AJAY PANDIT @ JAGDISH DAYABHAI PATEL & ANR.versusSTATE OF MAHARASHTRA

                         [2012] 10 S.C.R. 70

A     AJAY PANDIT @ JAGDISH DAYABHAI PATEL & ANR.
                              v.
                 STATE OF MAHARASHTRA
              (Criminal Appeal No. 864 of 2006)
                            JULY 17, 2012
B
        [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

          Penal Code, 1860 - ss. 419, 420, 302, 307, 397, 342
    and 328 - Cheating, Murder and attempt to murder - Two
C   separate incidents - Accused luring the victims to send them
    to America for better prospects - Extracting money from them
    - Instead of sending them to America, murdered one person
    in first incident and in the second incident murdered one and
    attempted to murder two - First case based on circumstantial
D   evidence - Eye-witnesses (victims) in the second incident -
    Conviction and life imprisonment by trial court - High Court
    confirming the conviction and enhancing the sentence to
    death - On appeal, held: Conviction justified - In the fist case,
    the witness proved the chain of links in the case - In the
E   second case also the evidence of victim eye-witness, other
    witnesses and documentary evidence have proved the
    prosecution case - However, the High Court enhanced the
    sentence to death without following the procedure u/s. 235(2)
    Cr. P. C. and without taking into consideration the relevant
F   factors while awarding death sentence - Therefore, death
    sentence set aside and matter remitted to High Court to
    decide the sentence by following s. 235(2) - Code of Criminal
    Procedure, 1973 - s. 235(2) - Sentence.
      The appellant-accused was prosecuted for two
G murders in two separate incidents. He used to lure the
  vulnerable into his trap for sending them to America for
  better prospects in life.

         The first incident relates to the murder of deceased
H                                  70
 AJAY PANDIT@ JAGDISH DAYABHAI PATEL v. STATE           71
              OF MAHARASHTRA
 'N' which took place in February 1994. Prosecution case      A
was that PW5 (sister of the deceased) and PW6 (brother-
 in-law of the deceased) were acquainted with the accused.
They wanted the accused to send the deceased to
America. Accused demanded Rs. 2,50,000/- for this.
Initially Rs. 1, 10,000/- was required to be paid. After      B
payment of the initial amount, the accused asked PW6 to
send the deceased to Bombay, Railway Station with
return ticket of the accused and asked for further amount
of Rs. 3500/- for medical expenses and for arranging visa.
PW6 reached Bombay with the deceased. PW6 leaving             c
the deceased in the company of the accused, left for his
home. The deceased did not reach home. The accused
informed that the deceased had already left for America.
In November, 1994, PW6 came to know through
newspaper reports that the accused was arrested for an
                                                              0
incident of attempt to murder and murder three persons.
PW6 went to the police. Police showed him photograph
of the unidentified person found in a hotel room in the
evening of 9.2.1994. According to police, the accused had
booked the hotel room on 8.2.1994. He left the hotel in the
evening keeping the room locked and did not return.           E
When the room was opened with duplicate key for
cleaning on 9.2.1994, dead body of deceased 'N' was
found.

    In the second incident case, the accused had three        F
persons in his net aspiring for better prospects in
America i.e. PW1, PW5 and the deceased 'J'. PW1 and
PW5 were husband and brother of the deceased
respectively. The accused called them to Bombay,
booked two rooms in his name for them in a hotel. The         G
accused received money from the victims for completing
other formalities. The accused then gave one capsule
and two tablets each to the three victims and asked them
to take it before medical checkup. After taking the
medicine the victims started feeling drowsy and sleeping      H
    72     SUPREME COURT REPORTS              [2012] 10 S.C.R.

A sensation. The deceased went to her room, when PW1
  and PW5 lied down, the accused administered an
  injection in the abdomen of PW1. In the midnight, when
  PW1 and PW5 regained consciousness, they alerted the
  hotel manager and found the deceased dead in her room.
B
       The trial court convicted the accused u/ss. 420 and
  302 IPC in the first case. In the second case, the trial court
  convicted the accused u/ss. 420, 302, 307, 397, 342 and
  328 IPC. In both the cases, life imprisonment was given
  for the offence u/s. 302 IPC. High Court confirmed the
C conviction of the accused, but enhanced the sentence
  from life imprisonment to death, in view of the ghastly
  manner, the accused murdered both the accused and
  poisoned PWs 1 and 5 in the second case. Hence the
  present appeal.
D
        Partly allowing the appeal and remitting the matter to
    High Court, to decide the question of sentence, the Court

       HELD: 1.1. The conviction awarded by the High
E Court, stands confirmed. In the first incident, PW 5 and
  PW 6 proved the chain and links from the stage of
  acquaintance with the accused till the stage of the
  deceased 'N' being seen in the custody or company of
  the accused, for the purpose of sending the deceased 'N'
  to Ameri~a. PW 6 was cross-examined at length but the
F defence could not demolish his evidence or the evidence
  of other witnesses including that of PW5. Evidence, in this
  case, proved beyond reasonable doubt that it was the
  accused who lured the deceased for sending him to
  America. Facts would clearly indicate that it was the
G accused who had extracted money giving false hopes.
  The deceased was also seen by PW 6 last, in the
  company of the accus~d. PW 6 had also made payment
  to the accused for medical expenses. (Paras 11 and 34)
  (82-F-H; 94-D-E]
H
 AJAY PANDIT@ JAGDISH DAYABHAI PATEL v. STATE          73
              OF MAHARASHTRA
     1.2. PW 1 to PW 4 were all attached to Hotel from the   A
room of which the dead body of the deceased was
found. PW 1 is an independent witness - Manager of the
Hotel. He narrated what had happened at his Hotel. PW
1 also saw the deceased in the company of the accused.
He saw the accused taking the deceased 'N in Room No.        B
103 and later coming back alone leaving the hotel without
handing over the key at the reception counter. Nothing
had been brought out in the cross-examination of these
witnesses to contradict what he had stated. [Para 12] [83-
A-C]                                                         C

