Test Identification Parade & Dying Declaration.pptx

I.TEST IDENTIFICATION PARADE &
DYING DECLARATION
II. SENTENCING PROCEDURE
PRESENTED BY
ADVOCATE K. SRI BHARATHI

INTRODUCTION
The role of the witness is very important in establishing the identity of the accused. One of
the methods of establishing the identity is “Test Identification Parade” required Under
Section 9 of Indian Evidence Act. The idea of the parade is to test the veracity of the
witness on the question of his capability to identify from among several persons, an
unknown person whom the witness had seen in the context of an offence. The primary goal
is to verify and reinforce the witness's existing substantial evidence in court. The Test
cannot be considered if the witness is unable to name the accused and can only identify
him based on his outward appearance. The test identification parade is used to assess the
witness's honesty and ability to recognize unknown people. Test Identification Parades
are governed by Section 54–A of the Code of Criminal Procedure, 1973 and
Section 9 of the Indian Evidence Act, 1872.

• Test Identification Parade’s Purpose
• At the request of the investigative agency, test identification
parades are held. It is utilized to assess if the suspect or
accused of the horrible crime is innocent or guilty. Witnesses
who claim to have seen the accused at the time of the crime are
subjected to this test.
• It is important to conduct a Test Identification Parade so that the
witness can be confident in their suspicions about the inmate
who committed the crime and so that the investigating officer
can be confident that the person they saw is the one who has
been charged.

• Law governing the Test Identification Parade
• Section 9 of the Indian Evidence Act, 1872 and Section 54A of the Code of
Criminal Procedure, 1973 deal with the procedure and the legality of the
Test Identification Parade.
• Section 9 of the Evidence Act makes the test of identification of proper
accused and properties admissible and relevant facts in a court of Law, but
this act does not make it obligatory for the accused to present for the Test
Identification Parade by the investigating officer.
• Rather, Section 54A of CrPC makes an accused under an obligation to stand
for TIP and he cannot resist subjecting himself to the TIP on the ground
that he cannot be forced or coerced for the same.

• Procedure to Follow
• For Identification of accused by Parade
• As mentioned above Witness plays an important role in the Test
Identification Parade when the witness informs the Officer in Charge
that he can identify the accused or other persons connected with the
offense then the officer in charge will arrange for the Test Identification
Parade.
• Officer In-charge should ask the following questions to the witness to
create nearly the same environment in which the witness has seen the
accused and should mention it in the case diary. These questions are:

1.Accused description.
2.the extent of prevailing light at the time of the offence (daylight, moonlight, flashing of torches,
burning kerosene, electric or gas lights, etc).
3.details of opportunities of seeing the accused at the time of the offense; anything outstanding in
the features or conduct of the accused which impressed him (identifier).
4.distance from which he saw the accused.
5.the extent of time during which he saw the accused.
• Officer in charge or any other police officer should be expunged from the real Test Identification
Parade.
• The judicial Magistrate shall commence the Test Identification Parade.
• If Judicial Magistrate is not available then arrange for two or more respectable members of the
society. But these Officer in charge has to make sure that these people don’t have any link to the
accused or any witness.

• An identification parade should be commenced immediately after the
arrest of the accused without any delay.
• If a case has more than one accused and only one or few accused got
arrested then the identification parade of the arrested accused shall be
arranged don’t postpone the parade. And as the remaining accused got
arrested Identification parade should be arranged for them as well.
• Inform the accused person that he/she will be put up for the Identification
Parade.
• Witnesses or Witnesses should be kept out of the sight of the accused.
And make sure that witness and people standing for the parade has no
mode of any communication or signals.
• Accused should be mingled with the different look-alike in the ratio of 1:5
or 1:10 and they all should stand in a line.
• In the case of many witnesses, they should be call one by one and asked
to point out the accused if any.

• There should be a complete record of the proceeding even the mistake committed
by the witness or the witnesses in identifying the accused.
• Care should be taken that the two-witness won’t mingle with each other.
Especially if identification is already done by one witness and another witness is
still yet to go for identification. This will beat the whole purpose of the
Identification Parade.
• If officials doubt that witnesses had talked to each other then they have to
reshuffle the whole parade and the accused is made to take different positions.
• If the accused has any objection while the parade it should be well recorded.
• After the Test Identification Parade is over a duly sign certificate must be given by
the Magistrate who has conducted the Parade.
• Because identification is done in jail jailor should be informed about the
Identification Parade on the admission of the suspect.
• And clear instruction should be given to the jailor to not change the appearance of
the admitted accused or his clothes before the identification parade.

• If the witness is injured then the officer should take written permission
from the concerned medical authority before bringing the witness for the
Test Identification Parade to identify the assailant.
• If permission is given by the medical authority, then the officer should
arrange the transport of the witness immediately.
• If the witness is not fit and cannot be taken to the nearest court, police
station, or jail then the Identification Parade can be organized on the
premises of the hospital.
• If the witness is declared unfit to be present at the Identification Parade,
then the Officer In-charge should wait until the medical authority gives
the proper certificate that the witness is fit for the identification parade.
• And if the witness can’t attain the parade and identify his assailant
because he is unwell then the officer in charge should submit the evidence
which suffices the reason why the parade can’t be held.

• Identification of accused by Photograph
• A witness can be asked to identify the accused from the photograph when the
accused is not in custody.
• Every police station has a photographic record of the history sheeters. These
photographs can be shown to the witness for identification.
• A bunch of photographs should be shown to the witness among which there is the
real photograph of the accused. And the witness should be asked to identify the
accused from among these photographs.
• It should also be ensured that the photograph of the accused does not become
public through media or some other channels.
• But after the accused is arrested regular identification parade should also be held.

• Test Identification of the Property
• In criminal cases sometimes identification of the object used in the crime becomes
necessary, for this purpose Identification of Property is done.
• When a witness claim that he can identify the properties connected with the case
under investigation Police Officer In charge of the case should ask the following
questions:
1.Description of the property.
2.If it has any unique identification mark.
3.If the witness has seen this property earlier under any circumstances.
4.If the witness has handled the property earlier.
5.Or any other relevant circumstances.

•Process after Test Identification Parade is finished
• After the Identification Parade of person or property is over it should be
verified and ensured by the investigation officer that the proceeding of
the parade matches the details recorded by him/her in the case diary.
• The Investigating Officer should remember that the Magistrate who
recorded the Identification Parade of the accused person is cited as a
witness in the memo of evidence to speak about the conduct of the
Identification Parade and to mark the report of the parade.

