Patna High Court
Chandan Kumar @ Chandan Yadav vs The State Of Bihar on 8 August, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No. 526 of 2023
Arising Out of PS. Case No.-92 Year-2014 Thana- GOH District- Aurangabad
======================================================
Chandan Kumar @ Chandan Yadav identified as accused 'B', aged about 25
years, Gender-Male, S/o Shiv Sharan Yadav, Resident of Village-
Bhawanipur, PS- Goh, District- Aurangabad (Bihar)
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Krishna Singh, Senior Advocate
Mr. Bhaskar Shankar, Advocate
Mrs. Meena Singh, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
For the Informant : Mr. Anil Kumar Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA)
Date : 08-08-2024
I.A. No. 1 of 2024
Learned senior counsel for the appellant
has pointed out that the appellant has filed I.A.
No.1 of 2024, praying for grant of bail and also
pointing out certain relevant aspects with regard to
the correction of order passed by the concerned
Trial Court after the judgment has been passed.
Learned senior counsel for the appellant, therefore,
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
2/32
submits that looking to the facts and
circumstances of the present case, the main
matter itself be disposed of with appropriate
direction to the Trial Court with regard to the order
of sentence passed by the Trial Court.
2. Accordingly, I.A. No. 1 of 2024
stands disposed of.
Cr. Appeal (D.B.) No.526 of 2023
The appellant has been convicted on
20.03.2023
for the offence punishable under
Sections- 366-A/34 & 376D/34 of I.P.C. and
accordingly, he has been sentenced on 29.03.2023
to undergo rigorous imprisonment of 20 years and
the fine of Rs.10,000/- in default simple
imprisonment for 12 months and rigorous
imprisonment for five years and a fine of Rs.
5,000/- in default simple imprisonment for six
months by learned Additional District and Sessions
Judge-VI-cum-Special Exclusive Judge (POCSO),
Aurangabad in G.R. (POCSO) Case and C.I.S. No. 26
of 2021 arising out of Goh P.S. Case No. 92 of 2014
and both the sentences have to run concurrently.
2. Heard Mr. Krishna Singh,
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
learned senior Advocate and Meena Singh, learned
counsels for the appellant and Mr. Anil Kumar
Singh, learned counsel for the Informant along with
Mr. Ajay Mishra, learned APP for the State.
3. The brief facts leading to the filing of
the present appeal, as per fardbeyan of the
informant's, are, that victim 'x' of Goh P.S. Case No.
92 of 2014 dated 16.08.20214, aged 16 years, is
his daughter. She is student of Intermediate
Science. On 13.08.2014 at 08:00 AM, she had
gone to attend tuition, but she did not return till
01:00 P.M., then he started searching the victim-x.
On 14.08.2014, in the course of search, one
victim's friend-VF told the informant that she has
seen the victim-x at Gaya. She also told that
victim-x was taken to Gaya by the Motorcycle of
accused-C and accused-B. The victim-x was
delivered to accused-A at Gaya. When informant
received this information, he is submitting his
written application at the Police Station for suitable
action. When informant asked from the father of
the accused-D, he abused the informant and was
adamant to assault the informant. The informant
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
received call from mobile number threatening him
that if he will go to the police, he will kill the
informant. The accused persons have kidnapped
her daughter victim-x.
4. Learned senior advocate appearing for
the appellant restricted his submission at this
stage with regard to the sentence imposed by the
trial Court at the time of correcting the judgment
on 17.05.2023. It is contented by the learned
senior advocate that the appellant has been
initially convicted for the offence punishable under
Section 376D read with Section 34 of the Indian
Penal Code vide judgment dated 20.03.2023 and
vide order dated 29.03.2023 has been sentenced
to undergo rigorous imprisonment for twenty years
and fine of Rs. 10,000/- has been imposed.
