Narpal Singh v. State of Haryana

901 NARPAL SINGH & OTHERS A _v._ STATE OF HARYANA _February_ 1, 1977 [P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.] B _Sentence-Rig/it_ _to_ _be_ _heard by the accused on the question_ _of_ _selllence_ _and the duty_ _of_ _the court to pass a sentence after cJtrviction-Code_ _of_ _Criminal_ _Procedure (Act_ 2 _of_ 1974), _1973-Section_ 235(2)-De _novo trial_ _1101_ _necessary_ _in_ _such cases_ _011_ _the question_ _of_ _convictions._ Appellants Nirpal Singh, Gurdev Singh and Jagmohan Singh were convicted under s. 302 I.P.C. and sentenced to death while the appellants Devinder Singh, and Maha Singh were convicted under s. 302 but sentenced to imprisonment C for life by the Sessions Judge. The High Court upheld the convictions as also the sentences while accepting the reference under s. 366 made by the Sessions Judge and dismissing the appeals by the accused. On appeal by special leave, the appellants contended _inter alia,_ that the ·sentence passed against them was bad as the Sessions Judge, after delivering the judgment of conviction has not given any opportunity to them of being heard on the question of sentence separately. D Dismissing the appeals of Devinder Singh irnd Maha Singh and partly allowing the appeals of the other three appellants, the Court maintained their convictions set aside the sentence of death passed on them and remitted their ca~es to the trial Court for passing sentences on them afresh under s. 235(2) of the Criminal Procedure Code. The Court HELD : (1) Though the commitment inquir.y was held under the Code of E Criminal Procedure, 1973, since the procedure under s. 235(2) has not been adopted by the Sessions Judge, the sentence of death passed on the a,ppellants, Narpa\ Singh, Gurdev Singh and Jagmohan Singh in the instant ca,se cannot be sustained. Since Devinder· Singh and Maha Singh have already been· given sentences of life imprisonment which is the minimum sentence that could be pa~sed under s. 302, remelting their cases to the Sessions Judge was not necessary. (902 F-G, 903 EJ _fjanta Singh_ _v._ _State_ _of_ _Punjab_ [1977] 1 S.C.R. 229, reiterated. F \ (2) When a case is remitted by this Court to the SeS!lions Court for giving a hearing on the question of sentence under s. 235(2) of the Code of Criminal Procedure 1973, there. would be fresh evidence and the principle that the Se~sions Judge may not act on evidence already recorded before his predecessor and must conduct _de_ _novo_ trial would not be violated. The ratio of _Pyare Lal's_ case [1962] 3 S.C.R. 328 cannot be applied or projected into the facts a,nd circumstances of the present case or to cases where the trial has ended in a G conviction but the matter has been remitted to the trial Court for hearing the ·case only on the question of sentence. [903 A-DJ _Pyare Lal_ v. _State_ _of Punjab_ [1962] 3 S.C.R. 328, distinguished. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 149 of 1976. Appeal by Special Leave from the Judgment and Order dated H 19-7-1975 of the Punjab & Haryana High Court in Criminal Appeal No. 1205 of 1974 and Murder Reference No. 60 of 1974. B ## c D E F G H 902 SUPREME COURT REPORTS [1977] 2 $.C.R~ _Frank Anthony, Harbans Singh_ and _Harjender Singh for_ Appellants Nos. 1, 2 and 4. _A._ _N. Mu/la,_ and _Harbans Singh_ for Appellants Nos. 3 and 5. _R._ _L._ _Kohli_ for the Respondent. The *Judgment of the Court was delivered by FAZAL Au, J.-Atfer having gone through the entire evidence on the record and the judgment of the courts below and after hearing counsel for the parties and for the reasons that we have alreaay given, we are fully satisfied and convinced that the prosecution case against the appellants has been proved beyond reasonable doubt and that the appellants were rightly convicted by the Sessions Judge anCl the High Court. This, however, does not dispose of the matter completely, because it appears that the commitment inquiry was held under the Code of Criminal Procedure, 1973 and the Sessions Judge after de\jvering the judgment of conviction has not given any opportunity to the accused of being heard on the question of sentence separately. In _Santa Singh_ v. _State_ _of_ _Punjab(')_ this Court has taken the view view that under the provisions of the Code of Criminal Procedure, 1973, it is incumbent on the Sessions Judge delivering a judgment of conviction to stay his hands and hear the accmed on the question of sentence and give him an opportunity to ·lead evidence which may also be allowed to be rebutted by the prosecution. This procedure has not been adopted by the learned Sessions Judge and, therefore, the sentences of death passed on the appellants Narpal Singh, Gurdev Singh and Jagmohan Singh cannot be sustained although the convictions recorded against them are confirined by us and will not be reopened under any circumstance whatsoever. Counsel for the State has drawn our attention to the fact that irr some cases the accused have raised the question that once the case is remitted _to_ the Sessions Judge, then the accused is entitled to claim a _de nova_ trial on the question of conviction also. In this connection, reliance was placed on _Pyare Lal_ v. _State_ _of_ _Pwzjab(_ _[2]_ _)._ In the first place, this case was based on an interpretation of ss. 251 to 259 of the Code of Crimina~ Procedure, 1898, and the reason why this Court held that the proceedings by a suc~ssor Judge cannot be started from the stage left out by his predecessor was that a Judge who had heard the whole of t)le evidence before had the advantage of watching the demeanour of the witnesses which would be lost if the successor Judge was to proceetl from the stage left by his predecessor. It is true that under s. 326 of the Code of Criminaj Proce tions of the Court # *Only pages 33 to 36 of the Judgment are reported as per direc (I) [1976] s.c.c. 190. (l) [1962] 3 S.C.R. 328. NARPAL SINGH _v._ HARYANA _(Fazal_ _Ali,_ _J.)_ 903 dure, 1973, there is ~ discretion given to the successor Magistrate t\) act on the evidence already recorded and not to hold a _de nova_ trial and no such provision is made in case of a trial by the Sessions Judge or a Special Judge. The ratio of _Pyare Lal's_ case (supra), however, is not applicable to the present case. Once the Judge who hears the evidence delivers ·a judgment of conviction, one part of the trial comes to an end. The second part of the trial is restricted only to the question of sentence and so far as that is concerned, when a case is remitted by us to the Sessions Court for giving a hearing on the question of sentence under s. 235(2) of the Code of Criminal Procedure, 1973, there would be fresh evidence and the principle that the Sessions Judge may not act on evidence already recorded before bis predecessor •. and must conduct a _de nova_ trial would not be violated. In these circumstances, therefore, the ratio of _Pyare Lal' s_ _case_ mentioned above cannot be applied or projected into the facts and circumstances of the present case or to cases where the trial has ended in a conviction but the matter has been remitted to the Trial Court for hearing the case only on,the question of sentence. A B ## c So far as the case of Devinder Singh and Maha Singh are cqncerned as they have already been given sentences of life imprisonIlilent and this is the minimum sentence that could be passed under D s. 302 I.P.C. it is not necessary to remit their cases to th~ Sessions Judge. The convictions and sentences of these two accused are, therefore, confirmed and their appeals are dismissed. As regards the appeals by the three other appellants, namely, Narpal Singh, Jagmohan Singh and Gurdev Singh, we confirm their convictions which would not be reopened under any circumstances, but set aside the sentence of death passed on them and remit their cases to the E Trial Court for passing sentences on them afresh after hearing the accused in the light of the observations made by 'Us and lo this extent only the appeals of the three appellants are allowed so far as their J>entences are concerned. S.R. _Appeals partly allowed._