• Evidential Value of Test Identification Parade
• Identification of the accused by the witness in the Test Identification Parade is a
shred of primary evidence but not substantive evidence it is used to support the
identification of the accused by the witness in a court of law. On the other hand, if
the witness identifies the accused in the court of the law, then it is substantive
evidence.
• Interestingly if the Test Identification Parade is not held earlier and the witness
identifies the accused for the first time in the court of law then the Identification
Parade is no longer required if the court found it trustworthy.
• The general rule is that the witness identifying the accused in the court alone is
not the basis of the conviction of the accused unless it is ratified by the previous
Test Identification Parade. But there are some exceptions to this rule.

•Exception for Test Identification Parade
• Supreme Court in the case of State of H.P. v. Prem Chand , 2002 (10) SCC 528
held that Test Identification Parade is not necessary when the witness already
knew the accused and identify the accused in the court of law.
• Supreme Court in the case of State of A.P. v. v. K. Venkata Reddy 1976 AIR 2207,
1976 SCR (3) 929 held that the testimony of a witness in the court of law is the
substantive testimony and identification of an accused in the Test Identification
Parade is only the confirmatory of the testimony made before the court.
• Supreme Court in the case of Dana Yadav V. State of Bihar , 2002 (7) SCC 295
upheld its decision and again made it clear that the sole purpose of TIP is to
lend corroboration to the court identification of the accused.

Evidence Of TIP Inadmissible If Suspects Were Shown To
Witnesses Before Identification : Gireesan Nair vs State
of Kerala | 2023 (1) SCC 180
Threefold object of conducting TIP - The object of conducting a TIP is threefold.
First, to enable the witnesses to satisfy themselves that the accused whom they
suspect is really the one who was seen by them in connection with the crime. Second,
to satisfy the investigating authorities that the suspect is the real person whom the
witnesses had seen in connection with the said occurrence. Third, to test the witnesses'
memory based on first impression and enable the prosecution to decide whether all or
any of them could be cited as eyewitnesses to the crime. (Para 25)

Not a substantive piece of evidence - TIPs belong to the stage of investigation by
the police. It assures that investigation is proceeding in the right direction. It is a rule of
prudence which is required to be followed in cases where the accused is not known to
the witness or the complainant. The evidence of a TIP is admissible under Section 9 of
the Indian Evidence Act. However, it is not a substantive piece of evidence. Instead, it
is used to corroborate the evidence given by witnesses before a court of law at the
time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as
trustworthy evidence on which the conviction of an accused can be sustained. (Para
26)

• TIP to be held without avoidable and unreasonable delay after the arrest of the
accused. - It is a matter of great importance both for the investigating agency and for
the accused and a fortiori for the proper administration of justice that a TIP is held
without avoidable and unreasonable delay after the arrest of the accused. This
becomes necessary to eliminate the possibility of the accused being shown to the
witnesses before the test identification parade. This is a very common plea of the
accused, and therefore, the prosecution has to be cautious to ensure that there is no
scope for making such an allegation. If, however, circumstances are beyond control and
there is some delay, it cannot be said to be fatal to the prosecution. But reasons should
be given as to why there was a delay. (Para 27)

• TIP after accused is shown to witnesses - In cases where the witnesses have had ample
opportunity to see the accused before the identification parade is held, it may adversely affect
the trial. It is the duty of the prosecution to establish before the court that right from the day of
arrest, the accused was kept "baparda" to rule out the possibility of their face being seen while
in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in
any form, i.e., physically, through photographs or via media (newspapers, television etc…), the
evidence of the TIP is not admissible as a valid piece of evidence
• If identification in the TIP has taken place after the accused is shown to the witnesses, then not
only is the evidence of TIP inadmissible, even an identification in a court during trial is
meaningless (Shaikh Umar Ahmed Shaikh and Anr. v. State of Maharashtra ). Even a TIP
conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code
of Criminal Procedure, 1973 .

• Healthy ratio between suspects and nonsuspects during a TIP - It is significant to
maintain a healthy ratio between suspects and nonsuspects during a TIP. If rules to
that effect are provided in Prison Manuals or if an appropriate authority has issued
guidelines regarding the ratio to be maintained, then such rules/guidelines shall be
followed. The officer conducting the TIP is under a compelling obligation to mandatorily
maintain the prescribed ratio. While conducting a TIP, it is a sine qua non that the non-
suspects should be of the same agegroup and should also have similar physical
features (size, weight, color, beard, scars, marks, bodily injuries etc.) to that of the
suspects. The concerned officer overseeing the TIP should also record such physical
features before commencing the TIP proceeding. This gives credibility to the TIP and
ensures that the TIP is not just an empty formality.

• Prosecution to prove that a TIP was conducted in a fair manner - It is for the prosecution to
prove that a TIP was conducted in a fair manner and that all necessary measures and
precautions were taken before conducting the TIP. Thus, the burden is not on the defence.
Instead, it is on the prosecution.
• Reappreciating the evidence on record, the bench observed that in this case the witnesses had
the opportunity of seeing the accused before the conduct of the TIP. As the only evidence for
convicting the appellants is the evidence of the eyewitnesses in the TIP, and when the TIP is
vitiated, the conviction cannot be upheld, the court said. While allowing the appeal, the court
said :
• We are of the opinion that the conduct of the TIP, coupled with the hovering presence of the
police during the conduct of the TIP vitiated the entire process

Test Identification Parade Not Violative Of Article 20(3) Of
Constitution ; Accused Cannot Refuse To Join TIP :
Supreme Court - Mukesh Singh vs State (NCT of Delhi) -
2023 INSC 765 – 2023 SCC Online SC 1061
• The Supreme Court observed that the conduct of Test Identification Parade is not violative of Article
20(3) of the Constitution of India.
• An accused cannot resist subjecting himself to the TIP on the ground that he cannot be forced or
coerced for the same, the bench of Justices MM Sundresh and JB Pardiwala observed.
• The bench made these observations on TIP while dismissing an appeal against concurrent murder
conviction. One of the issues that arose in the appeal was whether an accused decline to participate in
the TIP that the investigating officer may propose to hold in the course of investigation on the ground
that no person accused of any offence shall be compelled to be a witness against himself?