However, thereafter, on the basis of application
given by the learned APP, the trial Court realised
the mistake committed by it. It was pointed out
that the charge was framed against the
appellant/convict under Section 376 and Section
366-A of the Indian Penal Code and not under
Section 376D of the Indian Penal Code, despite
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
which the trial Court convicted the appellant for
the offence punishable under Section 376D of the
Indian Penal Code. Thus, the said mistake was
pointed out by the learned APP and, therefore,
after considering the various decisions and
provisions contained in Section 362 of the Cr.P.C.,
the trial Court corrected the typographical error
whereby now the appellant has been convicted of
the offence punishable under Section 376 of the
Indian Penal Code. At this stage, it is contended
that the trial Court thereafter did not give
opportunity of hearing to the appellant/convict on
the point of sentence. It is contended that Section
376 of the Indian Penal Code provides minimum
seven years of imprisonment which may extend to
imprisonment of life, which shall mean
imprisonment for the remainder of that person's
natural life. However, in the present case, the
appellant has been sentenced to suffer
imprisonment of twenty years. Learned counsel,
therefore, urged that without going into the merits
of this case of the appellant, at present, he is
restricting his submission qua the order of
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
sentence. It is submitted that the sentence of 20
years be imposed set aside and thereafter the
matter be remanded back to the trial Court with a
direction that opportunity of hearing be given to
the appellant with regard to the sentence.
5. Learned APP for the State as well as
the learned counsel for the informant are not in a
position to dispute that though the trial Court has
changed the conviction from 376D to 376 of the
Indian Penal Code, sentence portion has not been
altered and, to that extent, the matter is remanded
back to the trial Court.
6. We have heard the contentions raised
by the learned counsel for the appellant, learned
counsel for the Informant and learned counsel for
the State. It would emerge from the evidence that
the date of incident was 13.08.2014 and FIR was
instituted on 16.08.2014 vide Goh, P.S. Case no.
92/14. The Trial commenced thereafter and the
case was heard by the Ld. Additional District &
Sessions Judge-cum- Special Exclusive Judge,
(POCSO), Aurangabad, Bihar and the date of
Judgment was 20.03.2023 and the date of order of
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
sentence was 29.03.2023.
7. It is further revealed from the record
that vide order dated 17.05.2023, the trial Court
changed the conviction of the appellant from
376D/34 of the Indian Penal Code to 376/34 of the
Indian Penal Code. However, it appears from the
record that the trial Court did not correct the
sentence and, therefore, at present in the present
appeal, we are required to consider the aspect
whether the trial Court has committed an error
while not correcting the sentence portion, though
the conviction is changed from 376D/34 to 376/34
of the Indian Penal Code. Whether the appellant
accused was required to be heard after correcting
the conviction of order dated 17.05.2023 under
Section 235 of the Cr.P.C. with regard to the
sentence.
8. The order dated 17.05.2023 states
that the errors are clerical/typographical and cited
various judgments and by the virtue of section 362
of Criminal Procedure Code (hereinafter referred as
Cr.P.C), Ld. Additional District & Sessions Judge-
cum- Special Exclusive Judge, (POCSO), corrected
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
the said judgment stating that inadvertently, there
has been typographical and clerical error in the
said judgment and by the virtue of section 362 of
Cr.P.C. it was reasonable and justifiable to correct
the clerical and arithmetical error that have
occurred due to typographical mistake/clerical
error in the judgment.
9. Without going into the merits of this
case, we are taking note of the present matter. On
perusal of the entire LCR (Trial Court record) and
the Judgment of the Ld. Trial Court, Aurangabad,
there are several points that are required to be
brought into light.
10. It emerges from the record that
initially vide order dated 20.03.2023, the trial Court
convicted the appellant for the offence punishable
under Section 376D/34 of the Indian Penal Code
and vide order dated 29.03.2023 sentenced to
suffer rigorous imprisonment for 20 years.
However, as observed hereinabove, subsequently
vide order dated 17.05.2023 conviction was
changed from 376D of the Indian Penal Code to
376 of the Indian Penal Code and, therefore, we
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
would like to consider the provisions contained in
both the aforesaid Sections.