    1.3. Sister of the accused was also examined in this
case as PW 14, she had narrated, in detail, the
professional and other details of the accused. The
evidence of the rest of the witnesses had also been
elaborately dealt with by the High Court. (Para 13] (83-C-   D
D]
     2.1. The modus operandi adopted by the accused in
the second incident was also almost the same as adopted
in the first case. The victim 'J'(deceased) was poisoned E
by the accused at Hotel room. PW 1 and PW 5 husband
and brother of the deceased respectively were direct
victims of the accused who fortunately survived. They
narrated, in detail, what transpired prior to the incident.
The details of the money paid to the accused for sending F
them to America had been elaborately stated in their oral
evidence. Nothing was brought out in their cross-
examination to discredit their version. There was no
reason for these witnesses to depose falsely against the
accused and they have no motive irrdoing so. Evidence G
of PW 1 and PW 5 are consistent and have not been
shaken at all by the defence. No doubt has been created
about the veracity of their testimony. They were the direct
victims and were also the eye-witnesses to the entire
transaction and nothing was brought out to discredit H
their evidence. [Para 14] (83-E-H; 84-A-C]
    74      SUPREME COURT REPORTS             [2012) 10 S.C.R.

A      2.2. PW 2, PW 4 and PW 14 were the staff members
  of the hotel. They had narrated, in detail, the manner in
  which the accused booked the room, paid the amount,
  took the three witnesses to both the rooms. The hotel
  witnesses identified the accused in the court as well as
B in the identification parade. The prosecution examined
  PW 8 panch witnesses before whom the accused
  voluntarily gave statement u/s. 27 of the Evidence Act
  which led to the discovery of huge cash amount,
  cheques, promissory notes and various articles like
c passports, rubber stamps etc. [Para 15] [84-C-E]
         2.3. In view of the oral evidence and the documents
    produced in this case, there is no reason to take a
    different view from that of the trial court and the High
    Court on conviction. [Pcira 16) [84-F]
D
       3.1. The High Court has only mechanically recorded
  what the accused said and no attempt was made to elicit
  any information or particulars from the accused or the
  prosecution which are relevant for awarding a proper
E sentence. The accused, of course, was informed by the
  court, of the nature of the show-cause-notice i.e. whether
  the life sentence awarded by the trial court be not
  enhanced to death penalty. No genuine effort was made
  by the court to elicit any information either from the
F accused or the prosecution as to whether any
  circumstance existed which might influence the court to
  avoid and not to award death sentence. Awarding death.
  sentence is an exception, not the rule, and only in rarest
  of rare cases, the court could award death sentence. The
G state of mind of a person awaiting death sentence and
  the state of mind of a person who has been awarded life
  sentence may not be the same mentally and
  psychologically. The court has got a duty and obligation
  to elicit relevant facts, even if the accused has kept totally
  silence in such situations. In the instant case, the High
~
     AJAY PANDIT@ JAGDISH DAYABHAI PATEL v. STATE            75
                  OF MAHARASHTRA

    Court has not addressed the issue in the correct               A
    perspective bearing in mind those relevant factors, while
    questioning the accused and, therefore, committed a
    gross error of procedure in not properly assimilating and
    understanding the purpose and object behind Section
    235(2) Cr.P.C. [Para 33] [93-F-H; 94-A-D]                      B

         3.2. In such circumstances, the death sentence
    awarded by the High Court is set aside and the matter is
    remitted to the High Court to follow Section 235(2) Cr.P.C.
    in accordance with the principles laid down. [Para 34] [94-
    D-E]                                                           C,

         Santa Singh v. State of Punjab (1976) 4 SCC 190: 1977
    (1) SCR 229;Rajesh Kumar v. State through Government of
    NCT of Delhi (2011) 13 SCC 706; Dagdu and Ors. v. State
    of Maharashtra (1977) 3 SCC 68: 1977 (3) SCR 636;              D
    Muniappan v. State of Tamil Nadu AIR 1981 SC 1220: 1981
    (3) SCR 270; Al/auddin Mian and Ors. v. State of Bihar (198)
    3 SCC 5: 1989 (2) SCR 498; Malkiat Singh v. State of Punjab
    (1991) 4 sec 341: 1991 (2) SCR 256 - relied on.
                                                                   E
         Bachan Singh v. State of Punjab (1980) 2 SCC 684 -
    referred to.

                        Case Law Reference:
           1977 (1) SCR 229      Relied on       Paras 21,27       F
        (2011) 13 sec 106        Relied on       Para 21
        (1980) 2 sec 684         Referred to     Para 22
        1977 (3) SCR 636         Relied on       Para 28
                                                                   G
        1981 (3) SCR 270         Relied on       Para 29
        1989 (2) SCR 498         Relied on       Para 30
        1991 (2) SCR 256         Relied on       Para 31
                                                                   H
~
    76       SUPREME COURT REPORTS                 [2012] 10 S.C.R.


A       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 864 of 2006.

      From the Judgment & Order dated 22.12.2005 of the High
  Court of Judicature at Bombay in Criminal Appeal No. 46 of
B 2000 and 789 of 2001.               •

         Sushil Karanjakar, K.N. Rai for the Appellants.

