l A 337  3671976 Appeals by Special Leave from the Judgment and Order dated 2431976 of the Punjab and Haryana High Court in Srl
A No 757 712 75 and Murder Reference No 2775 and in Crl
Appeal No 759 of 1975 A K Sen and Harjinder Singh for the appellant
NS Das Behl for the respondent
The Judgment of the court was delivered by KRISHNA IYER J
In Crl
Appeal No 3371976 by special leave Shri AK Sen has confined his challenge indeed leave itself was limited to the question of sentence
The case of murder was proved and the conviction by the Sessions Court was confirmed by the High Court
The Sessions Judge awarded life imprisonment to two accused and death sentence to the appellant
The High Court confirmed the death sen tence and hence this appeal
Section makes a departure from the previous Code on account of humanist considerations to personalise the sentence to be awarded
The object of the provision is to give a fresh 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 under section 302 IPC if the minimum sentence is imposed the question of providing an opportunity under Sec 235 would not arise
 In this case it is admitted that no opportunity was given under section 2352 Cr
PC to the appellant to
show cause as to why the lesser sentence of life imprisonment should not be inflicted
We may make it absolutely clear that such a failure will not affect the conviction under any circumstances
The only point is relevant to sentence
Even there in a murder ease where the charge of murder is made out the limited question is as between the two sen tences prescribed under the Penal Code
In Santa Singh vs State of Punjab1 this Court considering section 235 2 Cr
PC held that the hearing contemplated by that sub section is not confined merely to hearing oral submissions but extends to giving an opportunity to the prosecution and the accused to place before the court facts and materials relating to the various factors bearing on the question of sentence and if they are contested by either side then to produce evidence for the purpose of establish ing the same
Of course in that particular case this Court sent the case back to the sessions court for complying with section 2352 Cr
It may well be that in many cases send ing the case back to the Sessions Court may lead to more expense delay and prejudice to the cause of justice
In such cases it may be more appropriate for the appellate court to give an opportunity to the parties in terms off section 2352 to produce the 1 AIR 1976 SC 2386 713 materials they wish to adduce instead of going through the exercise of sending the case back to the trial court
This may in many cases save time and help produce prompt justice
In the present case we propose to adopt that course and counsel for the parties agree that they will rely upon the materials available of record and they have nothing more to offer to the court bearing on the question of sentence
It will be an idle formality in a situation like that to remit the case to reconsider the question of sentence to the Sessions Court
Coming to the facts of the present case having heard both sides we are impressed by Shri Sen s submission that the death sentence has been inflicted nearly two years ago and the agony of such a sentence has been an excruciating experience suffered by the convict for a long period
This by itself may not be a circumstance to bring down the death sentence if otherwise the act is took brutal depraved or meriting the highest penalty
It has been now established in many decisions of this Court that death sentence must be awarded where there are aggravating factors vide E Annami na vs State of Andhra Pradesh1
The appellant had two other assailants with him who have been awarded life impris onment
Moreover it is evident from the records that there was an exchange of abuse between the parties viz Shiv Singh and the accused party
It is also apparent that there was no motive for the appellant to kill the innocent child who died a circumstance which has influenced the courts below in awarding the capital sentence
The other circumstances present also indicate that there is no partic ular reason why the appellant should have been given the severer sentence and we are satisfied that the ends of justice would be met be awarding life imprisonment
We accordingly direct that the sentence of life imprisonment should be substituted in place of death sentence awarded by the trial court and confirmed by the High Court
We allow the appeal to this extent
Appeal No 367 of 1976 is dismissed as not pressed
Cr A 337 allowed in part and sentence modified
Cr A 36776 dismissed


Summary:
The appellant was convicted along with two other accused under section 302 IPC and sentenced to death while the other two were sentenced to life imprisonment
In appeal to this Court against the orders of the High Court confirming the death sentence imposed the special leave was granted limit ed to sentence
Allowing the Criminal Appeal No 337 of 1976 in part and modifying the death sentence to one of life imprisonment the Court HELD 1 The object of section 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 have regard to the per sonal social and other circumstances of the case712 D 2 Failure to give an opportunity under s 2352 Cr
PC will not affect the conviction under any circum stance
In a murder case where the charge is made out the limited question is as between the two sentences prescribed under the Penal Code
If the minimum sentence is imposed
question of providing an opportunity under section 235 would not arise
712 F 3 The hearing contemplated by section 2352 is not con fined merely to hearing oral submissions but extend giving an opportunity to the prosecution and the accused to place before the court facts and materials of sentence andif they are contested by either side then to produce evidence for the purpose of establishing the same
712 G Santa Singh vs State of Punjab AIR 1976 S C 2386 reiter ated
4 To save time and expense and help produce prompt justice it may be more appropriate for the appellate court to give an opportunity to the parties in terms of section 2352 to produce the materials they wish to adduce instead of going through the exercise of sending the case back to the trial court
1713 A In the instant case the Court modified the death sen tence to one of life imprisonment in view of the facts i The death sentence has been inflicted nearly two years ago and the agony of such a sentence has been an exCruciating experience suffered by the convict for a long period ii The appellant had two other assailants with him who have been awarded life imprisonment iii There was no motive for the appellant to kill the innocent child and iv The other circumstances present indicate that the ends of justice would be met by awarding life imprisonment
713 G E E Annamma vs State of Andhra Pradesh   referred to