11. Section 376 of the IPC states that-
"Whoever, except in the cases
provided for in sub-section (2),
commits rape, shall be punished
with rigorous imprisonment of
either description for a term which
shall not be less than seven years,
but which may extend to
imprisonment for life, and shall also
be liable to fine......................."
12. The provision of 376D of IPC is
envisaged as-
"Where a woman is raped by one
or more persons constituting a
group or acting in furtherance of a
common intention, each of those
persons shall be deemed to have
committed the offence of rape and
shall be punished with rigorous
imprisonment for a term which
shall not be less than twenty
years, but which may extend to
life which shall mean
imprisonment for the remainder of
that person's natural life, and with
fine:
Provided that such fine shall be
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
just and reasonable to meet the
medical expenses and
rehabilitation of the victim:
Provided further that any fine
imposed under this section shall
be paid to the victim."
13. The appellant has been given
punishment of rigorous imprisonment of 20 years
and the fine of Rs.10,000/-. It is in consonance with
the punishment of minimum punishment given
under 376D. The punishment under Section 376 of
the IPC (before the substitution by Act 22 of 2018
with effect from 21.04.2018) states that the term
of punishment shall not be less than seven years,
but may extend to imprisonment for life, and shall
also be liable to fine.
14. The trial Court has awarded 20
years of rigorous imprisonment to the accused
person but the accused person has not been given
opportunity on the point of fulfilling the provision of
Section 235(2) of Cr.P.C. The relevant extract of the
judgment of conviction, dated 20.03.2023 and the
order of sentence dated 29.03.2023, reads as
under -
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
"20&03&2023 ,dek= vfHk;qDr panu dqekj dh vksj ls gktjh nh xbZ gSA
ckn esa iqdkj fy;k x;kA iqdkj ij vfHk;qDr] vfHk;qDr ds fo}ku vf/koDrk ,oa
fo"ks'k yksd vfHk;kstd U;k;ky; esa mifLFkr gq,A fu.kZ; lquk;k x;kA vfHk;qDr
panu dqekj dks Hkk0n0fo0 dh /kkjk& 366&A ,oa 376D ds vUrxZr nks'kh ik;k
x;kA vfHk;qDr panu dqekj dks U;kf;d vfHkj{kk esa fy;k x;kA rFkk fnukad
29-03-2023 dks izLrqr djus ds vkns"k ,oa vfHkj{kk vf/ki= ds lkFk dkjk Hkstk
x;kA fn0 29-03-2023 ltk ds fcUnq ij lquokbZ gsrqA
29-3-2023 nks'kfl) vfHk;qDr panu dqekj dks dkjk ls U;k;ky; ds le{k
izLrqr fd;k x;kA ltk ds fcUnq ij vfHk;qDr ds fo}ku vf/koDrk dks lquk ,oa
fo"ks'k yksd vfHk;kstd dks lqukA vfHkys[k dk voyksdu fd;kA vfHkys[k
voyksdu ls fofnr gksrk gS fd vfHk;qDr panu dqekj dks Hkk0n0fo0 dh
/kkjk&366-A ,oa 376D ds vUrxZr nks'kh ik;k x;k gSA vfHk;qDr dks
Hkk0n0fo0 dh /kkjk 366-A ds vijk/k ds fy, 5 o'kZ dk lJe dkjkokl ,oa
3000@&¼rhu gtkj :i;k ek=½ dk vFkZ n.M dh ltk nh tkrh gSA vFkZ n.M
dh jkf"k tek ugh djus ij 3 ekg dk vfrfjDr lk/kkj.k dkjkokl dh ltk nh
tk,xhA vfHk;qDr dks Hkk0n0fo0 dh /kkjk&376D ds vijk/k ds fy, 20 o'kZ dk
lJe dkjkokl ,oa 10000@& ¼nl gtkj :0 ek=½ dk vFkZ n.M dh ltk nh
tkrh gSA vFkZ n.M dh jkf"k tek ugh djus ij 12 ekg dk vfrfjDr lk/kkj.k
dkjkokl dh ltk nh tk,xhA lHkh ltk lkFk&lkFk pysxhA fu.kZ;&i= vyx
ls 47&i`'Bksa dk vfHkys[k ds lkFk layXu gSA vfHk;qDr ds fo}ku vf/koDrk dks
fu.kZ;&i= dh lPph izfrfyfi fu%"kqYd fn;k x;kA nks'k fl) vfHk;qDr panu
dqekj dks ltk vf/ki= ,oa vfHkj{kk vf/ki= ds lkFk eaMy dkjk
vkSjaxkckn Hkstk x;kA dk;kZy; fu;ekuqlkj vfHkys[k vfHkys[kkdkj esa tek
djsaA"
15. It is evident from the aforesaid
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
extract of the judgment and order that the accused
person has been tried under Section 376 and not
under Section 376D of the IPC, creating a serious
doubt about fulfillment of the provisions of Section
235(2) of the Cr.P.C. The Court has pointed out in
its subsequent order that Section 376D/34 of the
IPC has been written due to clerical and
typographical error, but it is evident from the
perusal of above order that it is not just a case of
typographical/clerical error.
