KARTAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) ON behalf of the appellant, a preliminary objection has been raised in this appeal that the sentence passed against the appellant invitiated due to the non -compliance of the mandatory provision of section 235(2) of the Code of Criminal Procedure.

(2.) THE record shows that the learned Additional Sessions, Judge, Ludhiana passed the order of a conviction under section 376, Indian Penal Code against the appellant on 20.4.1981. Thereafter, arguments on the question of quantum of sentence were also heard by him on th same day which was followed by the passing of the order of sentence. There can be no manner of doubt that according to the record of this case, the learned Additional Session Judge failed to comply with the provisions of section 235(2) of the Code of Criminal Procedure in as much as no opportunity was granted by him to the appellant to adduce evidence on the question of sentence after he was convicted. No doubt the counsel for the appellant was heard on the question of sentence, but mere hearing without affording due opportunity to the appellant to adduce evidence in support of his plea on the point of sentence does not amount to compliance of section 234(2) of the Code of Criminal Procedure. On this point, the following observation made by the Supreme Court in Santa Singh v. The State of Punjab, 1976 Chandigarh Law Reporter (SC) 96 are of great relevance : - "The hearing on the question of sentence would de rendered devoid of all meaning and content and it would become an idle formality if it were confined merely to hearing oral submission without any opportunity being given to the parties and particularly to the accused to produce material in regard to various factors bearing on the question of sentence, and if necessary, to lead evidence of the purpose of placing such material before the Court." The Supreme Court finally held : - "We are therefore, of the view that the hearing contemplated by section 235(5) is not confined merely to hearing oral submission but it is also intended to give an opportunity to the prosecution and the accused to place before the Court facts and material relating to various factors bearing on the question of sentence and if they are contested by either side then to produce evidence for the purpose of establishing the same."

(3.) IN this view of the matter, the order of sentence passed by the learned Additional Sessions Judge upon the appellant without opportunity being granted to him to adduced evidence in support of his plea on the point of sentence is not in accordance with law and it must accordingly be set aside.