JUDGMENT
B.C. Patel, J.
1. State has preferred this appeal against an order of acquittal recorded by Additional Sessions Judge, Valsad, at Navsari in Sessions Case No. 66/84 on 8/2/1985, whereby the accused were acquitted for offences punishable under sections 302, 324, 323, r/w section 34 of the Indian Penal Code.
2. Short facts as it emerges from the information lodged by deceased Ratanji Govindji on 19/6/84 vide exh.42 are as under :-
The deceased was resident of Bombay. For agriculture operation, he came to village Palgaon where the incident in question took place. He had three brothers, namely, Ganapat, Gandabhai, the respondent No. 1 and Babar Govind. Lands belonging to the family stood in the name of Govind Narayan, father of the deceased and all four brothers were staying separately. Certain properties were looked after by their parents. But, since after the death of their father, all the brothers met for partition of nine divisions of one agriculture field and 12 trees of mango in village Palgaon.
3. There was altercation amongst the brothers when discussion took place about the partition. On 19/6/1984, as disclosed by deceased Ratanji in his information lodged before the police that, at about 6.00 p.m., on that day, he returned to the village and stated to his brother Gandu [Gandabhai] accused No. 1 that property should be partitioned. Accused No. 1 got enraged and started abusing. Thereupon, the informant stated not to abuse. The accused No. 1 went inside the house of his mother and came out with an axe. He delivered a blow on the head which landed on the left side of upper portion of the head. Second blow landed on the head. As a result of the injuries, informant fell on the ground. His nephew Laxman Babar arrived in meanwhile and when he was trying to persuade accused No. 1, accused No. 1 delivered a blow by means of an axe on Laxman which landed on the left ear. In the meanwhile, Ramesh Ganpat and Navin original accused Nos. 3 and 4 arrived alongwith Kishan, accused No. 2, son of accused No. 1, all with sticks in their hands and delivered stick blows on the person of deceased and Laxman Babar. Ramila, wife of deceased, Kashiben, sister in-law of the deceased removed them to the police station. On the basis of the information, investigation commenced and on completion of the investigation, chargesheet was filed against the respondents accused in the Court of Judicial Magistrate First Class, Umargaon, Dist. Valsad, who committed the accused to the Court of Sessions where charge vide exh.1 was framed against the accused. Accused No. 1 was specifically charged u/s 302 of the Indian Penal Code. The others were charged for an offence punishable u/s 302 read with section 34 of the Penal Code. The accused No. 1 was also charged for an offence punishable u/s 324 for causing an injury to Laxman while accused Nos. 2 to 4 were charged for an offence punishable u/s 324 read with section 34 of the Penal Code. Accused Nos. 2, 3 and 4 were also charged for an offence punishable u/s 323 of the Penal Code. Accused No. 1 was charged for an offence punishable u/s 323 read with section 34 of the Penal Code. The accused pleaded not guilty to the said charge and contended that they were entirely innocent. Learned Additional Sessions Judge, Valsad, on appreciation of evidence, oral as well as documentary and considering the submissions made by the counsel and the statements of accused recorded u/s 313 of the Code of Criminal Procedure, held that the accused were entitled to benefit of doubt and acquitted all the accused by judgement dated 8th February 1985. It is against this order, present appeal is preferred by the State.
4. Considering the medical evidence led by the prosecution, the trial Court held that there was no dispute with regard to the injuries found on the person of the deceased and on the person of Laxman. The trial Court also came to the conclusion that injuries found on the person of Ratanji, the deceased, were sufficient in the ordinary course of nature to cause death and the prosecution has proved that it was a homicidal death.
5. While appreciating the evidence, the Court has to bear in mind the principle laid down by the Apex Court in case of Mohan Singh and another v/s State of Madhya Pradesh [ (1999) 2 SCC 428 ]. The Supreme Court has pointed out that –
“Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which courts are created. To search it out, the courts have been removing the chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So, it is a solemn duty of the courts not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit, to find out the truth. It means on the one hand that no innocent man should be punished but on the other hand to see that no person committing an offence should go scot-free. If inspite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eye witnesses including the medical evidence, of course, after excluding those parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of a prosecution or a defence case could be concretized. It would depend on the evidence of each case including the manner of deposition and his demeanor, clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record. So courts have to proceed further and make genuine efforts within the judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.”
The Court has to appreciate the evidence considering the aforesaid guidelines.