• The court noted that Section 54A of the Code of Criminal Procedure provides for the identification
of the arrested person where it is considered necessary for the purpose of investigation by the
officer-incharge of a police station. The said Section empowers the court, on the request of the
officer-in-charge of a police station, to direct for placing the accused at test identification parade
for identification by any person or persons in such manner as the court may deem fit. Referring to
his provision, the bench observed:
• "We are of the view that after the introduction of Section 54A in the CrPC referred to above, an
accused is under an obligation to stand for identification parade. An accused cannot resist
subjecting himself to the TIP on the ground that he cannot be forced or coerced for the same. If
the coercion is sought to be imposed in getting from an accused evidence which cannot be
procured save through positive volitional act on his part, the constitutional 38 guarantee as
enshrined under Article 20(3) of the Constitution will step in to protect him. However, if that
evidence can be procured without any positive volitional evidentiary act on the part of the
accused, Article 20(3) of the Constitution will have no application.

• The accused while subjecting himself to the TIP does not produce any evidence or
perform any evidentiary act. As explained very succinctly by the learned Judges of the
Calcutta High Court as above, it may be a positive act and even a volitional act, but
only to a limited extent, when the accused is brought to the place where the TIP is to
be held. t is certainly not his evidentiary act. The accused concerned may have a
legitimate ground to resist facing the TIP saying that the witnesses had a chance to see
him either at the police station or in the Court, as the case may be, however, on such
ground alone he cannot refuse to face the TIP. It is always open for the accused to
raise any legal ground available to him relating to the legitimacy of the TIP or the
evidentiary value of the same in the course of the trial. However, the accused cannot
decline or refuse to join the TIP."

• "In a case where an accused himself refused to participate in the TIP, it is not open to
him to contend that the statement of the eye witnesses made for the first time in Court,
wherein they specifically point towards him as a person who had taken part in the
commission of the crime, should not be relied upon. Such a plea is available provided
the prosecution is itself responsible for not holding a TIP. However, in a case where
the accused himself declines to participate in a TIP, the prosecution has no option but
to proceed in a normal manner like all other cases and rely upon the testimony of the
witnesses, which is recorded in Court during the course of the trial of the case"

Subhash Chander Versus The State of Punjab
Amrik Singh Versus The State of Punjab – 2022
(9) SCC 402
• When no TIP was conducted the first version of the complainant reflected in the FIR would play
an important role - It is required to be considered whether in the FIR and/or in the first version the
eyewitness either disclosed the identity and/or description of the accused on the basis of which
he can recollect at the time of deposition and identify the accused for the first time in the Court
Room - It would not be safe and/or prudent to convict the accused solely on the basis of their
identification for the first time in the Court. (Para 6.2 - 6.7)

Sanctity Of Test Identification Parade Doubtful If
Accused Are Already Shown To Witnesses In Police
Station : Supreme Court - Kamal v State(NCT) of Delhi -
2023 INSC 678 – 2023 SCC Online SC 933
• If the accused are already shown to the witnesses in the Police Station, then the
sanctity ofTIP before the court is doubtful. (Para 13)

Test Identification Parade Only Rule Of Prudence, Its Absence
Does Not Necessarily Vitiate Identification Of Accused In Court:
Kerala High Court - Sabu @ Eetty Sabu v State of Kerala - 2023
SCC Online Ker 1166
• “The object of a test identification parade is to test and ascertain the trustworthiness of the
evidence regarding the identification of the accused. Test identification parade is only a rule of
prudence. It is intended to be a measure of corroboration of the identification of the accused by
the witnesses in court, especially when the accused are strangers. However, if the ocular
evidence and the identification of the accused by the witnesses in court are impressive, nothing
restricts the court from relying upon the said identification, as recognising the accused in court is
the substantive evidence, while test identification parade is not an evidence of that character”

Police Presence During Test Identification Makes Statements By Identifiers
Fall Within The Ban Of Section 162 CrPC: Supreme Court - Chunthuram vs.
State of Chhattisgarh – 2020 (10) SCC 733
• "The infirmities in the conduct of the Test Identification Parade would next bear scrutiny. The major
flaw in the exercise here was the presence of the police during the exercise. When the
identifications are held in police presence, the resultant communications tantamount to statements
made by the identifiers to a police officer in course of investigation and they fall within the ban of
section 162 of the Code.“
• The statements of witnesses recorded by police under section 162 Crpc during investigation
cannot be used for seeking corroboration or assurance for the testimony of a witness in court.
• The Court also said that while the pahchan patra of the TIP mentions that three lungis were
presented, the related witness was shown only one lungi for identification as per the own
statement of the witness Filim Sai. Such infirmities would therefore, render the TIP unworthy of
acceptance, for supporting the prosecution, the bench added.
•

Testimony Of Witness Who Identified Accused In Court Cannot Be
Discarded Merely Because TIP Was Not Conducted: Supreme
Court - Jayan vs. State of Kerala 2021 (20) SCC 38
"The question of holding T.I Parade arises when the accused is not known to the witness
earlier. The identification by a witness of the accused in the Court who has for the first
time seen the accused in the incident of offence is a weak piece of evidence especially
when there is a large time gap between the date of the incident and the date of recording
of his evidence. In such a case, T.I Parade may make the identification of the accused by
the witness before the Court trustworthy. However, the absence of T.I Parade may not be
ipso facto sufficient to discard the testimony of a witness who has identified the accused
in the Court. In a given case, there may be otherwise sufficient corroboration to the
testimony of the witness. In some cases, the Court may be impressed with testimony of
the prosecution witnesses which is of a sterling quality. In such cases, the testimony of
such a witness can be believed.

There Cannot Be Repeated Test Identification Parades Till
Accused Is Identified: Supreme Court - Umesh Chandra vs. State
of Uttarakhand ; 2021 (17) SCC 616
"A test identification parade under Section 9 of the Evidence Act is not substantive
evidence in a criminal prosecution but is only corroborative evidence. The purpose of
holding a test identification parade during the stage of investigation is only to ensure
that the investigating agency prima facie was proceeding in the right direction where
the accused may be unknown or there was a fleeting glance of the accused. Mere
identification in the test identification parade therefore cannot form the substantive
basis 3 for conviction unless there are other facts and circumstances corroborating the
identification. But more important than that, the test identification parade being a part of
the investigation, has to be proved by the prosecution as having been held in
accordance with law.", the court said.