        Shankar Chillarge, AG.A., Asha Gopalan Nair for the
    Respondent.
c        The Judgment of the Court was delivered by

        K.S. RADHAKRISHNAN, J. 1. Death sentence has been
  awarded by the High Court of Bombay to Ajay Pandit @
  Jagdish Dayabhai Patel for double murder, in separate
D incidents, one for the murder of Nilesh Bhailal Patel and another
  for the murder ofJayashree. The Bombay High Court heard both
  the appeals - Criminal Appeal No. 46 of 2000 and Criminal
  Appeal No. 789 of 2001 together and rendered acommon
  judgment on 22nd December, 2005 confirming the order of
E conviction and enhancing the sentence of life imprisonment to
  death and ordered to be hanged till death against which this
  appeal has been preferred.

        2. The accused Ajay Pandit @ Jagdish Dayabhai Patel
F was a dentist by profession, known as Doctor Jagdish Patel
  at his Dhabasi Mohalla, District Kheda, Gujarat. He possesses
  a degree in Dental Hygienist and Dental Mechanic (D.H.D.M.)
  from the Gujarat University. Professional income was not
  sufficient for him to lead a lavish and luxurious life, he had other
  evil and demonic ideas in mind, to make quick and easy
G money. Self publicity was given of his make-belief contacts with
  the officials of the American Embassy by which he lured the
  vulnerable into his net, for sendlng them to America for better
  prospects in life. Several persons fell in his net like Nilesh and
  Jayashree and few others narrowly escaped from theclutches
H of death.
      AJAY PANDIT@ JAGDISH DAYABHAI PATEL v. STATE                77
         OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]

          3. We may first deal with the facts arising out of the        A
    judgment of the Bombay High Court in Criminal Appeal No. 46
    of 2000 in which the High Court, convicted the accused under
    Section 419 of the Indian Penal Code {for short 'the IPC) and
    sentenced to suffer R.I. for one year, unE.ter Section 420 of the
    IPC, R.I. for two years and fine, under Section 302 of the IPC      B
    life imprisonment with fine which was con~rted to death.

          4. Doctor Jagdish Patel - the accused had developed
     contacts with a family of one Dilip Manila! Patel and he used
     to visit their house at Bhayandar and Kanqivali since 1993. C
     During those visits, the accused used to boost that he had
     contacts with the officials of the American Embassy which
     kindled hopes in the minds of Dilip Patel and his family
     members and they decided to send Nilesh Bhailal Patel,
     cousin brother of Smt. Sarala Patel, wife of Dilip Patel, to
     America using the accused's alleged influence in the American D
     Embassy. A deal was struck and the accused demanded an
     amount of Rs.2,50,000/- for realization of their dream.
     Negotiations took place and the amount was reduced to
     Rs.1, 10,000/- as an initial payment, and the balance was to be
    paid after getting Nilesh employment in America. Dilip Patel E
    in October 1993 paid Rs.60,000/- ta the accused and the
    balance amount of Rs.50,000/- was paid by Mahendra Bhailal
    Patel, brother of the deceased - Nilesh !o the accused. Noticing
    that even after payment of money, the ~ccused was not fulfilling
    his promises, various meetings and phone calls took place F
    between the accused and the family of Nilesh. The accused
    reiterated his promise and later asked Dilip Patel to send
    Nilesh to Bombay Central Railway Station on 8.2.1994 with
    return ticket of the accused. The accused had also requested
    Dilip Patel a further amount of Rs.3500/- towards medical G
l
    expenses and also for arranging visa. Dilip Patel had assured
    the accused that he himself would be coming to Bombay with
    the required amount. As promised, Dilip Patel reached Bombay
    in the afternoon of 8.2.1994 and found the accused waiting at
    Bhulabhai Desai Road near the American Consulate. The H
    78       SUPREME COURT REPORTS.              [2012] 10 S.C.R.


A accused told Dilip Patel that the necessary papers had been
  submitted to the Consulate and asked to leave the place. Dilip
  Patel accordingly left the place and that was the last time, Dilip
  Patel saw Nilesh in the company of the accused that was around
  3 o'clock. In the evening of 8.2.1994 at about 5 o'clock, Dilip
B Patel received a phone call from the accused stating that the
  formalities had been completed and Nilesh would be coming
  home late in the night. Dilip Patel reached home but not Nilesh.
  Dilip Patel contacted the accused in the morning of 9.2.1994
  and he was informed by the accused that Nilesh was waiting
c upto 5.30PM on the previous day at Bombay Central Railway
  Station and that he would be back. Dilip Patel contacted the
  accused on several occasions to know whereabouts of Nilesh.
  Meanwhile an attempt was made by the accused through one
  Tikabhai to inform Dilip Patel that Nilesh had already left for
D America.

         5. Dilip Patel in November 1994 read in a local newspaper
    Sandhya Jansatta of a news item of an incident of attempt to
    murder and murder by administering some tablets to three
    persons by one Doctor by name Jagdish. Dilip Patel also read
E · in Mid Day Evening Daily dated 5.11.1994 about arrest of Dr.
    Jagdish Patel - the accused. On the basis of this information,
    Dilip Patel approached Gamdevi Police Station on 13.11.1994
    and narrated the entire story to the police. The statement was
    accordingly recorded and a photograph of the dead body of
F unidentified person found in Room No. 103 of the Hotel
    Aradhana at Nana Chowk in the evening of 9.2.1994 was also
    shown. In the evening of 8.2.1994, the accused had booked
    Room No. 103 on the first floor of that Hotel. The accused left
    the Hotel about 7.45PM in the evening of 8.2.1994 keeping the
G room locked and he did not return. On 9.2.1994, for ttie purpose
    of cleaning the room, it was opened with a duplit:ate key and
    the dead body of Nilesh was found. The dead body was sent
    for post-mortem but prior to that police completed other
    formalities, finger print experts also did their job, articles
H received were sent to the Forensic Laboratory, C.A. report was
  AJAY PANDIT@ JAGDISH DAYABHAI PATEL v. STATE               79
     OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]