6. So far as the oral evidence is concerned, the trial Court in para 24 of the judgement, after considering the evidence, held that there was no injury on the back of Laxman. Doctor did not notice any injury on the back of the deceased and therefore, the evidence of Laxman is inconsistent with the medical evidence. Laxman attributed 5 to 7 blows to Ramesh. In the dying declaration which is in the form of First Information Report exh.42, deceased Ratanji has attributed blows by means of stick to accused Nos. 2, 3 and 4 to have been delivered not only to Laxman, but to him also. The trial Court has relied on oral evidence of doctors and medical certificates exh. 34, 35, 37, 38 and post mortem note exh.40 for arriving at a conclusion that there were no injuries on the person of Laxman at his back or on the back of the person of the deceased. He has not stated specifically that the how many blows landed on the person of Laxman or even on his person. Injured was not in a normal condition. Deceased with head injuries with great difficulty was taken to the police station, that is also required to be kept in mind while appreciating the evidence. So far as Laxman is concerned, in the examination in-chief, he stated that accused Ramesh delivered stick blows which landed on his back. While accused Navin rushed towards Ratanji. In the cross examination, he has stated that, with force, blows were delivered on his back by means of stick which were 5 to 6 in numbeRs. There is nothing in the evidence to indicate that Laxman stated that blows were delivered on the person of deceased by means of stick. Therefore, at the most, it can be argued that accused Nos. 2, 3 and 4 did not deliver blows either on the person of the deceased or on the person of Laxman. Medical evidence is required to be seen for coming to a conclusion whether blows were delivered or not. Exh.42 clearly reveals that accused No. 1 delivered a blow on the head of Ratanji which landed on the left side of his head just above the left eye. The other blow also landed on the head as a result of which he fell on the ground. It is also clear that accused No. 1 delivered a blow on Laxman which landed on the left ear. Thus, use of an axe by accused No. 1 is specific. So far as Laxman PW-2 is concerned, he has stated that accused No. 1 went to the house of his grand mother Laxmiben [mother of accused No. 1 as well as the deceased] and came out with an axe. Accused Ramesh and Navin caught hold of Ratanji and at that point of time, accused No. 1 delivered a blow on the forehead of Ratanji. He has also stated about the blow delivered on his person which landed on the left ear. He specifically stated that, on the person of Ratanji, accused No. 1 delivered one blow which landed on the head. He has stated that the blow was by means of sharp portion of an axe. Thus, there is specific evidence about the use of an axe by accused No. 1. Considering the evidence of Laxman and the dying declaration, it is clear that accused No. 1 delivered blows by means of an axe and that story gets corroboration from medical evidence. Merely because no injury was noticed on the back of Laxman attributed to other accused, it cannot be said that accused No. 1 did not cause injuries on the person of Ratanji and Laxman. Medical evidence also reveals that other injuries were present on the person of Ratanji which could have been caused by hard and blunt object. Therefore, when witness is attributing the part played by other accused, then in a case like this, at the most, the Court could have said that as the injuries were possible by hard and blunt object and when neither Laxman, nor deceased stated specifically blows being delivered on the deceased by Accused Nos. 2, 3 and 4, the benefit of doubt should be given to accused No. 2, 3 and 4. It is also required to be noted that, in the dying declaration, there is not a whisper that Ratanji was alone and on sustaining injuries, he raised a cry and as a result of which, others came. What he has stated is that as he fell down, Laxman came and blows were delivered on his person also. When Laxman specifically says that they were together, the trial Court ought to have considered this aspect in proper perspective and ought not to have rejected the evidence.