• The court added that the onus lies on the prosecution to establish that the TIP was held in
accordance with law. It is only after the prosecution prima facie establishes a valid TIP having
been held, the question of considering any objection to the same arises. "If the prosecution
has failed to establish that a TIP was properly held by examining the witnesses to the same,
there is nothing for the accused to disprove.", it said.
• "There cannot be repeated TIPs till such time that the prosecution is successful in obtaining
identification of the accused. We find it extremely disturbing that both the Trial Court and the
High Court did not go into this aspect at all to satisfy themselves if any TIP had been proved
to have been held at all and that too in accordance with the law.", the bench observed while
acquitting the accused.

Finding Of Guilt Cannot Be Based Purely On Refusal To Undergo
Identification Parade: Rajesh @ Sarkari vs. State of Haryana 2021
(1) SCC 118
In any event, as we have noticed, the identification in the course of a TIP is intended to
lend assurance to the identity of the accused. The finding of guilt cannot be based purely
on the refusal of the accused to undergo an identification parade. In the present case, we
have already indicated the presence of the alleged eyewitnesses PW4 and PW5 at the
scene of the occurrence is seriously in doubt. The ballistics evidence connecting the
empty cartridges and the bullets recovered from the body of the deceased with an alleged
weapon of offence is contradictory and suffers from serious infirmities. Hence, in this
backdrop, a refusal to undergo a TIP assumes secondary importance, if at all, and cannot
survive independently in the absence of it being a substantive piece of evidence."

Not Prudent To Convict An Accused Solely On Basis Of
Identification For The First Time In Court Without Test
Identification Parade: Amrik Singh vs State of Punjab | 2022 (9)
SCC 402
• "Thus, the conviction of the accused in the present case is solely on the identification of the accused by PW1 in
the court room. Prior thereto no TIP has been conducted by the Investigating Agency", the court noted - When
no TIP has been conducted, does the FIR or the version of the eyewitnesses disclose the identity of the
accused, the court explained.
• "Nothing has been mentioned in his first statement that he had seen the accused earlier and that he will be able
to identify the accused. The aforesaid was not disclosed in the FIR. Even in the cross examination as admitted
by PW1 he did not disclose any description of the accused.“
• Therefore, based on the above facts, the court was of the view that conducting TIP was necessary. Since, it
was not conducted, it is not safe to convict the accused solely on their identification by PW1 for the first time in
the Court. Referring to the Malkhansingh and Ors. Vs. State of Madhya Pradesh case, the court said that the
weightage that is to be attached to the evidence of identification in court, which is not preceded by a test
identification parade, is a matter for the courts of fact to examine.

FIR Is A Public Document U/S74 Evidence Act ; Injured Person's
Statement Recorded As FIR Can Be Treated As Dying Declaration
:Harendra Rai vs State of Bihar | 2023 INSC 738 – 2023 SCC Online
SC 1023
• “In this respect various earlier pronouncements of this Court have clarified the
position of law that the statement by an injured person recorded as FIR can be
treated as a dying declaration and such a statement is admissible under Section 32 of
the Indian Evidence Act. It was also held that the dying declaration must not cover
the whole incident or narrate the case history. Corroboration is not necessary for this
situation; a dying declaration can be the sole basis for conviction“
• Statement by an injured person which was later converted into an FIR, is admissible
in evidence and is to be read as a dying declaration or his last statement. (Para 114
(a))

Conviction Can Be Solely Based On Dying Declaration If It
Inspires Confidence: NAEEM VERSUS STATE OF UTTAR
PRADESH, 2024 INSC 169 – 2024 SCC Online SC 237
• “The Court is required to satisfy itself that the deceased was in a fit state of mind at the
time of making the statement and that it was not the result of tutoring, prompting or
imagination. It has further been held that, where the Court is satisfied about the dying
declaration being true and voluntary, it can base its conviction without any further
corroboration. The Court has observed that if after careful scrutiny, the court is satisfied
that it is true and free from any effort to induce the deceased to make a false statement
and if it is coherent and consistent, there shall be no legal impediment to make it the
basis of conviction, even if there is no corroboration.”,

Examination Of Person Who Recorded Dying Declaration
Essential:Manjunath v. State of Karnataka – 2023 INSC 978
- 2023 SCC Online SC 1421
• The Supreme Court recently laid down all the questions to be asked, the considerations to be kept
in mind while deciding the weightage to be awarded to a dying declaration. The Court recognized
the inherent value of a dying declaration but found several glaring issues that cast doubt on the
reliability of the declaration used as evidence in this particular case.
• It observed “In the case at hand, the court held that the dying declaration, although undoubtedly a
substantive piece of evidence upon which reliance can be placed, in the present facts is rendered
nugatory as the person who took down such declaration was not examined, nor did the police
officer (PW19) endorse the said document with details of who took down the declaration. It is also
not clear as to in front of which of the relatives of the deceased was the same was taken down.”

PRINCIPLES REGARDING DYING
DECLARATIONS
• Circumstances disclosed in the dying declaration must have a proximate
relation to the actual occurrence
• If a dying declaration inspires confidence, it can form the basis of conviction
even without corroborative evidence
• If a dying declaration inspires confidence, it can form the basis of conviction
even without corroborative evidence
• Court Must Ensure Deceased's Fit State of Mind for Dying Declarations
• If there were witnesses who were present during the statement to prove that
the deceased was indeed in a fit state of mind, their statements would
prevail over medical evidence.

• The absence of a doctor's certificate regarding the "fit state of mind" of the declarant
would not make the dying declaration inadmissible.
• In case of multiple dying declarations-Reliability and not plurality determine the
evidentiary value.
• The presence of a magistrate is not a necessity but only a rule of prudence
• Dying declaration not to be discarded only due to brevity
• Examination of the person who reduced dying declaration into writing is essential
• Where the original recorded dying declaration is lost or unavailable, the prosecution is
entitled to provide secondary evidence.
• A dying declaration must be free from tutoring, prompting, or imagination.

Circumstances disclosed in the dying declaration
must have a proximate relation to the actual
occurrence
• The Court began by reaffirming the principle 'nemo moriturus praesumitur mentire,' as
highlighted by a 5-judge bench in Laxman v. State of Maharashtra (2002) 6 SCC 710 that
when a person is at the point of death, their statements are considered truthful due to the
solemnity and lack of motive for falsehood.
• It added “It is not as broad as the analogous use in 'circumstantial evidence' which
includes evidence of all relevant facts. It is on the other hand narrower than 'res gestae'.
Circumstances must have some proximate relation to the actual occurrence.”
• Furthermore, the judgment cited the case of Sharad Birdhichand Sarda v. State of
Maharashtra (1984) 4 SCC 116 which stressed that the test of proximity cannot be
rigidly applied across all cases. It was of the view that a broader interpretation of Section
32 is designed to account for the diverse nature and character of Indian society, aiming
to prevent injustice.

