S.N. Modi, J.
1. This is a jail appeal by accused Kijod who has been convicted by the learned Additional Sessions Judge, Bhilwara, vide his judgment dated September 2, 1976, for the offence under Section 304 Part (2) I.P.C. and sentenced to undergo rigorous imprisonment for three years.
2. The charge against the accused was that on August 20, 1975, in the after noon at village Bagjika-Jhopdiyan, the accused appellant intentionally committed murder of Rupa & thereby committed an offence punishable under Section 302 IPC. The learned Additional Sessions Judge after trial, came to the conclusion that offence under Section 302 IPC. was not made out against the accused. He accordingly acquitted the accused of the offence under Section 302 IPC. but convicted him of the offence under Section 304 Part II I.P.C.
3. The prosecution, in order to establish the guilt of the accused-appellant, examined Soma, Bhabhoota and Narayan as eye-witnesses. All of them have said that the accused-appellant gave a 'lathi' blow on the head of deceased Rupa. The learned Additional Sessions Judge has believed the testimony of these eyewitnesses and I see no good ground to take a contrary view. The testimony of these eve-witnesses is further corroborated by the medical evidence furnished by Dr. Chiranjilal Verma who conducted postmortem examination on the dead body of Rupa. He found only one external injury, namely:
Bruise with Hematoma about 8' x 6' in size. Irregular hematoma with ill defined margins, on the vault of the skull on the occipital and left parietal region.
On opening the skull, the doctor found the following two internal injuries:
(1) Communicating fracture of the occipital and the left temporal bone. Fracture line was about 10' in length.
(2) Cracked fracture of sphenoid bone involving base of the skull besides there was extensive subdural and extradural hematoma, and the brain surface was congested.
4. In view of the above evidence, the conviction of the accused-appellant under Section 304 Part II I.P.C. cannot be said to be Illegal or improper. The learned Counsel for the accused appellant was not able to point out any substantial ground to disbelieve the testimony of the eye-witnesses.
5. He, however, contended that in the present case, the requirement of Section 235(2), Code of Criminal Procedure, 1973, was not complied with, In my opinion, the contention is well founded.
6. It is clear from the judgment an well as from the order sheet that the accused-appellant was convicted of the offence under Section 304 Part II IPC. on September 2, 1976 and sentenced on the same day. Having convicted the accused appellant, the learned Additional Sessions Judge heard the learned Counsel for the defence and the learned Public Prosecutor regarding the question of sentence. The learned Counsel for accused made a prayer that on opportunity be afforded to the accused to lead evidence on the question of age of the accused, The learned Additional Sessions Judge refused to afford any opportunity to the accused to lead the evidence to prove his age, on the ground that the learned Counsel for the accused had made such a prayer earlier during the course of the trial, but subsequently, be withdrew that prayers That, in my opinion, is no ground to deprive the accused to produce the evidence at the time of beaming the accused on the question of sentence. Section 236 Cr. PC 1973 reads as follows;
235. Judgment of acquittal or conviction (1) After beaming arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
The above section came for interpretation before the Supreme Court in Santa Singh v. State of Punjab : 1976CriLJ1875 . Their Lordships observed;
This provision is clear and explicit and does not admit of any doubt. It requires that in every trial before a court of sessions there must first be a decision as to the guilt of the accused. The court must in the first instance, deliver a judgment convicting or acquitting the accused. If the accused is acquitted no further question arises. But if he is convicted, then the court has to 'hear the accused on the question of sentence, and then pass sentence on him according to law'. When a judgment is rendered convicting the accused, he is, at that stage, to be given an opportunity to be heard in regard to the sentence and it is only after hearing him that the court can proceed to pass the sentence.
Their Lordships further observed.
But, on the interpretation of Section 235(2) another question arises and that is, what is the meaning and content of the words hear the accused. Does St mean merely that the accused has to be given an opportunity to make his submissions or he can also produce material bearing on sentence which has so far not come before the Court? Can he lead further evidence relating to the question of sentence or is the hearing to be confined only to oral submissions? That, depends on the interpretation to be placed on the word 'hear' Now the word 'hear' has no fixed rigid connotation. It can bear either of the two civil meanings depending on the context in which it occurs. It is well settled rule of interpretation, hallowed by time and sanctified by authority, that the meaning of an ordinary word is to be found not so much in a strict etymological propriety of language, nor even in popular use as in the subject or occasion on which it is used and the object which is intended to be attained. It was Mr. Justice Holmes who pointed out in his inimitable style that a word is not a crystal, transparent and unchanged: it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.