16. Taking into account that the
sentence was passed in the year 20.03.2023 and
the incident occurred on 13.08.2014. Section 376D
of the IPC was incorporated in the IPC through the
Criminal Law (Amendment), Act, 2013 and the
incident occurred on 13.08.2014. This shows that
the learned trial Court has mechanically decided
this matter and in para-52 of the said judgment, it
is mentioned that the victim was 'raped/gang
raped'. If the learned trial Court was of the view
that gang rape was committed on the victim, how
can a judgment be passed under Section 376D/34
Indian Penal Code and later changed the same to
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
Section 376 IPC citing the mistake as clerical error.
Thus, the requirement of Section 235(2) of the
Cr.P.C. is not fulfilled.
17. Section 235 of the Cr.P.C. lays
down that:-
"1. After hearing 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."
18. On the point of hearing the accused
on a post conviction stage, the law stipulates that
after completion of defence evidence, the
prosecution and defence will be heard. On the
question of sentence, the Parliament has clearly
written in to the law that the accused shall be
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
heard on the question of sentence and then pass
the sentence in accordance with law.
19. The Hon'ble Supreme Court of India
has pointed out in Jagmohan Singh Vs The
State Of U. P., 1973 SCC (CRI) 169-
"The Court is primarily
concerned with all the facts
and circumstances in so far as
they are relevant to the crime
and how it was committed and
since at the end of the trial he
is liable to be sentenced, all
the facts and circumstances
bearing upon the crime are
legitimately brought to the
notice of the court. Apart from
the cross- examination of the
witnesses. the Criminal
Procedure Code. He is also
questioned generally on the
case and there is an
opportunity for him to say
whatever he wants to say. He
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
has a right to examine him-
self as a witness, thereafter,
and give evidence on the
material facts. Again he and
his counsel are at liberty to
address the court not
merely on the question of
guilt but also on the
question of sentence. In
important cases like murder
the court always gives a
chance to the accused to
address the court on the
question of sentence."
(emphasis supplied)
20. Conviction of an accused is not a
day to day exercise and, as such, sentencing of an
accused is a very sensitive exercise of jurisdiction
and merely giving a sentence on a mechanical
prescription without taking into account the law, in
vogue at the relevant time, whether it is a newly
formed law or an old law. It is the duty of the Court
to take into account the said law. The Court should
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
always collect material necessarily to help award a
just punishment. It is the duty of the Court to
collect the facts bearing on punishment with
rehabilitating approach. The said provision of
Section 235(2) of the Cr.P.C. is mandatory and
confers a right on the offender to be heard on
question of sentence.
21. Section 376 and Section 376D of
the IPC, both relates to committing the offence of
rape, but both are very different to each other as
one relates to rape by a single person and the
other relates to gang rape committed by more than
one person, which is very heinous and gravely
affects the society at large.
22. If an accused person is not heard on
the question of sentence in accordance with law
and upon the correct provisions of the law, it
gravely affects trial amounting to by-passing of an
important stage of trial. It can be said that such
deviation constitutes disobedience to the
mandatory provision, i.e., Section 235(2) of the
Code of Criminal Procedure, which result into
illegality of such a character, which vitiates the
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
sentence and further making the justice to be
implicit.