If a dying declaration inspires confidence, it can
form the basis of conviction even without
corroborative evidence
• The Court referred to several landmark judgments like Madan v. State of Maharashtra
(2019) 13 SCC 464 [2 Judge Bench], Ram Bihari Yadav v. State of Bihar (1998) 4 SCC
517, Panneerselvam v. State of T.N. (2008) 17 SCC 190 [3 Judge Bench] highlighted
that a dying declaration, if found to be trustworthy and inspiring confidence, can serve as
the primary basis for conviction, even in the absence of corroborative evidence
• However, a note of caution has also been sounded in Paniben v. State of Gujarat 1992)
2 SCC 474 it was observed- “The Court has to be on guard that the statement of
deceased was not as a result of either tutoring, prompting or a product of imagination.”

Court Must Ensure Deceased's Fit State of Mind for Dying
Declarations, Witness Statements Prevail Over Medical
Evidence
• The judgment, referencing the case of Shama v. State of Haryana (2017) 11 SCC
535 highlighted that a "fit state of mind" is an essential prerequisite for the admissibility of
a dying declaration
• The Court also noted that traditionally, it has relied on medical evidence for this purpose
but held that if there were witnesses who were present during the statement to prove that
the deceased was indeed in a fit state of mind, their statements would prevail over
medical evidence.
• The Court further clarified that the absence of a doctor's certificate regarding the "fit state
of mind" of the declarant would not make the dying declaration inadmissible. This position
was affirmed in Laxman's case and reaffirmed in the case of Surendra Bangali @
Surendra Singh Routele v. State of Jharkhand (Criminal Appeal No. 1078 of 2010 [2
Judge Bench]

On multiple dying declarations:
Reliability and not plurality determine the
evidentiary value
• The Court referred to the case of Amol Singh v. State of M.P (2008) 5 SCC 468 which
emphasized that if there are inconsistencies between different dying declarations, then it
must examine the nature and determine whether it is material or not.
• The court batted for a case-specific approach as advocated in Jagbir Singh v. State
(NCT of Delhi) (2019) 8 SCC 779, where it held that when multiple dying declarations
present inconsistencies, the court must examine the entirety of the evidence and
circumstances surrounding the making of these declarations.

The presence of a magistrate not a
necessity but only a rule of prudence
• Citing the case of Jayamma and the 5 judge Constitution bench in Laxman's case, the
judgment reiterated that the law does not compel the presence of a judicial or executive
Magistrate for recording a dying declaration. Such a requirement is considered a
matter of prudence.

Dying declaration not to be discarded
only due to brevity
• In the context of brevity, the court affirmed that a dying declaration should not be
discarded just because it is concise. The Court in Surajdeo Ojha v. State of
Bihar 1980 Supp SCC 769r highlighted that if a brief dying declaration contains
essential information, it should not be overlooked by the courts.
• The court referenced the Constitution bench in Laxman's case, which opined “In
case there is merely a brief statement, it is more reliable for the reason that the
shortness of the statement is itself a guarantee of its veracity.”

Examination of the person who reduced
dying declaration into writing essential
• The ruling cited cases such as Govind Narain v. State of Rajasthan 1993 Supp (3) SCC
343 [2 Judge Bench] and Kans Raj v. State of Punjab (2000) 5 SCC 207 [3 Judge
Bench], which emphasize the legal obligation to prove the making of a statement,
whether written or verbal, by producing the scribe or the person who heard the deceased
making the statement in court.
• The Court also referred to Sudhakar v. State of Maharashtra (2000) 6 SCC 671[3 Judge
Bench] where it acknowledged that in cases where the original recorded dying
declaration is lost or unavailable, the prosecution is entitled to provide secondary
evidence.

Dying declaration should be free
from tutoring
• The Court emphasized that a dying declaration must be free from tutoring, prompting,
or imagination. However, it noted that the statement made by the deceased had many
people present during its recording, making it challenging to rule out any influence on
the statement's authenticity.
• Applying all these principles to the case at hand, it was observed that questions
regarding the identity of the person who recorded the dying declaration, its accuracy,
identity of individuals when the declaration was recorded, all of it was not certain which
raised doubts about its authenticity.

Principles to be followed in cases of Multiple
Dying Declaration
• Voluntary and Reliable Statements: All dying declarations must be voluntary and reliable, with the
person making the statement in a fit state of mind.
• Consistency: Dying declarations should be consistent, and any inconsistencies should be "material" to
impact their credibility.
• Corroboration: In cases with inconsistencies, other available evidence may be used to corroborate the
contents of the dying declarations.
• Contextual Interpretation: Dying declarations must be interpreted in light of the surrounding facts and
circumstances.
• Independent Evaluation: Each declaration must be independently evaluated, and the court should
determine which statement is most reliable to proceed with the case.
• Magistrate's Statement: When inconsistencies exist, the statement recorded by a Magistrate or a
higher-ranking officer can be relied upon if it demonstrates truthfulness and freedom from suspicion.
• Medical Fitness: The physical condition of the person making the declaration, especially in cases of
burn injuries, is crucial. The extent of burn injuries and their impact on the person's mental faculties,
along with other factors, must be considered

'Great Caution Needed' : Supreme Court Lists Out Factors To Be Considered
While Relying On Dying Declarations
1. Whether the person making the statement was in expectation of death?
2. Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity”
3. Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?
4. Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?
5. Whether the statement was not recorded properly?
6. Whether, the dying declarant had opportunity to clearly observe the incident?
7. Whether, the dying declaration has been consistent throughout?
8. Whether, the dying declaration in itself is a manifestation / fiction of the dying person’s imagination of what he thinks transpired?
9. Whether, the dying declaration was itself voluntary?
10.In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?
11.Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?

INTRODUCTION
• A Sentencing Policy in common parlance can be referred to as a guideline given to
the judiciary regarding the quantum and nature of punishment that can be imposed
on an individual, when he is found guilty of a crime. Andrew Von Hirsch and Nils
Jareborg have divided the process of determining sentence into stages of
determining proportionality while determining a sentence namely:
• 1. What interests are violated or threatened by the standard case of the crime-
physical integrity, material support and amenity, freedom from humiliation, privacy
and autonomy?
• 2. Effect of violating those interests on the living standards of a typical victim-
minimum well being, adequate well-being, significant enhancement.
• 3. Culpability of the offender.
• 4. Remoteness of the actual harm as seen by a reasonable man.
[See Andrew Ashworth, Sentencing and Criminal Justice, 2005 4th Ed.]