7. It was submitted that so far as injuries sustained by the deceased and Laxman are concerned, Medical Officer opined that the injuries were possible by hard and blunt substances and therefore, the evidence of Laxman as well as dying declaration can be said to be inconsistent. The trial Court in para – 26, 27 and 28 arrived at a conclusion that the oral evidence is not consistent with the medical evidence. After considering certain decisions which are referred to in para 29, in para 30, the trial Court arrived at a conclusion that, in view of inconsistent evidence, namely, the medical and evidence of eye witnesses, the benefit of doubt should be given to the accused. It was the duty of the trial Court to scrutinize the evidence and to reject the part if it finds difficult to accept, but the specific evidence which gets support from the medical evidence should not have been rejected. In para 31, the trial Court doubted the prosecution version on the ground that, if Laxman and deceased came together as stated by Laxman from village Timbi, then there should have been a copy of 7/12 Form with the deceased. The same having been not found, the trial Court considering the evidence of police officer, inferred that both must have separated and deceased alone must have gone home. Thereafter, keeping the 7/12 form at the house, he must have come out and incident must have happened. The trial Court considered exh.42 dying declaration, inferred that there was an assault on the deceased, but Laxman came thereafter and therefore, in all probability, Laxman must not be with the deceased at the time when the blows were inflicted by accused No. 1 and in view of inconsistent evidence, the benefit of doubt should go to the accused. The trial Court has seriously erred while arriving at a conclusion that the Form No. 7/12 was not found from the person of the deceased as admitted by the police officer and therefore, the story cannot be accepted as stated by Laxman. The trial Court ought to have seen the Panchnama exh.16 that refers only taking possession of the clothes which were put on by the deceased. There is nothing in the Panchnama to show that the pockets of the clothes were searched by the police at any point of time. It is unsafe to proceed on the basis of inference. Under the circumstances, the trial Court has seriously erred in taking into consideration non-finding of 7/12 form as a circumstance against the prosecution for arriving at a conclusion that Laxman came subsequently.
8. The trial Court in para 32 has pointed out that, as per the prosecution version, the deceased was dragged. The deceased and injured took rest on the mattresses in the house and therefore, the pillow and mattresses which were blood stained, ought to have been taken in possession by the police. The trial Court also considered that Ratanji went on foot upto the gate and thereafter, he was dragged behind the house of one Babu Master. All this raises a doubt and the benefit must go to the accused. The trial Court in para 34 observed that the dragging by the accused is highly improbable and unnatural. Kusumben and Ramilaben were not the eye witnesses and it is difficult to understand how they arrived at the place near the house of Babu Master. Explanation given by Kusumben is not accepted by the trial Court for her presence near the house of Babu Master. The trial Court has held that when accused were seen dragging Ratanji, ordinarily persons residing in the street would get together and absence of this raises a doubt. The trial Court has not accepted the explanation of Babarbhai. The trial Court held that the evidence of witnesses is unnatural and therefore, cannot be accepted. The trial Court ought to have considered the evidence of Lallubhai Patel PW-1, the Circle Inspector. It is clear from the evidence and map exh.8 that there are no houses nearby the scene of incident. The trial Court has proceeded on the assumption that the incident took place in a village [or in a street in a village]. The trial Court observed that the persons residing in the street would come out and absence of this raises a doubt about the prosecution version. From the map, it is clear that four huts are situated at different places near the scene of occurrence. In the east, there is an agricultural land and the land used for pasture. On the northern side, there was a hedge. From the map, it is clear that the incident took place, away from the houses. In the cross examination, the witness has pointed out that village Padgam is at a distance of about 2 KMs and by showing houses in the map, village is shown and from that distance, one will have to walk 1 KM to reach the scene of occurrence. On the south eastern direction, there were four hutments of fishermen which were at about distance of 100 – 150 feet. Thus, it is very clear that there were no houses and therefore, reasoning given by the trial Court that people residing in the street must have collected, cannot be accepted.
9. As pointed out earlier, it becomes the duty of the Court to make an effort and to find out truth. The Courts are created for the same purpose. In searching out the truth, the courts are required to remove the chaff from the grain. As pointed out by the apex Court, it is onerous duty of the Court within the permissible limit to find out the truth. The prosecution witnesses many times depose before the Court with improved version. Some times, their version is tailored with embroidery. Sometimes, their version may be exaggerating. The duty of the court is to remove such embellishment, embroidery or exaggeration as far as possible to come to correct version. As far as possible, it is the duty of the court to do the exercise and to do the justice.
10. In the instant case, incident took place at 6.00 p.m. The facts are established that Ratanji sustained injuries on head. Laxman also sustained injuries on head. It is required to be noted that Ratanji and Laxman were first examined by Dr. A.K. Shah. His evidence, so far as nature of injuries is concerned, requires greater weightage. In view of the specific evidence, it is clear that accused No. 1 delivered blows by means of an axe on the person of deceased Ratanji as well as Laxman. As discussed above, the medical evidence corroborates the version of the prosecution and therefore, view taken by the trial Court in so far as accused No. 1 is concerned appears to be erroneous view. It was submitted that the evidence of Laxman who was the only eye witness to the occurrence should not be accepted as he has involved accused Nos. 2, 3 and 4. It is required to be noted that as per medical evidence, there were injuries on the person of deceased which were caused by use of axe and one injury was possible by sharp edge and the other by blunt portion of axe. The Medical Officer in his cross examination has also stated that the injuries were possible by hard and blunt object like a blunt portion of an axe and therefore, the benefit of doubt which is given to the accused Nos. 2, 3 and 4 is concerned, may not be interfered with. From this, it cannot be said that the evidence of prosecution is not acceptable in so far as accused No. 1 is concerned. As said earlier, there is clear, cogent and convincing evidence on record so far as accused No. 1 is concerned. The trial Court has given undue importance to the exaggeration, embellishment and woven embroidery. It is the duty of the Court to scrutinize the evidence carefully and to see that acceptable evidence is accepted. It is not always necessary that the witness evidence is doubtful with regard to some of the accused, his evidence is required to be rejected in toto.