23. The provisions of Section 235(2) is a
clear and explicit provision and it contains cardinal
features of natural justice i.e., Audi alteram
partem, that the accused must be given an
opportunity to represent himself against the
sentence imposed on him. Principles of natural
justice is the most fundamental part of criminal
procedure and non-compliance of it will vitiate the
order of sentence. It is a not a mere irregularity,
but, affects the fundamental right of the accused
person, his personal liberty and opportunity to
represent himself before the Court, resulting into
serious failure of justice. Hearing the accused, on a
wrongly stated provision of law and later on
changing the same citing clerical error when the
said laws are different to each other, vitiates the
fundamental right of the accused and it is on the
exact footing of not hearing the accused on the
question of sentence and then passing the
sentence on him according to law.
24. The landmark judgment of the two-
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
Judge bench decision of Hon'ble Supreme Court in
Santa Singh Vs. State of Punjab, (1976) 4
SCC 190 laying down that-
"3....Moreover it was realised that
sentencing is an important stage in
the process of administration of
criminal justice as important as the
adjudication of guilt and it should
not be consigned to a subsidiary
position as if it were a matter of
not much consequence. It should
be a matter of some anxiety to the
court to impose an appropriate
punishment on the criminal and
sentencing should, therefore,
receive serious attention of the
court... The reason is that a proper
sentence is the amalgam of many
factors such as the nature of the
offence, the circumstances
extenuating or aggravating of the
offence, the prior criminal record,
if any, of the offender, the age of
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
the offender, the record of the
offender as to employment, the
background of the offender with
reference to education, home life,
sobriety and social adjustment, the
emotional and mental condition of
the offender, the prospects for the
rehabilitation of the offender, the
possibility of return of the offender
to a normal life in the community,
the possibility of treatment or
training of the offender, the
possibility that the sentence may
serve as a deterrent to crime by
the offender or by others and the
current community need, if any, for
such a deterrent in respect to the
particular type of offence. These
are factors which have to be taken
into account by the court in
deciding upon the appropriate
sentence, and, therefore, the
legislature felt that, for this
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
purpose, a separate stage
should be provided after
conviction when the court can
hear the accused in regard to
these factors bearing on
sentence and then pass proper
sentence on the accused.
Hence the new provision in
Section 235(2).
4. ............We are, therefore, of
the view that the hearing
contemplated by Section 235(2) is
not confined merely to hearing oral
submissions, 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. Of course,
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
care would have to be taken by
the court to see that this hearing
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."
(emphasis supplied)
25. Hon'ble Supreme Court in
Allauddin Mian Vs. State of Bihar, (1989) 3
SCC 5-
"10.... The requirement of hearing
the accused is intended to satisfy
the rule of natural justice. It is a
fundamental requirement of fair
play that the accused who was
hitherto concentrating on the
prosecution evidence on the
question of guilt should, on being
found guilty, be asked if he has
anything to say or any evidence to
tender on the question of
sentence. This is all the more
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
necessary since the courts are
generally required to make the
choice from a wide range of
discretion in the matter of
sentencing. To assist the court in
determining the correct sentence
to be imposed the legislature
introduced sub-section (2) to
Section 235. The said provision
therefore satisfies a dual purpose;
it satisfies the rule of natural
justice by according to the accused
an opportunity of being heard on
the question of sentence and at
the same time helps the court to
choose the sentence to be
awarded. Since the provision is
intended to give the accused an
opportunity to place before the
court all the relevant material
having a bearing on the question
of sentence there can be no doubt
that the provision is salutary and
must be strictly followed. It is
clearly mandatory and should not
be treated as a mere formality. Mr
Garg was, therefore, justified in
making a grievance that the trial
court actually treated it as a mere
formality as is evident from the
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
fact that it recorded the finding of
guilt on 31-3-1987, on the same
day before the accused could
absorb and overcome the shock of
conviction they were asked if they
had anything to say on the
question of sentence and
immediately thereafter the
decision imposing the death
penalty on the two accused was
pronounced. In a case of life or
death as stated earlier, the
presiding officer must show a high
degree of concern for the statutory
right of the accused and should
not treat it as a mere formality to
be crossed before making the
choice of sentence. If the choice is
made, as in this case, without
giving the accused an effective
and real opportunity to place his
antecedents, social and economic
background, mitigating and
extenuating circumstances, etc.,
before the court, the court's
decision on the sentence would be
vulnerable. We need hardly
mention that in many cases a
sentencing decision has far more
serious consequences on the
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
offender and his family members
than in the case of a purely
administrative decision; a fortiori,
therefore, the principle of fair play
must apply with greater vigor in
the case of the former than the
latter. An administrative decision
having civil consequences, if taken
without giving a hearing is
generally struck down as violation
of the rule of natural justice.
