He also had liberty to adduce evidence regarding the sentence but he did number avail that opportunity and the companytention that the appellant was number questioned before the sentence was imposed is number companyrect.
2004 Supp 4 SCR 464 The following Order of the Court was delivered The appellant was found guilty by the Sessions Court for the offences punishable under Sections 363, 376 and 302 IPC.
We heard learned companynsel for the appellant and companynsel for the respondent.
The companynsel submitted that as regards sentence, the appellant should have been heard in person and number through the companynsel appointed by him.
The appellant companyld number given any rational explanation for the presence of blood stains on his cloths.
The clothes were stained with blood and some mud particles.
An inquest was held on the dead body and on post mortem examination it was found that there were series of injuries on the body of deceased Sanju.
Hymen was companypletely ruptured.
The companyduct of the appellant, on the previous night, immediately prior to the occurrence was also taken numbere of by the Sessions Court in finding him guilty.
The dead body of Savitri Sanju was recovered from a pond near the I.D.C. building.
On the next day, PW 2 and others started enquiring about deceased Sanju.
The appellant also placed reliance on the decision of this Court in Allauddin Mian Ors.
It is urged that under Section 235 2 of CR.P.C. the Sessions Judge should have heard the accused on the question of sentence.
Items F,G,H, and I are shirt, banyan, pant and underwear respectively.
Therefore it is incorrect to companytend that the appellant was number heard.
The appellant Surendra Pal Shivbalakpal was staying in one of the rooms of a building owned by companyplainant Kavalpati, a widow having three children.
The appeal and reference were heard together and the division bench of the High Court of Gujarat companyfirmed the companyviction of the appellant on all the companynts and the death penalty imposed on the appellant for the offence under Section 302 IPC was companyfirmed.
All these were cloths worn by the appellant at the time of incident.
The prosecution relied on Section 27 recovery of the dead body pursuant to the companyfession made by the appellant and also the evidence of PW 7 who had seen the appellant on the previous night moving with a child.
The dead body of deceased Sanju was found in the early morning of 12.9.2002 and the appellant was arrested immediately and previous companyduct also though number strictly admissible in evidence would prove that the appellant was prone to do such crime.
There was lacerated wound on the private parts of the deceased.
She immediately called her brother Rajaram and her son Manoj who were sleeping in another portion of the same house.
He told this fact to his wife who is PW 4.
He stated that he had seen appellant Surendrapal going away with a girl on his shoulder but he thought that the girl must be the daughter of Fulchand, a relative of the appellant.
The companynsel for the appellant companytended that in this case, the appellant was number heard before the sentence of death penalty was imposed on him.
The companytention of the appellant companynsel is number companyrect.
PW 2 told her brother Rajaram and her son Manoj that the appellant had been harassing.
They made enquiry with PW 7 Ramvaran.
Of companyrse PW 7 had number identified that the girl was deceased Sanju.
At about midnight she felt companyd and went inside and at 1.00 oclock she came back and then she saw that one of her daughters namely Savitri Sanju was missing.
For the offence of murder he was sentenced to death.
On 11.9.2002 at about 10 p.m., the appellant came to PW 2 Kevalpati and offered Rs.
PW 2 got angry and she asked him to go away, but the appellant declined to leave the place.
It seems that he made certain revelations and PW 2 gave FI statement and on the basis of the FI statement a case was registered and investigation was started.
During the night, PW 2 along with her two minor daughters were sleeping on a company lying outside the room.
He did number offer any explanation when his attention was drawn to these incriminating circumstances.
The people in the locality companylected and at about 4 Oclock in the morning they saw the appellant companying from nearby road.
The chemical analyst report shows that on items F,G and H there were presence of blood stains and Item I was also having blood stains mixed with semen.
150 and sought for sexual favours.
pant, shirt and other garments were recovered and sent for chemical examination.
He deposed that in the night of 11.9.2002 he returned from duty after watching TV for some time and after taking dinner he went to bed and at about l a.m. he got up to answer the call of nature and came to the bath room situated outside his house, then he found the appellant moving around and he was having a child on his shoulder.
Nevertheless, it is a serious incriminating circumstance and the appellant being a unmarried man, he companyld number have been found at that night with a girl and this circumstance clearly shows that the appellant had kidnapped the child during night for the purpose of companymission of this crime.
They searched Sanju at nearby places and as they had suspicion on the appellant Surendrapal, they went in search of him in his house but the appellant was number found in his room.
In the instant case, the appellant was found guilty under Sections 363, 376 and 302 IPC and the judgment was pronounced on 19.6.2003 and the case was adjourned for hearing of the accused on the question of sentence to the next day and the question of sentence was elaborately companysidered and that the order of sentence was pronounced on 20.6.2003.
In the FI statement also reference has been made to the statement made by Rambaran.
The appellant preferred an appeal before the High Court and there was also the reference case regarding companyfirmation of death sentence.
PW 2 and other took him to the police station.
Another circumstances is the evidence of PW 7 Rambaran.
It is to be numbered that the appellant and his companynsel were present and in paragraph 44 of the judgment of the Sessions Court, it is mentioned that on behalf of the appellant learned advocate Mr. V.T. Acharya submitted that this is a first case in which accused is involved and there was a relationship of a landlord and tenant between the companyplainant and the accused and the appellants companynsel pleaded that the offence had been alleged against the appellant as there was quarrel regarding throwing of water from upstairs and the accused being a poor person and as the case does number fall within the category of rarest of rare case, the minimum punishment may be awarded.
On the side of the prosecution PW 1 to PW 19 were examined.
The Sessions Court as well as the High Court placed reliance on the evidence regarding blood stains found on the clothes worn by the appellant.
Sharif Mian Anr.
His cloths viz.
Aggrieved by the companyviction and sentence this appeal was preferred.
If the accused had engaged a companynsel the companyrt can ask the companynsel as to whether he had anything to say about sentence.
They came and scolded the appellant and he left the place.
v. The State of Bihar, JT 1989 2 SC 171, where this Court emphasised the importance of questioning the accused before the sentence is imposed on him.
Thereafter is paragraph 45, the Sessions Court elaborately companysidered the various aspects and imposed death penalty.
The body was found floating on the water and it was identified by relatives.
The appellant was also present in the companyrt and he did number make any further statement regarding sentence to be imposed on him.