obtained. Till August 1994, there was no trace of the suspect      A
and the investigation was continuing. In fact on 30.8.1994, case
was classified as true but not detected. The accused was,
however, arrested by Malabar Hill Police in C.R. No. 278/94
for murdering one woman - Jayashree and for the attempted
murder of two other persons at Hotel Kemps Corner. The             B
accused was identified by Dilip Patel, his wife Sarala Patel and
Mahendra Patel - brother of the deceased - Nilesh. This was
the brief background of the first case.

      6. We will now refer briefly to the facts of the second case C
 which came up before the Bombay High Court vide Criminal
 Appeal No. 789 of 2001. In the second case, Dr. Jagdish Patel
 had three persons in his net aspiring for better prospects in
 America. One Kaushikbhai Sanabhaiu Patel was leading a
 normal family life with his wife Jayashree at Labhvel, District D
 Anand, in the State of Gujarat. One Jagdish @ Harishbhai Patel
was the cousin brother of Jayashree. All the three were also
 dreaming better prospects in America. In fact, they had
contacted Joy Travel Agency for the said purpose in October
 1994. Kaushikbhai was told by the owner of Joy Travels that
the expenses of sending one person to America would be E
around Rs.7,23,000/-. Kaushikbhai paid Rs.20,000/- to the
travel agent for himself and Jagdish. While he was nurturing the
idea of going to America, the accused seized that opportunity
and got acquainted with Kaushikbhai and Jagdish. The accused
promised that he would realize their dreams for which he F
demanded a huge sum. Kaushikbhai expressed his inability to
the accused to pay such huge amount for a person to go to
America and consequently withdrew his request. The accused,
however, could prevail upon him by suggesting that he would
arrange a loan for him for the time being through one G
Ramchandra and he only need to purchase the tickets. On the
accused initiative, Ramchandra visited the house of
Kaushikbhai on 1.11.1994 and gave Rs.4,00,000/- to him, as
instructed by the accused, by way of loan.
                                                                   H
    80      SUPREME COURT REPORTS                [2012] 10 S.C.R.


A      7. Kaushikbhai, his wife - Jayashree and Jagdish then
  boarded the train to Bombay Central from Baroda Railway
  Station. Few of their relatives were present at the Railway
  Station, Baroda to see them off to Bombay. Accused reached
  Bombay Central Railway Station in the early hours of 2.11.1994
B and all the three along with the accused went to the Hotel Kemps
  Corner and two Rooms Nos. 202 and 206 were booked in the
  name of the accused. The accused informed them that all the
  requisite formalities had been completed and a Doctor, who
  was supposed to issue the medical certificate, would be
C coming at 4.30 pm on the same day to the hotel for medical
  check-up. The accused demanded money for completing other
  formalities, Rs.60,000/- was received from Kaushikbhai and
  Rs.40,000/- was received from Jagdish. A cheque drawn on
  Punjab National Bank, Anand for Rs.14,50,000/-, one
  promissory note of Rs.8,50,000/- and Rs.4,37,000/- were given
0
  to the accused by Kaushikbhai. Later, the accused gave one
  capsule and two tablets each to Kaushikbhai, Jayashree and
  Jagdish which they were asked to take before the medical
  check-up, which they did. Later, Jayashree went to Room No.
  202 and Kaushikbhai and Jagdish remained in Room No. 206.
E Kaushikbhai and Jagdish started feeling drowsiness and a
  sleeping sensation and they lied down on the bed. The accused
  then administered an injection on the abdomen of Kaushikbhai
  who went fast asleep. Jagdish by that time was already fast
  asleep and that was the last time, they saw the accused. In the
F mid-night, Kaushikbhai regained consciousness, he felt some
  foul play and alerted the Hotel Manager and they went to the
  room of Jayashree and got the room opened, but Jayashree
  was found dead. Intimation was given to Malabar Hill Police
  Station and complaint of Kaushikbhai was recorded. Police
G arrested the accused in November 1994.

         8. The trial court as well as the High Court had elaborately
    discussed the various steps taken by the investigating agency
    to unravel the truth and hence, we are not dealing with those
H   facts in detail. The prosecution in the case of death of Nilesh
 AJAY PANDIT@ JAGDISH DAYABHAI PATEL v. STATE                    81
    OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]

examined 17 witnesses. PW1 to PW4 are the employees of                 A
the hotel and PW5 and PW6 are the relatives of the deceased
- Nilesh. We have also gone through the evidence of other
witnesses critically and it is unnecessary to repeat what they
have said, since the trial court as well as the High Court had
elaborately discussed the evidence given by those witnesses.           B

     9. So far as the death of Nilesh is concerned, there was
no eye witness to the incident and the guilt of the accused could
be brought out by the prosecution only by circumstantial
evidence. The direct evidence of PW5 and PW6 preceded the              C
death of Nilesh. Therefore, it is necessary to deal with their
evidence. PW5 is the sister of the deceased - Nilesh by name
Sarala Dilip Patel. She had deposed that she knew the
accused since 1991. Further, she had deposed that in January
1993, the accused made a proposal about sending the
deceased - Nilesh to America for which he demanded                     D
Rs.3,50,000/-. The evidence clearly indicates what had
happened from 1993 till the death of Nilesh. She stated that
after Nilesh had gone to Bombay, his whereabouts were not
known. She had also deposed that on 27.3.1994, her husband
lodged a complaint at Kandivali Police Station since Nilesh was        E
found missing. Further, they had also noticed the news item
appeared in various newspapers about the arrest of the
accused in respect of some other case. On 13.11.1994, her
husband had again lodged a complaint as to missing of Nilesh.
She had also narrated the steps they had taken on coming to            F
know that her brother - Nilesh was missing. Evidence given by
this witness is consistent with the case of the prosecution and
there is no reason to disbelieve the version of this witness.