• Indian Scenario:
So far, no sentencing policy has been framed in India. The Sentencing Policy also does not
have any statutory backing. The Hon’ble Apex Court has from time to time expressed
concerns regarding the lack of uniformity in imposing punishments. The Supreme Court
has in State of Punjab v. Prem Sagar and Others (2008) 7 SCC 550 lamented about the
lack of uniformity in sentencing and the need to exercise discretion in a judicious manner
in the following words:
“The Parliament, in providing for a hearing on sentence, as would appear from sub-
section (2) of Section 235, sub-section (2) of Section 248, Section 325, as also Sections
360 and 361 of the Code of Criminal Procedure, has laid down certain principles. The said
provisions lay down the principle that the court in awarding the sentence must take into
consideration a large number of relevant factors; sociological backdrop of the accused
being one of them

Although a wide discretion has been conferred upon the Court, the same must
be exercised judiciously. It would depend upon the circumstances in which the
crime has been committed and his mental state. Age of the accused is also
relevant. What would be the effect of the sentencing on the society is a
question which has been left unanswered by the legislature. The Superior
Courts have come across a large number of cases which go to show anomalies
as regards the policy of sentencing. Whereas, the quantum of punishment for
commission of a similar type of offence varies from minimum to maximum,
even where same sentence is imposed, the principles applied are found to be
different. Similar discrepancies have been noticed in regard to imposition of
fine.”

• With scattered guidelines in the form of precedents and without any framed policy of
sentencing, the sentencing policy in India stands unregulated. It is also relevant here to note
that the Indian Penal Code, 1860 only provides for a maximum sentence or in some cases, the
minimum and the maximum sentence that may be imposed, leaving a sizable discretion to the
presiding officer.The lack of uniform guidelines and definite period of sentence in the statute
has definitely led to variety of punishments being imposed by the presiding officers of various
courts. From the perspective of a common man, it is increasingly feared that even the outlook,
upbringing and perspective of the deciding authority may have had an impact over the severity
of the sentence imposed.
• The lack of standard policy and the dissimilitude in handling the propotionality of sentence has
indicated a ring of caution time and again.The likelihood of an accused person losing his life by
imposition of a death penalty as well as the likelihood of a hardcore offender, getting away with
minimal sentence without adopting the guidelines/precedents set by the Hon’ble High Courts
and the Apex Court cannot be ruled out.Therefore, there is an imminent need to give utmost
attention and take all necessary safeguards at the time of deciding a sentence to be imposed on
a person who is convicted of an offence.

The Code of Criminal Procedure 1973, s.235(2)14 provides for a hearing on
sentence. The provision reads as follows:
“s.235(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 s.360 15 , hear the accused on the
question of sentence and then pass sentence on him according to
law.”
Therefore, s.235(2) mandates a hearing on sentence, before sentencing the
person convicted. More often than not, such a hearing on sentence is a mere
ritual/formality. In many cases, without knowing the implication of the
question posed by the presiding officer, the convicted person pleads not guilty
of the offence. Such a plea cannot be mechanically recorded since, it would
have no bearing on the question of adeqaucy or propotionality of sentence.

• In such cases, it is the duty of the Court to draw the attention of the convicted
person to the consequences of his plea and to ascertain the details necessary to
be considered at the time of sentencing. The Court ought not to hestitate to get
assistance from the defence counsel in this regard and ought to pose questions
that may be of relevant consideration at this stage. There may be some
instances where the defence come well prepared with a statement on behalf of
the accused showing mitigating factors to favour a reduced sentence. In those
instances, the Public Prosecutor should be requested to assist the court. In short,
the seriousness of a hearing on sentence has to be made to be imbibed in the
minds of all the stake holders concerned.

• The scope of hearing provided under s.235(2) of the Code of Criminal Procedure 1973 came up
for discussion in the case of Santa Singh v State of Punjab, 1976 AIR 2386, 1977 SCR (1) 229
wherein the Division Bench of the Hon’ble Supreme Court, Justice P. N. Bhagawati, speaking
for the bench observed as follows:
• “Modern penology as pointed out by this court regards crime and criminal as equally material
when the right sentence has to be picked out. It turns the focus not only on the crime, but also
on the criminal and seeks to personalize the punishment so that the reformist component is
as much operative as the deterrent element. It is necessary for this purpose that facts of a
social and personal nature, sometimes altogether irrelevant, if not injurious, at the stage of
fixing the guilt, may have to be brought to the notice of the Court when the actual sentence is
determined.

The material may be placed before the Court by means of affidavits, but if either party
disputes the correctness or veracity of the material sought to be produced by the other, an
opportunity would have to be given to the party concerned to lead evidence for the purpose
of bringing such material on record. The hearing on question of sentencing would be
rendered devoid of all meaning and content and it would become an idle formality if it were
merely confined to oral submissions without any opportunity being given to the parties and
particularly to the accused, to produce material in regard to the various factors bearing on
the question of sentence, and if necessary, to lead evidecne for the purpose of placing such
material before the Court... Of course, care would have to be taken by the Court to see that
this hearing on question of sentence is not abused and turned into an instrument for unduly
protracting the trial/proceeding. The claim of due and proper hearing would have to be
harmonized with the requirement of expeditious disposal of the proceedings.”

In the above case, the Supreme Court went on to hold that the
general public have to be educated about the new trends of
penology and sentencing procedures. The tool must be used for
reforming, rehabilitating criminals, smoothening out the uneven
texture of the social fabric, not as a weapon, fashioned by law, for
protecting and perpetrating the hegemony of one class over the
other.