11. Dr. A.K. Shah, Medical Officer, who examined Ratanji on 19/6/84, at 8.30 p.m. found the following injuries on his person :-
[1] A contused lacerated wound on the external occipital protuberance of the head. Size 1.1/2″ x 1″ x bone deep. [ Advice X-Ray plate of the injured part for detection of fracture underneath the injury. ]
[2] Incised wound 1/2″ above the left eye brow. Size 3″ x 1″ x bone deep. Injury was fresh, untreated with profuse bleeding from the injury. Edges of the injury were sharp and clean cut. [ Advice X-Ray plate of the injured part for detection of fracture underneath the injury.]
[3] Hematoma, 1/2 ” below the lower lid of the left eye brow – size 1″ x 1″.
[4] [ Subaural ] abrasion 1/2″ above from the injury No. 2 – size 1/2″ x 1/2″.
12. In the opinion of the Medical Officer, injuries at Srl. No. 1, 3 and 4 were such which could have been caused by the hard and blunt substance. According to Medical Officer, injury No. 1 may prove fatal. Injury No. 2 was grievous. Injury No. 2 in the opinion of the Medical Officer was such as it could have been caused by a sharp cutting instrument. So far as the ages of the injuries were concerned, the Medical Officer opined that it must be 3 to 4 hours old. The doctor issued the medical certificate which is at exh.34.
13. So far as Laxman is concerned, Dr. A.K. Shah, Medical Officer has examined him on 19/6/84 at 8.30 p.m. and found the following injuries:-
[1] Incise wound on the lower part of the left ear. Size 1″ x 1″ x muscle deep. Injury was bleeding, fresh and untreated.
[2] Incised wound on the root of the left ear. Size 1/2″ x 1/2″ x skin deep. Injury was bleeding, fresh and untreated. [Edges of both the above injuries No. 1 and 2 were grievous.] According to Medical Officer, injury was grievous. According to Medical Officer, injuries could have been caused by a sharp cutting instrument.
14. Dr. Rajendra Jain, PW-12 examined Ratanji and noticed the following injuries:-
[1] C.L.W. over the occipital region on head – size 2cm x 1 cm x 1/2 cm margin irregular. The wound was already clean and stitched by Medical Officer, Umargaon.
[2] Lacerated wound over the left forehead. 1 cm above the left eye brow. Size 5 cm x 6 cm x 1 cm. The wound was clean and stitched by Medical Officer, Umargaon. The bleeding was continued. {Medical officer opened the wound and observed that underlined bone was crushed into pieces around the orbit. He cleaned and bandaged the wound and referred the patient to the Civil Surgeon, Navsari for further treatment with his note].
[3] Hematoma [collection of blood] 1/2 cm below in the lower lid. size 2 cm x 2 cm and also subconjuctival haemorrhage.
[4] Abrasion 1 cm away from injury No. 2. Size 1 cm x 1 cm. Bleeding was present.
15. Medical Officer issued certificate at exh.37. According to the Medical Officer, injury could have been caused by hard and blunt substance like muddamal articles No. 5, 6 and 7 i.e. the sticks before the Court. According to the medical officer, injury No. 2 was serious and fatal. Looking to the nature of injury, he was in a position to give his opinion without X-ray. He stated that when Ratanji came, he was talking, but his condition was deteriorating.
16. Thus, reading the evidence of these two Medical Officers, it is clear that the deceased and Laxman sustained injuries which could have been caused by sharp cutting instruments like muddamal Article 4. There were injuries on the person of deceased which could have been caused by hard and blunt substance.
17. Dr. Jain examined Laxman and noticed the following injuries :-
[1] Incised wound over the left ear in its lower part. Size 2.1/2 cm x 2 cm x 1/2 cm. Anterior aspect margin regular, clean cut with bleeding.