     10. PW6 Dilip Patel, the husband of PW5 - had deposed             G
that he knew the accused since 1991 and the accused had
come with the proposal for sending Nilesh to America stating
that he had good connections with the officials of the American
Embassy. Details of the amounts paid for the said purpose was
also given, in detail, in his deposition. The details of the various
                                                                       H
    82      SUPREME COURT REPORTS              [2012] 10 S.C.R.


A telephone calls he had with the accused before the incident as
  well as after the incident were minutely stated in his ornl
  evidence. PW6 had also deposed that he had also gone to
  Bombay with cash as directed by the accused. Further, he had
  also deposed that on 8.2.1994, Nilesh had left his house for
B Bombay and that PW6 had also gone to Bombay since the
  accused asked him to meet at Opera house at 11.30AM on
  8.2.1994. PW6, it was stated, saw the accused and Nilesh near
  the bus stop of Blobe Radio. The accused told him that at about
  3.00 pm on 8.2.1994 he had submitted the papers before the
c Embassy and asked PW6 to leave the place stating that
  Consulate would not like the presence of too many persons.
  PW 6, therefore, left the place leaving behind the accused and
  Nilesh. Nilesh did not return home, search was made and a
  complaint was lodged on 28.3.1994 at Kandivali Police Station.
  On 6.9.1994, notice was sent through advocate to Kandivali
0
  Police Station. PW 6 also stated that he had met accused at
  village Borsad Chaukadi and the accused gave evasive
  answers. Later, PW 6 came across a news item in Sandhya
  Jansatta wherein reference was made to one Dr. Jagdish who
  had committed murder and attempted to commit murder of few
E other persons. News item also appeared in other newspapers
  as well.

       11. PW 6 was cross-examined at length but the defence
  could not demolish his evidence or the evidence of other
F witnesses including that of PW5. Evidence, in this case, proved
  beyond reasonable doubt that it was the accused who lured
  Nilesh for sending him to America. Facts would clearly indicate
  that it was the accused who had extracted money giving false
  hopes. The deceased was also seen by PW 6 last, in the
G company of the accused. PW 6 had also made payment to the
  accused for medical expenses. PW 5 and PW 6, therefore,
  proved the chain and links from the stage of acquaintance with
  the accused till the stage of Nilesh being seen in the custody
  or company of the accused, for the purpose of sending Nilesh
H to America.
  AJAY PANDIT@ JAGDISH DAYABHAI PATEL v. STATE                83
     OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]

     12. The prosecution had examined PW 1 to PW 4 to prove        A
the subsequent events and the steps taken. PW 1 to PW 4 were
all attached to Hotel Aradhana or guest house of Aradhana. PW
1 is an independent witness - Manager of the H.otel Aradhana.
He narrated what had happened at his Hotel. PW 1 also saw
the deceased in the company of the accused. He saw the             B
accused taking Nilesh in Room No. 103 and later coming back
alone leaving the hotel without handing over the key at the
reception counter. Nothing had been brought out in the cross
examination of these witnesses to contradict what he had
s~~d.                                                              c
     13. Sister of the accused was also examined in this case
as PW 14, she had narrated, in detail, the professional and
other details of the -accused. The evidence of the rest of the
witnesses had also been elaborately dealt with by the High
Court. Learned counsel apoearing for the accused had also not      D
seriously attacked the findings and reasoning given by the trial
court as well as the High Court in ordering conviction and his
thrust was on the quantum of sentence awarded, and later death
penalty.
                                                                   E
      14. We have already indicated the modus operandi
 adopted by the accused in the second case was also almost
the same. Few facts of this case have already been dealt in
the earlier paragraphs bf this judgment and hence, we may
directly come to the evidence of the key witnesses in this case.   F
Jayashree - the victim was poisoned by the accused at Hotel
Kemps Corner.PW 1 and PW 5 were direct victims of the
accused who fortunately survived. PW 1 was the husband and
PW 5 was the brother of Jayashree - the deceased. PW 1 and
PW 5 had narrated, in detail, what transpired prior to the         G
incident. The details of the money paid to the accused for
sending them to America had been elaborately stated in their
oral evidence and the same had been extensively dealt with by
the trial court as well as the High Court, hence, we are not
repeating the same. They were cross-examined, at length, by
                                                                   H
    84      SUPREME COURT REPORTS                [2012] 10 S.C.R.


A the defence. Nothing was brought out to discredit their version.
  There was no reason for these witnesses to depose falsely
  against the accused and they have no motive in doing so.
  Evidence of PW 1 and PW 5 are consistent and have not been
  shaken at all by the defence. No doubt has been created about
B the veracity of their testimony. PW 1 and PW 5 were the direct
  victims and were also the eye witnesses to the entire
  transaction and we have critically gone through the evidence
  adduced by PW 1 and PW 5 and nothing was brought out to
  discredit their evidence.
c      15. The prosecution examined sixteen witnesses - PW 2,
  PW 4, PW 14 were the staff members of the hotel Kemps
  Corner - they had narrated, in detail, the manner in which the
  accused booked the room, paid the amount, took the three
  witnesses to both the rooms. The hotel witnesses identified the
D accused in the court as well as in the identification parade. The
  prosecution examined PW 8 panch witnesses before whom the
  accused voluntarily gave statement u/s 27 of the Evidence Act
  which led to the discovery of huge cash amount, cheques,
  promissory notes and various articles like passports, rubber
E stamps etc.