The modern approach of the Courts towards sentencing attempts a balancing act
between the heinousness of the crime and the rights of the victim to be rehabilitated
on one hand and the age of the accused, the circumstances under which the crime is
committed and repentive state of mind of the accused on the other hand. Broad
guidelines in this regard have been issued by the Apex Court in certain cases. Apart
from these, there are cases, where the adequate and proportional sentencing has
been considered by various High Courts of the Country as well as the Supreme Court
in connection with the peculiar facts of each case. The said principles can be applied in
factually similar cases by the District Judiciary. A few examples of such guidelines are
mentioned herein below:

(i) Bachan Singh vs State Of Punjab, AIR 1980 SC 898 the Supreme Court, which
upholding the constitutional validity of s.302 of the Indian Penal Code, providing an
alternative death sentence, observed as follows:
“It is, therefore, imperative to voice the concern that courts, aided by the broad
illustrative guidelines indicated by us, will discharge the onerous function with
evermore scrupulous care and humane concern, directed along the highroad of
legislative policy outlined in Section 354(3), viz., that for persons convicted of murder,
life imprisonment is the rule and death sentence an exception. A real and abiding
concern for the dignity of human life postulates resistance to taking a life through law's
instrumentality. That ought not to be done save in the rarest of rare cases when the
alternative option is unquestionably foreclosed.”

• (ii) Machhi Singh And Others vs State Of Punjab, 1983 (3)
SCC 470 : In this case, the Supreme Court, relying upon the
principles laid down in Bachan Singh’s case, went on to observe
that in order to fit a particular set of facts into the category of
‘rarest of the rare’ case, the following question may be posed:
• “In order to apply these guidelines inter-alia the following
questions may be asked and answered:
• (a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate and calls
for a death sentence?
• (b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which
speak in favour of the offender?”

(iii) Gurmukh Singh vs State Of Haryana, (2009) 15 SCC 635 it was laid down by
the Hon’ble Supreme Court that the following aspects could be considered while
awarding punishment to the convicted person.
“24. These are some factors which are required to be taken into consideration before
awarding appropriate sentence to the accused. These factors are only illustrative in
character and not exhaustive. Each case has to be seen from its special perspective.
The relevant factors are as under:
A). Motive or previous enmity;
b) Whether the incident had taken place on the spur of the moment;
c) The intention/knowledge of the accused while inflicting the blow or injury;
d) Whether the death ensued instantaneously or the victim died after several days;
e) The gravity, dimension and nature of injury;
f) The age and general health condition of the accused;
g) Whether the injury was caused without pre-meditation in a sudden fight;

• h)The nature and size of weapon used for inflicting the injury and the force
with which the blow was inflicted;
• i)The criminal background and adverse history of the accused;
• j)Whether the injury inflicted was not sufficient in the ordinary course of
nature to cause death but the death was because of shock;
• k) Number of other criminal cases pending against the accused;
• l) Incident occurred within the family members or close relations;
• m)The conduct and behaviour of the accused after the incident.Whether
the accused had taken the injured/the deceased to the hospital
immediately to ensure that he/she gets proper medical treatment?

• These are some of the factors which can be taken into consideration while granting an
appropriate sentence to the accused. The list of circumstances enumerated above is
only illustrative and not exhaustive. In our considered view, proper and appropriate
sentence to the accused is the bounded obligation and duty of the court. The endeavour
of the court must be to ensure that the accused receives appropriate sentence, in other
words, sentence should be according to the gravity of the offence. These are some of
the relevant factors which are required to be kept in view while convicting and
sentencing the accused.”
• A broad guideline was given to the trial courts regarding the circumstances, which have
to be considered before imposition of sentence.

• (iv) In Rajendra Prahladrao Wasnik vs The State Of Maharashtra, 2018 SCC OnLine SC 2799
it was observed by the Supreme Court that the trial court has to give sufficient opportunity to the
prosecution and the defence to produce materials to ensure proper sentencing. It was observed as
follows:
• “We may generally mention, in conclusion, that there is really no reason for the Trial Judge to be in
haste in awarding a sentence in a case where he might be considering death penalty on the ground
that any other alternative option is unquestionably foreclosed. The convict would in any case remain in
custody for a fairly long time since the minimum punishment awarded would be imprisonment for life.
Therefore, a Trial Judge can take his time and sentence the convict after giving adequate opportunity
for the prosecution as well as for the defence to produce material as postulated in Bachan Singh so
that the possibility of awarding life sentence is open to the Trial Judge as against the death sentence.
It must be appreciated that a sentence of death should be awarded only in the rarest of rare cases,
only if an alternative option is unquestionably foreclosed and only after full consideration of all factors
keeping in mind that a sentence of death is irrevocable and irretrievable upon execution. It should
always be remembered that while the crime is important, the criminal is equally important insofar as
the sentencing process is concerned.”

• (vi) Alister Anthony Pareira vs State Of Maharashtra, (2012) 2 SCC 648 is a case
wherein the Supreme Court reiterated the importance of imposing adequate sentence,
considering not only the rights of the criminal but also the rights of the victim of the crime
and the society at large. In this matter, the Supreme Court made the following
observations regarding the principles involved in sentencing.
• “70. Sentencing is an important task in the matters of crime. One of the prime objectives
of the criminal law is imposition of appropriate, adequate, just and proportionate sentence
commensurate with the nature and gravity of crime and the manner in which the crime is
done. There is no straitjacket formula for sentencing an accused on proof of crime. The
courts have evolved certain principles: twin objective of the sentencing policy is deterrence
and correction. What sentence would meet the ends of justice depends on the facts and
circumstances of each case and the court must keep in mind the gravity of the crime,
motive for the crime, nature of the offence and all other attendant circumstances.

• 71.The principle of proportionality in sentencing a crime doer is well entrenched in criminal
jurisprudence. As a matter of law, proportion between crime and punishment bears most
relevant influence in determination of sentencing the crime doer.The court has to take into
consideration all aspects including social interest and consciousness of the society for award of
appropriate sentence.”
• The above judgements are samples of the broad guidelines given by the Apex Court from time to
time regarding sentencing in criminal cases. It is seen that all the decisions give a broad outline as
to how a Judge should go about the task of sentencing. Ultimately, when it comes to the
application of these principles in practice, one would only go by the facts of each case.
• The goals of having sentencing guidelines is to
• (i) have rational and consistent sentencing standards;
• (ii) proportionality in sentence;
• (iii) Uniformity in sentencing; and
• (iv) ensuring public safety.
• As is mentioned herein, what is framed is only in the form of guidelines and only weighs
persuasively with the Judge.

