DINESH SHIVSHANKER JANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) That brings us to the question of sentence. The question has also to be examined in the context of the confirmation reference made to this Court by the learned trial Judge in respect of the death sentence awarded to original accused Nos. 1 and 3. So far as other accused persons are concerned the sentence cannot be questioned because it was the minimum prescribed by law for the offence of murder. But with regard to the death sentence one of the grievances made out by the learned advocate for the accused was that real and effective opportunity was not given to those two condemned accused to be heard on the question of sentence in the sense that they could not have time to bring material on record which could have perhaps led the learned trial Judge to give lesser sentence. In this connection it was pointed out to us that a prepared judgment was delivered on August 19 1978 and the learned advocate for the defence was heard on the question of sentence on that very day after pronouncing the order of conviction. The learned Judge after hearing thereof submissions made by the learned advocate on the question of sentence passed the impugned order of sentence against accused Nos. 1 and 3 on the same day. It was urged that in a vital case like this involving capital punishment this compliance with the provisions of sec. 235(2) on paper has not given a real opportunity to the accused to be heard on the question of sentence inasmuch as they were annealed to bring material on record bearing upon the question of sentence. It also appears from the reasons given by the learned trial Judge with regard to the question of sentence that he confined himself to the features emerging from the record as to the manner in which the offence in question was committed which would no doubt be a relevant factor. But then it is obvious that the circumstances de hors the incident may also have to be taken into consideration in assessing the proper sentence to be given in a serious crime like the present involving capital punishment. Therefore we have taken upon ourselves to examine what should be the correct attitude of the Courts when trying an offence involving capital punishment after reaching the conclusion that the accused before it is guilty of that offence. Secs. 235 and 354 are relevant in this connection more particularly sec. 235(2) read with sec. 354 (3). They read as under :-

(2.) In our opinion the case may have also to be adjourned for the aforesaid purpose where the Court is inclined to take into consideration the award of death sentence. Having regard to the legislative intent of limiting death sentence only to cases where special reasons exist this is quite necessary as the same would enable the accused his relatives and his advocate to give their thought to the production of the relevant material bearing upon the lesser sentence of life imprisonment and to investigate into the same if need be and then to bring the material before the Court. In fact it would also furnish an opportunity to the prosecution to investigate into the antecedents character and other factors relating to the accused in order to ascertain whether lesser punishment of life term is called for. Cases abound where the convicted accused is an ignorant rustic or an Adivasi who is not sufficiently alive to the importance of the aforesaid materials bearing upon the question of lesser sentence. In that case we would say that it would become the duty of the prosecution to investigate into the same and bring necessary material on record. In the. nature of things the prosecution cannot remain a mute spectator to the signing of a death warrant for ending the life of a convict. Therefore adjournment of the matter in a case where the Court is inclined to consider the question of award of death sentence not only fits in with the legislative mandate requiring special reasons but is also consistent with the drift in the sentencing procedure as disclosed from the recent amendment. In fact such a course would well accord with fairness and justice. This we believe is the minimum that a Court of law must do before deciding that a man shall be condemned to death. If however having regard to the circumstances of a particular case as disclosed from the record the Court thinks that the capital punishment is not called for and that lesser punishment of life term is appropriate sentence it need not adjoun the matter because no purpose would be served thereby the choice being limited to two sentences only.

(3.) We must make it clear that we have laid down adoption of this course only in a case where the choice is limited to death or life. ... ... ... ... ... ... [ Rest of the judgment is not material for the reports.] Death sentence commuted to imprisonment for life.