ANGUSWAMY Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The two appellants having been convicted under section 302/34, Indian Penal Code and sentenced to death have approached this court by way of special leave. The facts leading to their conviction are that on 8/04/1984, at about 3.15 p. m. when Public Witness 2 was sitting near a printing press on 12th Street in Briyant Nagar the appellants came there hurling abuses at the Naicker community stating that then women deserves to be stripped naked and raped and their houses set on fire. When Public Witness 2 objected to the use of such filthy and abusive language the first appellant challenged him by catching him by the shoulder. Public Witness 2 brushed aside the hand of the first accused and beat him. The first appellant fell down but got up saying he would deal with Public Witness 2 later. So saying, he along with the second appellant went towards the south. At that time, a police constable in uniform by name Sharmuga Sadaksharam (PC No. 219 (hereinafter referred to as 'the deceased') came there on a cycle. Since a crowd had collected he made inquiries whereupon Public Witness 2 informed him about the incident. He also told him that both the appellants had run awaytowards the south. The deceased went in pursuit of the appellants on his cycle. Some time thereafter, Public Witness 1, another constable attached to the Tuticorin Police Station, came there on his cycle. Since a crowd had collected in front of Perumals shop he made inquiries and learnt that there was a quarrel between the appellants and some members of the Naicker community. He was also told that the deceased had gone in pursuit of the appellants. Thereupon Public Witness 1 also went in that direction followed by Public Witness 2. Public Witness 3, a resident of 13th Street had noticed the two appellants running away with the deceased chasing them. PW 3 saw appellant 1 run into his house while his companion appellant 2 went towards Bharathi Nagar. The deceased left his cycle, chappals and the police cap on one side and ran after the second appellant. The second appellant fell down and was caught by the deceased. While the deceased was dragging him to the east, the first appellant came with an 'aruval and attempted a blow on the neck of the deceased. The deceased warded. off that blow with his left hand and sustained an injury. The first appellant made a second attempt to inflict another blow on the neck of the deceased but this blow too was waived off by the deceased with his left hand. All this time the deceased was holding the second appellant by his right hand. As a result of the injuries caused to him and on the first appellant landing a third blow on the neck of the deceased, the deceased lost his grip over the second appellant. After the second appellant wriggled out from the clutches of the deceased, the former took out an aruval from his back and inflicted a cut on the nape of the deceased. Thereafter, both the appellants inflicted injuries on different parts of the body of the deceased and fled. The deceased fell down bleeding profusely. Both the courts below relying on the above version unfolded by PWs 1 to 4, the four eye-witnesses and Public Witness 5 who saw the appellants fleeing from the scene of occurrence with aruvals convicted them under S. 302/34, IPC. The trial court recorded the conviction on 19/02/1985. On the same day, the appellants were asked if they had anything to say on the question of sentence. It appears that the appellants reiterated that they were not guilty. Thereafter, the learned Sessions Judge proceeded to observe as under:

(2.) The appellants filed an appeal challenging their convictions. Since the trial court had awarded the death penalty, a reference also came to the High court. Both the appeal and reference were disposed of by a common judgment dated 17/09/1986. The learned judges of the High court confirmed the conviction of the appellants under section 302/34, Indian Penal Code and also came to the conclusion that the trial court had rightly visited the appellants with the extreme punishment of death. Taking note of the fact that the deceased being a police constable could not have ignored the behaviour of the appellants in abusing members of the Naicker community proceeded to add as under :

(3.) The requirement of Ss. (2 of S. 235 of the code of Criminal Procedure is mandatory and confers a right on the offender to be heard on the question of sentence. The scope of the said provision has been considered in Allauddin Mian, Sharif Mian v. State of Bihar wherein it is pointed out that it satisfies a dual purpose, namely, (0 the rule of natural justice inasmuch as it gives the offender an opportunity of being heard on the question of sentence and (ii) it seeks to assist the court in determining the appropriate sentence. In allauddin Mian case we have emphasised the need to strictly follow the mandate of S. 235 (2 of the Criminal Procedure Code. However, the opportunity. statutorily afforded by that Ss. to an offender does not absolve the court of its obligation to apply its judicial mind on the question of sentence but casts additional obligations (i) to give the offender anopportunity to make a representation on the question of sentence and (ii) to take into consideration such representation while determining the appropriate sentence to be awarded to the offender. Since we have in Allauddin Mian case already pointed out in detail the obligations cast on the sentencing Judge, we need not dilate and elaborate) on the various factors which must exercise the judicial mind on the choice of sentence.