Here, in this provision, the word 'hear' his been used to give an opportunity to the accused to place before the court various circumstances bearing on the sentence to be passed against him Modern penelogy, as pointed out by this Court in Ediga Anamma v. State of Andhra Pradesh : 1974CriLJ683 regards crime and criminal as equally material when the right sentence has to be picked out'. It turns the focus not only on the crime, but also on the criminal and seeks to personalise the punishment so that the reformist component is as much operative as the deterrent element, it is necessary for this purpose that facts of a social and personal nature, sometimes altogether irrelevant, if not injurious, at the stage of fixing the guilt, may have to be brought to the notice of the court when the actual sentence is determined.
We have set out a large number of factors which go into the alchemy which ultimately produces an appropriate sentence and full & adequate material relating to these factors would have to be brought before the court in order to enable the court to pass an appropriate sentence This material may be placed before the court by means of affidavits, but if either party disputes the correctness or veracity of the material sought to be produced by the other, an opportunity would have to be given to the party concerned to lead evidence for the purpose of bringing such material on record. The hear-Jog on the question of sentence, would be rendered devoid of all meaning and content and it would become ad idle formality, if it were confined merely to hearing oral submissions 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 for the purpose of placing such material before the court. This was also the opinion expressed by the Law Commission on its Forty eight Report where it was stated that the taking of evidence as to the circumstances relevant to sentencing should be encouraged and both the prosecution and the accused should be allowed to cooperate in the process. Toe Law Commission strongly recommended that 'if a request is made in that behalf by either the prosecution or the accused, an opportunity for leading evidence on the question' of sentence 'should be given'. We are, therefore, of the view that the hearing contemplated by Section 235(2) is not confined merely to hearing oral submissions, hut it is also intended to give an opportunity to the prosecution and the accused to place before the court facts & material relating to various factors bearing on the question of sentence and if they are contested be either side, then to produce evidence for the purpose of establishing the same, Of course, care would have to be taken by the court to see that this baring on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings. The claim of due and proper hearing would have to be harmonised with the requirement of expeditious disposal of proceedings.
7. Now, in the present case, a definite prayer was made by the defence counsel to afford him an opportunity to produce evidence to prove the age of the accused. The learned Counsel for the defence wanted to show that the age of the accused, at the time of commission of the offence. was lets than 21 years. In case the accused, on the basis of evidence adduced by him, had succeeded in proving that his age at the time of the commission of the offence was less than 21 years of age, he would have been entitled to get the benefit of the provision of Section 6 of the Probation of Offenders Act. The non-compliance with the provisions of Section 235(2) in the circumstances, ex facie, vitiates the order of sentence passed by the learned Additional Sessions judge, It has been held in Santa Singh's Case : 1976CriLJ1875 that where no opportunity has been given to the accused to produce material and make submissions regarding the sentence to be imposed on him, failure of justice must be regarded implicit and Section 465 Cr.PC. cannot, in the circumstances, have any application.
8. I would like to stress here that in the sessions trial or the warrant trial where also a similar provision as in Section 235(2) Cr.P.C. exists, the trial court should split up the trial into two parts (1) the stage which terminates in the passing of the judgment of conviction and (2) the stage which on conviction results in imposition of sentence on the accused Splitting up of trial in the aforesaid manner is absolutely mandatory in view of the provisions of Section 235(2) Cr.PC. Noncompliance to it will undoubtedly vitiate the final order passed by the court, The provisions of Section 235(2) Cr.P.C. have a very sound and definite purpose to vehieve and they should not be considered as merely ritual formality. Section 235(2) Cr.P.C. enjoins on the court that after passing a judgment of conviction, the court should stay its hands and hear the accused on the question of sentence before passing the sentence in accordance with the law. In other words, the accused must be given an opportunity of making his representation regarding the question of sentence and for this purpose it is the duty of the court to afford opportunity to the accused to place such materials as the accused may think may have bearing on the question of sentence. I am sorry to note that several trial court a dealing with Sessions trials or warrant trials do not comply with the provisions of Section 235(2) Cr.P.C in the manner as laid down by the Supreme Court in Santa Singh's case : 1976CriLJ1875 .
9. As already observed above, since in the present case, the trial court has not complied with the requirement Section of 235(2) Cr.P.C, there is no other alternative but to remand the case back to the trial court for compliance with the provisions of Section 235(2) Cr.P.C.
10. I, accordingly, allow the appeal and while maintaining the conviction of the accused appellant under Section 301 Part II I.P.C. set aside the sentence passed by the learned Additional Sessions Judge and remand the case back to the trial court with the direction to pass appropriate order after giving an opportunity to the accused appellant to produce evidence on the question of sentence in accordance with provisions of Section 235(2) Cr. P.C. 1973.
11. The learned Counsel for the appellant prays that the appellant be released on bail. The question of enlarging the accused-appellant on bail shall be taken up and decided on merits by the trial court.