       16. PW 6 was a Doctor who examined PW 1 and PW 5
  and found they were under the influence of sedatives and in a
  drowsy condition. We have also gone through, critically, the oral
F evidence and the documents produced in this case and found
  no reason to take a different view from that of the trial court and
  the High Court on conviction. We have also gone through the
  statement under section 313 Cr.P.C. made by the accused in
  both the cases which was of total denial of the crime. The
  accused, a professional, wanted to make quick and easy
G money and in that process lured people giving false hopes of
  sending them to America utilizing his alleged contacts with the
  American Embassy. The accused, though educated, brought
  discredit to his profession and to the dentist community in
  general. Education and professional standing had no influence
H
  AJAY PANDIT@ JAGDISH DAYABHAI PATEL v. STATE                  85
     OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]

on the accused and his only motto was to make quick money             A
and for achieving the same, he would go any extent and the
Dentist turned killer gave no value to the human life. The Dentist
took away the life of two human beings as if he was uprooting
two teeth.
                                                                      B
     17. Nilesh - the deceased, victim in the first case was an
unmarried boy of 25 years and yet to become mature enough
to know the world around him. All the hopes dashed on the
eventful day when he was murdered in a brutal manner not only
by inflicting injuries by deadly weapon on vital parts of the body
but also injuries on the testis causing him immense suffering         C
and pain.

     18. Jayashree, the deceased - victim was administered
excessive tablets by the Dentist turned killer and Jayashree
died of that in the night of that fateful day. The medical evidence   D
clearly indicates that Kaushikbhai, Jayashree and Jagdish had
taken one capsule and two tablets. The accused had advised
them to take the tablets prior to medical check-up so that they
must get favorable medical certificates. Kaushikbhai and
Jagdish started feeling drowsiness. Kaushikbhai was about to          E
regain consciousness but the accused gave an injection on his
abdomen. Kaushikbhai tried to avoid the injection but could not
resist due to drowsiness and injection was administered due
to which he went fast asleep. Unfortunately, Jayashree
succumbed to the poison administered and died. The Bombay
                                                                      F
High Court noticing the ghastly manner in which the accused
had murdered Nilesh as well as Jayashree and poisoned PW
1 and PW 5, considered it as a rarest of rare case warranting
death sentence.

      19. The High Court heard the arguments of the advocate          G
for the accused as well as the prosecutor on the point as to
whether the High Court could enhance the sentence of the
accused from life to death. Having noticed that the High Court
has the power to enhance the sentence from life imprisonment
to death, the High Court issued a notice on 1.12.2005 to the          H
    86       SUPREME COURT REPORTS                (2012] 10 S.C.R.


A   accused to show cause why the sentence of life imprisonment
    be not enhanced to death sentence. The operative portion of
    the order reads as follows:

         "We have heard the arguments of learned advocate for the
         petitioner as well as learned APP for the State for quite
B        some time on two occasions. In exercise of suo-moto
         powers and on the basis of judgment of the Supreme
         Court, it will be necessary to hear the accused as to why
         his sentence should not be enhanced from life
         imprisonment to death. Therefore, the accused be
c        produced by the Kalyan District Prison Authorities before
         this Court on 12th December 2005.

         Learned counsel to inform the Jailer, Kalyan District Prison
         authorities that the matter is kept on 12th December
D        2005."

       20. The accused was produced before the Court on 12th
  December 2005 but the advocate representing the accused
  was absent. Consequently, the matter was adjourned to
  13.12.2005. On 13.12.2005, the accused as well as his
E advocate were present and the Court on 13.12.2005 recorded
  the following statement of the accused which reads as follows:

         "(Accused understands English. He gives the statement in
         English. We are recording the same in his own language.)
F        I am not involved in the case. The travel agent should also
         have been implicated in this case. I am not involved. I am
         not guilty. (Repeatedly the accused was informed by us
         about the nature of the show cause notice given. He made
         the aforesaid statement and he does not want to say any
G        more.

         Matter adjourned to 22nd December, 2005 at 3.00 for
         Judgment. Accused to be produced on that day."

         21. Mr. Sushil Karanjakar, learned advocate appearing for
 AJAY PANDIT @JAGDISH DAYABHAI PATEL v. STATE                 87
    OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]

the accused submitted that the High Court has not followed the      A
procedure laid down under Section 235(2) of the Code of
Criminal Procedure (for short 'the Cr.P.C.) before enhancing
the sentence of life imprisonment to death. Learned counsel
pointed out that having regard to the object and the setting in
which the new provision of Section 235(2) was inserted in the       B
1973 Code, there can be no doubt that it is one of the most
fundamental parts of the criminal procedure and non-
compliance thereof will ex facie vitiate the order. In support of
his contention, learned counsel placed reliance on the judgment
of this Court in Santa Singh v. State of Punjab; (1976) 4 SCC       C
190 and a recent judgment in Rajesh Kumar v. State through
Government of NCT of Delhi; (2011) 13 SCC 706.