Likewise a sentencing decision
taken without following the
requirements of subsection (2) of
Section 235 of the Code in letter
and spirit would also meet a
similar fate and may have to be
replaced by an appropriate order.
The sentencing court must
approach the question seriously
and must endeavor to see that all
the relevant facts and
circumstances bearing on the
question of sentence are brought
on record. Only after giving due
weight to the mitigating as well as
the aggravating circumstances
placed before it, it must pronounce
the sentence. We think as a
general rule the trial courts should
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
after recording the conviction
adjourn the matter to a future date
and call upon both the prosecution
as well as the defence to place the
relevant material bearing on the
question of sentence before it and
thereafter pronounce the sentence
to be imposed on the offender."
26. In Muniappan Vs. State of Tamil
Nadu, (1983) 2 SCC 277, a two-judge bench of
the Hon'ble Supreme Court held that section
235(2) was not a formality which could be
dispensed with, but required consideration after
conviction was confirmed.-
"2.... The obligation to hear the
accused on the question of
sentence which is imposed by
Section 235(2) of the Criminal
Procedure Code is not discharged
by putting a formal question to the
accused as to what he has to say
on the question of sentence. The
judge must make a genuine effort
to elicit from the accused all
information which will eventually
bear on the question of sentence.
All admissible evidence is before
the judge but that evidence itself
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
often furnishes a clue to the
genesis of the crime and the
motivation of the criminal. It is the
bounden duty of the judge to cast
aside the formalities of the court
scene and approach the question
of sentence from a broad,
sociological point of view. The
occasion to apply the provisions of
Section 235(2) arises only after the
conviction is recorded. What then
remains is the question of
sentence in which not merely the
accused but the whole society has
a stake. Questions which the judge
can put to the accused under
Section 235(2) and the answers
which the accused makes to those
questions are beyond the narrow
constraints of the Evidence Act.
The court, while on the question of
sentence, is in an altogether
different domain in which facts and
factors which operate are of an
entirely different order than those
which come into play on the
question of conviction. The
Sessions Judge, in the instant case,
complied with the form and letter
of the obligation which Section
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
235(2) imposes, forgetting the
spirit and substance of that
obligation."
27. From the above provisions, one can
come to the conclusion that fulfillment of Section
235(2) of the Cr.P.C., is a vital part when the
accused is being convicted in a trial and if not
followed, the principle of natural justice, on which
the law of the land is based upon, is vitiated. Thus,
an effective hearing is only fulfilled after the trial is
commenced, the deposition of witnesses has been
recorded, the submissions of learned counsel for
both the parties are heard and, as if the case may
be, resulting into conviction of the accused,
opportunity shall be prescribed for hearing the
accused on the point of sentence. The effective
hearing is the basis of principles of natural justice
and it co-relates to Audi alteram partem, which
means that the other party shall also be heard. On
the point of effective hearing, if not done, the trial
cannot be said to have been done in a correct
manner and the order of sentence is liable to be
set aside on and should be heard afresh, otherwise,
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
the accused would be deprived of his lawful right.