Bhagwani Versus The State of Madhya
Pradesh – 2022 (13) SCC 385
• Accused must be given an opportunity to make a representation against
the sentence to be imposed on him. A bifurcated hearing for convicting
and sentencing is necessary to provide an effective opportunity to the
accused. Adequate opportunity to produce relevant material on the
question of death sentence shall be provided to the accused by the Trial
Court. (Para 13)

FEDRICK CUTINHA versus STATE OF
KARNATAKA – 2023 SCC Online SC 437
• Appellate court reverses acquittal of two accused in murder case - However imposes
sentences on them without hearing them on sentence as per Section 235(2) - Supreme
Court sets aside the sentence finding it to be ex-facie illegal as accused were not heard -
In view of sub Section (2) of Section 235 of CrPC, the court is obliged to hear the accused
persons after their conviction on the quantum of sentence before passing a sentence
against them - The principle of according opportunity of hearing to the convict
before sentencing him is equally applicable where the sentencing is done by the
appellate court.

Pre-Sentence Hearing On A Separate Date Not
Mandatory: SC – X VS. STATE OF MAHARASHTRA – 2019
(7) SCC 1
• "Depending on the facts and circumstances, a separate date may be required for
hearing on sentence, but it is equally permissible to argue on the question of
sentence on the same day if the parties wish to do so."
• The bench comprising Justice NV Ramana, Justice Mohan M.
Shantanagoudar and Justice Indira Banerjee observed that the object of
Section 235 (2) of the Code of Criminal Procedure is to provide an opportunity for
accused to adduce mitigating circumstances, but it does not mean that the Trial
Court can fulfil the requirements of Section 235(2) of the Cr.P.C. only by
adjourning the matter for one or two days to hear the parties on sentence.

• The court further observed that even if a procedural irregularity is committed by the trial
court to a certain extent on the question of hearing on sentence, the violation can be
remedied by the appellate Court by providing sufficient opportunity of being heard on
sentence. It laid down the following principles to be followed by appellate court while
dealing with such irregularities
• That the term 'hearing' occurring under Section 235 (2) requires the accused and
prosecution at their option, to be given a meaningful opportunity.
• Meaningful hearing under Section 235 (2) of CrPC, in the usual course, is not
conditional upon time or number of days granted for the same. It is to be measured
qualitatively and not quantitatively.
• The trial court need to comply with the mandate of Section 235 (2) of CrPC with best
efforts

• Non-compliance can be rectified at the appellate stage as well, by providing meaningful
opportunity.
• If such an opportunity is not provided by the trial court, the appellate court needs to balance
various considerations and either afford an opportunity before itself or remand back to trial
court, in appropriate case, for fresh consideration.
• However, the accused need to satisfy the appellate courts, inter alia by pleading on the grounds
as to existence of mitigating circumstances, for its further consideration.
• Being aware of certain harsh realities such as long protracted delays or jail appeals through
legal aid etc., wherein the appellate court, in appropriate cases, may take recourse of
independent enquiries on relevant facts ordered by the court itself.
• If no such grounds are brought by the accused before the appellate courts, then it is not
obligated to take recourse under Section 235 (2) of CrPC.

Is Same day sentencing proper? Supreme
Court refers issue to 5- judge bench in
view of conflicting judgments.
2022 SCC Online SC 1246

“12. Other more recent three-judge decisions have also ruled that same day sentencing in capital
offences violate the principles of natural justice, and is opposed to Section 235 (2). In Dattaraya v.
State of Maharashtra, (2020) 14 SCC 290. , this court observed, inter alia, that:
• “132. For effective hearing under Section 235(2) of the Code of Criminal Procedure, the
suggestion that the court intends to impose death penalty should specifically be made to the
accused, to enable the accused to make an effective representation against death sentence, by
placing mitigating circumstances before the Court.This has not been done.The trial court made
no attempt to elicit relevant facts, nor did the trial court give any opportunity to the petitioner
to file an affidavit placing on record mitigating factors. As such the petitioner has been denied
an effective hearing.

• In Bhagwani v. State of Madhya Pradesh, 2022 SCC OnLine SC 52 also
iterated the need to have a separate hearing, on the question of sentence:
• “16. A bifurcated hearing for convicting and sentencing is necessary to
provide an effective opportunity to the accused [Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498].
Adequate opportunity to produce relevant material on the question of
death sentence shall be provided to the accused by the Trial Court
[Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC
460].”

• 19.This court in X v. State of Maharashtra (three-judge bench), extensively considered the
precedents on the question of sentencing, and concluded the position of law as follows:
• “40. As noted above, many cases have grappled with the question as to the choice between the
two.The approach of this Court needs to be rationalised and understood in the light of
cautionary approach discussed above. From the aforesaid discussion, the following dicta
emerge:
• 40.1.That the term “hearing” occurring under Section 235(2) requires the accused and
prosecution at their option, to be given a meaningful opportunity.
• 40.2. Meaningful hearing under Section 235(2) CrPC, in the usual course, is not conditional upon
time or number of days granted for the same. It is to be measured qualitatively and not
quantitatively.
• 40.3.The trial court needs to comply with the mandate of Section 235(2) CrPC with best efforts.
• 40.4. Non-compliance can be rectified at the appellate stage as well, by providing meaningful
opportunity.
• 40.5. If such an opportunity is not provided by the trial court, the appellate court needs to
balance various considerations and either afford an opportunity before itself or remand back to
the trial court, in appropriate case, for fresh consideration”

• 20. The common thread that runs through all these decisions is the express
acknowledgment that meaningful, real and effective hearing must be
afforded to the accused, with the opportunity to adduce material relevant for
the question of sentencing. What is conspicuously absent, is consideration
and contemplation about the time this may require. In cases where it was felt
that real and effective hearing may not have been given (on account of the
same day sentencing), this court was satisfied that the flaw had been
remedied at the appellate (or review stage), by affording the accused a
chance to adduce material, and thus fulfilling the mandate of Section 235(2)

• 23. In light of the above, there exists a clear conflict of opinions by two sets of three judge bench
decisions on the subject. As noticed before, this court in Bachan Singh had taken into
consideration the fairness afforded to a convict by a separate hearing, as an important safeguard
to uphold imposition of death sentence in the rarest of rare cases, by relying upon the
recommendations of the 48th Law Commission Report. It is also a fact that in all cases where
imposition of capital punishment is a choice of sentence, aggravating circumstances would always
be on record, and would be part of the prosecution’s evidence, leading to conviction, whereas the
accused can scarcely be expected to place mitigating circumstances on the record, for the reason
that the stage for doing so is after conviction. This places the convict at a hopeless disadvantage,
tilting the scales heavily against him. This court is of the opinion that it is necessary to have clarity
in the matter to ensure a uniform approach on the question of granting real and meaningful
opportunity, as opposed to a formal hearing, to the accused/convict, on the issue of sentence.

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