[2] Incised wound over the back of left external ear at its root 1.1/2 cm x 1 cm, margin regular and clean cut with bleeding.
[3] Tenderness over the left side of the neck.
18. Injury Nos. 1 and 2 were stitched and dressed by Medical Officer, Umargaon. However, as the bleeding was continued from the wound, the medical officer again cleaned and stitched them. Patient was admitted as an indoor patient. Stitches were removed on the 8th day. The certificate issued by the medical officer with regard to Laxman is at exh.38. Medical Officer opined that the injuries sustained by Laxman were possible by a sharp cutting weapon like muddamal axe article No. 4 before the Court. According to his opinion, both the injuries were possible by a sharp edge of the instrument. According to the Medical Officer, injuries No. 1 and 2 sustained by Laxman were not possible by a single blow. He was specific that each injury was caused by separate blows.
19. Dr. Vora, Medical Officer, PW-13 has performed the post mortem on the person of deceased. The post mortem note reveals the following external injuries :-
[1] 3.1/2″ stitched wound occipital region [vertical].
[2] 2.1/2″ stitched wound just above left eye / to left eye brow.
[3] Hematoma over vast subconjective haemorrhage left eye.
20. On internal examination, so far as head is concerned, hematoma was noticed just above the left eye brow and also occipital region. There were fracture of left frontal regional bone [parallel] // left side frontal region limb extending upto left super orbital margin and root of left orbital socket. Occipital bone extending upto posterior margin of framan magnum. Blood clots over cerebellum. In the opinion of the Medical Officer, death was due to fracture of posterior cranical fossa and fractures of cranical fossa [orbital] leading to haemorrhage and shock.
21. Dr. Arvindbhai Shah, PW-11 was the first person in point of time to examine the person of Ratanji. On seeing the injuries, he has opined that injury No. 2 on the person of Ratanji could have been caused by sharp cutting weapon. So far as Laxman is concerned, the said Medical Officer was the first person in point of time to examine Laxman and looking to the nature of injuries, he has opined that both the injuries could have been caused by sharp cutting weapon. Thus, it is very clear that there was use of an axe for causing injuries to Laxman and Ratanji, the deceased. It is clear that, the injuries on the deceased were caused not only by blunt portion of an axe, but also by sharp portion of an axe. Injury No. 1 noticed by Dr. Arvindbhai was bone deep. Thus, reading the evidence of the medical officer, it is very clear that so far as Laxman is concerned, he was attacked by means of an axe, which is attributed to accused No. 1. So far as Ratanji, the deceased is concerned, it is clear that accused No. 1 delivered blows by means of an axe. That is clear from the specific evidence of Dr. Arvindbhai Shah, PW-11.
22. It is also required to be noted at this stage that it was submitted before us by the learned Additional Public Prosecutor that there is evidence of Laxman who says that stick blows were delivered by accused No. 2, 3 and 4. The medical evidence corroborates the version of the eye witness. Even Ratanji has stated in exh.42 that there was use of stick by accused No. 2, 3 and 4 and therefore according to the prosecution, accused No. 2, 3 and 4 should be convicted having participated in assault and in causing fatal injury on the person of the deceased. It is required to be noted that, so far as Ratanji is concerned, he has specifically stated that two blows were delivered by accused No. 1 on his person and thereafter, he fell down. Ratanji stated specifically in FIR about use of sticks by other accused. However, the statement is vague. No specific blows are attributed to any one. Thus, it is clear that the order of acquittal in so far as accused Nos. 2, 3 and 4 are concerned, requires no interference.
23. The question now to be considered by the Court is what offence is committed by accused No. 1.
24. Accused No. 1 when asked by deceased for partition, started giving filthy abuses. Deceased stated not to give abuses and thereupon, accused went to the house of his mother and came out with an axe and delivered a blow by means of an axe. He has not rested there, but delivered another blow. The accused No. 1 used an axe for causing injury on the person of Laxman. These aspects are required to be kept in mind. There is no suggestion that the incident in question took place as a result of sudden fight. The use of weapon namely, an axe, which indicates that the accused knew that bodily injuries which were being caused on the person of the deceased would be sufficient in the ordinary course of nature to cause death. Medical Officer who performed the autopsy has clearly stated that considering the injuries sustained by the deceased in the ordinary course of nature, the death would be the result. There is no cross examination of the Medical Officer on this point. In view of the medical evidence which we have discussed in the earlier part of the judgement, it is clear that accused has used an axe as a weapon for causing the injuries. At the time of meeting, he had no axe with him but he ran and brought the same from the house and delivered blows. The part selected by the accused in causing the injuries is also a relevant factor. In the instant case, the blows were inflicted on the head. Therefore, considering the manner in which the weapon was brought, the use of force, the part selected by the accused for causing the injuries and the nature of injuries sustained by the deceased are relevant factors to be taken into consideration. At this stage, the cause of death is required to be considered, which, in the post mortem note, is as under :-
“Death is due to fractures posterior cranical fossa and fractures ant. cranical fossa [orbital] leading to haemorrhage and shock.”