     22. Mr. Shankar Chillarge, learned counsel appearing for
the State, submitted that in the facts and circumstances of this
case, the High Court was justified in according maximum             D
sentence of death penalty, since on facts, it was found to be a
rarest of rare case and the test laid down by this Court in
Bachan Singh v. State of Punjab; (1980) 2 SCC 684 has
been fully satisfied. Learned prosecutor submitted this is a case
of double murder and attempt to commit murder of two others         E
and the manner in which the same was executed was
gruesome. Further, it was pointed out that the procedure laid
down under Section 235(2) Cr.P.C. was fully complied with and
there is no reason to upset the conviction/ sentence awarded
by the High Court.                                                  F

     23. We heard the learned counsel on either side on this
point at length. The original file made available to this Court
did not contain the copy of show cause notice dated 1.12.2005
issued by the High Court as well as the full text of the order      G
passed by the High Court on 13.12.2005 recording the
statement of the accused. We passed an order on 11.04.2012
to produce the original files to examine whether the High Court
had followed the procedure laid down under Section 235(2)
Cr.P.C. Records were made available and we went through
                                                                    H
    88       SUPREME COURT REPORTS                [2012] 10 S.C.R.


A   those records with great care. We have also perused the full
    text of the show cause notice dated 1.12.2005 issued by the
    High Court and the statement recorded by the High Court under
    Section 235(2) Cr.P.C. after summoning the accused.

         24. We have to examine whether the High Court has
8
    properly appreciated the purpose and object of Section 235(2)
    Cr.P.C. and applied the same bearing in mind the fact that they
    are taking away the life of a human being.

         25. Section 235 Cr.P.C. in its entirety is extracted for
C   reference:

         "235. Judgment of acquittal or conviction -

         (1) After hearing arguments and points of law (if any}, the
         Judge shall give a judgment in the case.
D
         (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."
E
         The necessity of inserting sub-section (2) was highlighted
    by the Law Commission in its 41st Report which reads as
    follows:

         "It is now being increasingly recognized that a rational and
F        consistent sentencing policy requires the removal of
         several deficiencies in the present system. One such
         deficiency is the lack of comprehensive information as
         to the characteristics and background of the offender. The
         aims of sentencing become all the more so in the
G        absence of information on which the correctional process
         is to operate. The public as well as the courts themselves
         are in the dark about the judicial approach in this regard.
         We are of the view that the taking of evidence as to the
         circumstances relevant to sentencing should be
H                                                                       J
  AJAY PANDIT@ JAGDISH DAYABHAI PATEL v. STATE               89
     OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]

     encouraged, and both the prosecution and the accused          A
     should be allowed to co-operate in the process."

     The Law Commission in its Report had opined that the
taking of evidence as to the circumstances relevant to
sentencing should be encouraged in the process. The                8
Parliament, it is seen, has accepted the recommendation of the
Law Commission fully and has enacted sub-section (2).

      26. The scope of the abovementioned provision has come
up for consideration before the Apex Court on various
occasions. Reference to few of the judgments is apposite. The      C
courts are unanimous in their view that sub-section (2) of
Section 235 clearly states that the hearing has to be given to
the accused on the question of sentence, but the question is
what is the object and purpose of hearing and what are the
matters to be elicited from the accused. Of course, full           D
opportunity has to be given to produce adequate materials
before the Court and, if found, necessary court may also give
an opportunity to lead evidence. Evidence on what, the
evidence which has some relevance on the question of sentence
and not on conviction. But the further question to be examined     E
is whether, in the absence of adding any materials by the
accused, has the Court any duty to elicit any information from
whatever sources before awarding sentence, especially capital
punishment. Psychological trauma which a convict undergoes
on hearing that he would be awarded capital sentence, that is,     F
death, has to be borne in mind, by the court. Convict could be
a completely shattered person, may not be in his normal
senses, may be dumbfound, unable to speak anything. Can, in
such a situation, the court presume that he has nothing to
speak or mechanically record what he states, without making
                                                                   G
any conscious effort to elicit relevant information, which has
some bearing in awarding a proper and adequate sentence.
Awarding death sentence is always an exception, only in rarest
of rare cases.

    27. In Santa Singh (supra), this Court has extensively dealt   H
    90      SUPREME COURT REPORTS                [2012] 10 S.C.R.


A   with the nature and scope of Section 235(2) Cr.P.C. stating
    that such a provision was introduced in consonance with the
    modern trends in penology and sentencing procedures. The
    Court noticed today more than ever before, sentencing has
    become a delicate task, requiring an inter-disciplinary
B   approach and calling for skills and talents very much different
    from those ordinarily expected of lawyers. In Santa Singh,
    (supra) the Court found that the requirements of Section 235(2)
    were not complied with, inasmuch as no opportunity was given
    to the appellant, after recording his conviction, to produce
C   material and make submissions in regard to the sentence to
    be imposed on him. The Court noticed in that case the
    Sessions Court chose to inflict death sentence on the accused
    and the possibility could not be ruled out that if the accused
    had been given an opportunity to produce material and make
    submissions on the question of sentence, as contemplated by
D   Section 235(2), he might have been in a position to persuade
    the Sessions Court to impose a lesser penalty of life
    imprisonment. The Court, therefore, held the breach of the
    mandatory requirement of Section 235(2) could not, in the
    circumstances, be ignored as inconsequential and it can vitiate
E   the sentence of death imposed by the Sessions Court. The
    Court, therefore, allowed the appeal and set aside the
    sentence of death and remanded the case to the Sessions
     Court with a direction to pass appropriate sentence after
    giving an opportunity to the accused to be heard. Further, in
F    Santa Singh, the Court also held as follows:

         "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
G
         relating to various factors bearing on the quest!on of
         sentence and if they are contested by either side, then to
         produce evidence for the purpose of establishing the
         same."

