The Court reiterated that the object of hearing
under Section 235(2) CrPC being intrinsically and inherently
connected with the sentencing procedure, the provisions of Section
354(3) CrPC which calls for recording of special reason for awarding
death sentence, must be read conjointly. The Court held that special
reasons can only be validly recorded if an effective opportunity of
hearing as contemplated under Section 235(2) CrPC is genuinely extended
and is allowed to be exercised by the accused who stands convicted and
is awaiting the sentence. Herein the relevant facts of the case is that
the accused Ajay Pandit, a dentist by profession, lured many person on
the pretext of sending them to America for better prospects in life.
Several persons fell in his net. Some of them were found murdered and
few others narrowly escaped from the clutches of death. On these facts
the Court observed that the High Court has 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 accused was informed by
the court of the nature of the show-cause-notice i.e. whether the life
sentence awarded by the trial court be not enhanced to death penalty.
The accused said nothing more than this that he is not involved in the
case. He is not guilty. But 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 to award death sentence. 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. Therefore, the court has got a duty and obligation to
elicit relevant facts even if the accused has kept totally silent in
such situations. (Ajay Pandit v. State of Maharashtra, Criminal Appeal
No. 864 of 2006, decided on 17-7-2012)