Medical evidence is also clear that injury was possible by an axe. As held by the Apex Court, what is required to be proved by the prosecution is that, a bodily injury is present, secondly the nature of injury must be proved which in the present case prosecution has successfully proved and thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional or with some other kind of injury was intended and fourthly, the injury of the type described may be of aforesaid three elements set out above is sufficient to cause death in the ordinary course of nature. As pointed out in the case of Virasing V/s State of Punjab reported in AIR 1958 SC 465, this part of inquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution [and of course the burden is on the prosecution through out], the offence is murder u/s 300 “Thirdly”. Mr. Raval, learned Advocate appearing for the accused was not able to point out from the nature of injuries to take the case out from the purview of section 300 [thirdly]. In view of what we have stated hereinabove, it is clear that accused No. 1 must be held guilty for an offence u/s 302 IPC.
25. In view of what we have stated hereinabove, the order of acquittal in so far as accused No. 1 is concerned is quashed and set aside. So far as accused No. 2, 3 and 4 are concerned, the order stands confirmed.
26. Mr. Raval, learned Advocate appearing for the accused submitted that, in view of section 235 of the Code of Criminal Procedure, if the accused is convicted, the Court unless proceeds in accordance with the provision of section 360, has to hear the accused on the question of sentence and thereafter, the Court has to pass the sentence in accordance with law. He submitted that even in case where accused is punished u/s 302 IPC, it becomes the duty of the Court to hear the accused on the question of sentence. It is required to be noted that when the Statute prescribes minimum sentence, then even if the accused is heard on the question of sentence, the minimum sentence is to be imposed. However, if the Court has to exercise the discretion in imposing sentence, i.e. where minimum is not prescribed, then the question of hearing the accused would arise. If the accused is convicted for an offence u/s 302 IPC and if the Court is of the view that punishment provided for this offence which is minimum is to be imposed, then there may not be question of hearing the accused on the question of sentence, but if the Court is of the opinion that more than the minimum sentence is required to be imposed, then the Court has to hear the accused on the question of sentence. When there is a discretion with the Court, no doubt the court will have to hear the accused on the question of sentence. But when minimum sentence is prescribed and the Court is awarding that minimum punishment, there may not be question of hearing the accused as contemplated u/s 235[2] of the Code of Criminal Procedure. The apex Court in case of Tarlok Singh v/s State of Punjab AIR 1977 SC 1747 in para-2 pointed out as under :-
“Section 235, Cr.P.C. [1974] makes a departure from the previous Code on account of humanist considerations to personalize the sentence to be awarded. The object of the provision is to give a fresh opportunity to the convicted person to bring to the notice of the court such circumstances as may help the court in awarding an appropriate sentence having regard to the personal, social and other circumstances of the case. Of course, when it is a case of conviction u/s 302, IPC, if the minimum sentence is imposed, the question of providing an opportunity u/s 235 would not arise.”
27. Thus, when it is a case of conviction u/s 302 IPC and if the minimum sentence is imposed, the question of providing an opportunity u/s 235 would not arise. In the facts and circumstances of the case, we are passing only minimum sentence as provided in section 302 – IPC i.e. imprisonment for life. The respondent No. 1 – accused No. 1 need not be given an opportunity of hearing. Punishment prescribed under section 302 is with death or imprisonment for life and fine. We are passing an order of conviction for an offence punishable u/s 302 IPC sentencing the accused No. 1 to undergo imprisonment for life, the question of hearing the accused will not arise. In the circumstances, as narrated hereinabove, original accused No. 1 is held guilty of an offence punishable u/s 302 IPC. The order of acquittal recorded by the trial Court in so far as accused No. 1 is concerned, is quashed and set aside and the accused No. 1 is sentenced to undergo imprisonment for life. So far as accused No. 2, 3 and 4 are concerned, the appeal stands dismissed.