The High Court has the authority and jurisdiction to
contemplate whether effective hearing in a trial on
the order of sentence has been done or not and if
the appellant does not take plea that the effective
hearing (on order of sentence) has not been done,
the said aspect cannot be gone into in the present
case, effective hearing of sentence has not been
done as the provision of Section 235(2) of the
Cr.P.C. has not been fulfilled. The learned trial Court
has cited a typographical error after petition was
filed by the prosecution stating that Sections have
been wrongly mentioned as '376D/34' in place of
'376/34' of the IPC and the counsel for the accused
(before the learned trial Court) has given no
objection to the said petition.
28. In earlier times, the law was based
on punishing as accused but in the modern times,
the approach of the court and justice is of
rehabilitation of the accused and the aim of the law
is to give them social and economic justice which is
necessarily to be weighed in favour of the weak
and exposed. Section 235 of the Cr.P.C. is a
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
provision, which is used as a tool.
29. It is surprising to note here that the
learned trial Court has awarded punishment under
Section 376D of the IPC and later changed it to
Section 376 citing clerical error. The minimum
punishment under the Section 376D of IPC is 20
years which may extend [to life]. The learned trial
Court must have taken into account, the minimum
punishment, i.e., 20 years and must not have
requested for a minimum punishment to be
awarded to the present appellant at the stage of
sentence in the trial, but if the sentence was under
Section 376 of the IPC, the minimum punishment
comes to seven years which may extend up to life.
If the minimum punishment under Section 376 of
the IPC is seven years, the convicted person in the
trial Court would have requested the trial Court to
award the minimum sentence, which is there in the
provisions. The trial Court made an apparent error
while passing the sentence of 20 years, without
considering that minimum punishment under
Section 376 of the IPC which shows that the
sentence was passed mechanically, keeping in
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
mind the provisions and punishment under Section
376D and not Section 376 of the IPC. It is a case
where the trial Court has passed a sentence
without effectively hearing the appellant (convict)
on the order of sentence.
30. The learned trial Court has awarded
the above said punishment without effectively
hearing the convict (appellant) and not fulfilling the
provision of Section 235(2) Cr.P.C. Before awarding
the said punishment, the convict (appellant) ought
to have been given opportunity of effective hearing
which is vital and fundamental to the trial. The
learned trial Court has awarded the said
punishment to the convict (appellant) under
section 376D of the Indian Penal Code, but the
provision was later changed to 376/34 of the Indian
Penal Code.
31. In view of the aforesaid facts and
circumstances of the present case, the present
appeal is partly allowed to the extent the order of
sentence is concerned. The order of sentence
dated 29.03.2023 and correction order dated
17.05.2023 are hereby set aside. The present
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
matter is remanded back to the concerned Trial
Court with a direction to pass appropriate order of
sentence under Section 376 of the Indian Penal
Code after giving opportunity of hearing to the
convict with regard to the question of sentence in
accordance with the provisions of Section 235(2) of
the Cr.P.C. The trial Court is further directed to pass
a fresh order of sentence within a period of sixty
days from the date of receipt of this judgment.
31.1. At this stage, it is clarified that we
have not examined the merits of the case of the
appellant/convict and the judgment of trial Court
with regard to conviction recorded under Section
376 of the Indian Penal Code and other provisions
of the Indian Penal Code, as stated in the said
order. Thus, we grant liberty to the appellant to
challenge the order dated 29.03.2023 as well as
correction order dated 17.05.2023 on its own
merits after the fresh order which may be passed
by the trial Court on the point of sentence. Thus, it
is further clarified that we have interfered with the
order of sentence passed by the learned trial Court
against the appellant/convict with regard to the
Patna High Court CR. APP (DB) No.526 of 2023 dt.08-08-2024
offence punishable under Section 376 of the Indian
Penal Code only.
32. The Office is directed to send the
Trial Court records to the concerned Court at the
earliest.
(Vipul M. Pancholi, J)
( Ramesh Chand Malviya, J)
Brajesh Kumar/-
Anand Kr/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 30.08.2024
Transmission Date 30.08.2024