H        28. The above issue again came up before this Court in
 AJAY PANDIT@ JAGDISH DAYABHAI PATEL v. STATE                 91
    OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
Dagdu & Ors. v. State of Maharashtra; (1977) 3 SCC 68;              A
wherein the three Judges Bench.referring to the judgment in
Santa Singh, held as follows:

    "The Court on convicting an accused must unquestionably
    hear him on the question of sentence. But if, for any
                                                                    8
    reason, it omits to do so and the accused makes a
    grievance of it in the higher court, it would be open to that
    court to remedy the breach by giving a hearing to the
    accused on the question of sentence."

     It further held as follows:                                    c
    " .... for a proper and effective implementation of the
    provision contained in Section 235(2), it is not always
    necessary to remand the matter to the court which has
    recorded the conviction .... Remand is an exception, not a
                                                                    0
    rule, and ought therefore to be avoided as far as possible
    in the interests of expeditious, though fair, disposal of
    cases"

    29. Again in Muniappan v. State of Tamil Nadu; AIR 1981
SC 1220; this Court held as follows:                                E

    "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         F
    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."

     30. Later, in Allauddin Mian & Ors. v. State of Bihar;
(1989) 3 sec 5, this Court also considered the effect of non-       G
compliance of Section 235(2) Cr.P.C. and held that the
provision is mandatory. The operative portion of the judgment
reads as follows:

    "The requirement of hearing the accused is intended to          H
    92       SUPREME COURT REPORTS                 [2012] 10 S.C.R.

A        satisfy the rule of natural justice. It is a fundamental
         requirement of fair play that the accused who was hitherto
         coneentrating 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
B        of sentence. This is all the more 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
c        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."
E
        31. Later, three Judges Bench in Malkiat Singh v. State
    of Punjab; (1991) 4 sec 341 indicated the necessity of
    adjourning the case to a future date after convicting the
    accused and held as follows:
F
          "On finding that the accused committed the charged
          offences, Section 235(2) of the Code empowers the Judge
          that he shall pass sentence on him according to law on
          hearing him. Hearing contemplated is not confined merely
          to oral hearing but also intended to afford an opportunity
G
         .to the prosecution as well as the accused to place before
          the Court facts and material relating to various factors on
          the question of sentence and if interested by either side,
          to have evidence adduced to show mitigating
          circumstances to impose a lesser sentence or aggravating
H
  AJAY PANDIT@ JAGDISH DAYABHAI PATEL v. STATE                 93
     OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]

     grounds to impose death penalty. Therefore, sufficient time     A
     must be given to the accused or the prosecution on the
     question of sentence, to show grounds on which the
     prosecution may plead or the accused may show that the
     maximum sentence of death may be the appropriate
     sentence or the minimum sentence of life imprisonment           B
     may be awarded, as the case may be."

     32. This Court in a recent judgment in Rajesh Kumar
(supra) examined at length the evaluation of sentencing policy
and the concept of mitigating circumstances in India relating        C
to the d~ath penalty. The meaning and content of the
expression "hearing the accused" under Section 235(2) and the
scope of Sections 354(3) and 465 Cr.P.C. were elaborately
considered. The Court held that the object of hearing under
Section 235(2) Cr.P.C. being intrinsically and inherently
connected with the sentencing procedure, the provisions of           D
Section 354(3) Cr.P.C. which calls for recording of special
reason for awarding death sentence, must be read conjointly.
The Court held that such special reasons can only be validly
recorded if an effective opportunity of hearing as contemplated
under Section 235(2) Cr.P.C. is genuinely extended and is            E
allowed to be exercised by the accused who stands convicted
and is awaiting the sentence.

      33. In our view, the principles laid down in the above cited
judgments squarely applies on the question of awarding of            F
sentence and we find from the records that the High Court has
only mechanically recorded what the accused has said and no
attempt has been made to eli.cit any information or particulars
from the accused or the prosecution which are relevant for
awarding a proper sentence. The accused, of course, was              G
informed by the Court of the nature of the show-cause-notice.
What was the nature of show cause notice? The nature of the
show-cause-notice was whether the life sentence awarded by
the trial court be not enhanced to death penalty. No genuine
effort has been made by the Court to elicit any information either   H
    94       SUPREME COURT REPORTS                 [2012] 10 S.C.R.


A from the accused or the prosecution as to whether any
  circumstance exists which might influence the Court to avoid
  and not to award death sentence. Awarding death sentence is
  an exception, not the rule, and only in rarest of rare cases, the
  Court could award death sentence. The state of mind of a
B person awaiting death sentence and the state of mind of a
  person who has been awarded life sentence may not be the
  same mentally and psychologically. The court has got a duty
  and obligation to elicit relevant facts even if the accused has
  kept totally silent in such situations. In the instant case, the High
c Court has not addressed the issue in the correct perspective
  bearing in mind those relevant factors, while questioning the
  accused and, therefore, committed a gross error of procedure
  in not properly assimilating and understanding the purpose and
  object behind Section 235(2) Cr.P.C.
D       34. In such circumstances, we are inclined to set aside the
  death sentence awarded by the High Court and remit the matter
  to the High Court to follow Section 235(2) Cr.P.C. in
  accordance with the principles laid down. The conviction
  awarded by the High Court, however, stands confirmed. The
E High Court is requested to pass fresh orders preferably within
  a period of six months from the date of the receipt of the copy
  of this order. The appeal is allowed to that extent.

    K.K.T.          Appeal partly allowed Matter remitted to High
                    Court to decide the question of sentence. -