Mukesh Kumar Yadav vs The State
- Court
- Supreme Court
REPORTABLE
2026 INSC 559
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2863-2864 of 2026
(Arising out of SLP (Crl.) Nos. 8660-61 of 2026)
Mukesh Kumar Yadav … Appellant(s)
Versus
The State (UT of Andaman &
Nicobar Islands) Etc. … Respondent(s)
J U D G M E N T
K. V. Viswanathan, J.
1. Leave granted.
2. The present appeals call in question the correctness of
the judgment and order dated 23.04.2026 passed by the High
Court at Calcutta (Circuit Bench at Port Blair) in CRA
(DB)/6/2024 and CRA (DB)/4/2024.
Signature Not Verified
3. The appeals before the High Court, one by the State
Digitally signed by
ANITA MALHOTRA
Date: 2026.05.26
17:58:13 IST
Reason:
[CRA (DB)/4/2024] and one by the victim Ms. X [CRA
Page 1 of 18
(DB)/6/2024], in turn, challenged the correctness of the
judgment of acquittal dated 24.04.2024 passed by the
learned Sessions Judge, Andaman and Nicobar Islands at
Port Blair in Sessions Case No.32/2015.
4. The appellant stood trial before the learned Sessions
Judge, Andaman and Nicobar Islands for offences punishable
under Sections 376, 312 and 417 of the Indian Penal Code,
1860 (for short the “IPC”). By the judgment dated
24.04.2024, the learned Sessions Judge acquitted the
appellant of all the offences charged.
5. The High Court, hearing the appeal against acquittal,
found the appellant guilty of offences punishable under
Section 376 and 312 IPC. The High Court recorded the
following in para 108 of the judgment:-
“108. In view of the discussion above, we have come to the
conclusion on the basis of testimony of the VL in the relevant
sessions trial along with the evidence of supporting vital
witnesses, that VL was sexually abused on the pretext of
marriage at the instance of Mukesh knowing fully well that
such promise to marry was false from the very beginning of
the relevant relationship between him and the victim. The
alleged consent of the VL was procured on her
misconception of the fact that Mukesh had the intention to
Page 2 of 18
marry her. There is also evidence to the effect that to shield
the pregnancy of the VL, Mukesh persuaded her to consume
pills for terminating her pregnancy, being fully aware that
his promise to marry the VL was false, and as such we have
found that Mukesh is guilty of the offence punishable under
Section 376 and also under Section 312 IPC. The learned
Trial Judge did not analyse the evidence on record in its
proper perspective. The impugned judgment has
occasioned failure of justice and in view of such palpable
error, irregularity and illegality in the judgment, we are
inclined to set aside the said judgment of acquittal and
accordingly we do so. As there was a clear failure of
justice, we pronounce the judgment of conviction
against Mukesh Kumar Yadav and accordingly, we find
that Mukesh Kumar Yadav is guilty of offences
punishable under Section 376/312 IPC and he is, thus
convicted for the offences under section 376/312 IPC.
The convict Mukesh is directed to surrender before the
nd
learned Trial Judge by 22 May, 2026 and on his
surrender the learned trial judge shall take him into
custody and shall pronounce and impose the proper
sentence under Sections 376/312 IPC after hearing on
the point of sentence in accordance with law. If the
convict fails to surrender on or before the appointed day
the learned Trial Judge shall issue warrant of arrest
against him. However, we make it clear that within 7
days of his surrender on production in execution of
warrant or arrest, as the case may be, the learned Trial
Judge shall pronounce the sentence after complying
with all the legal formalities. The appeals being CRA
(DB) 6 of 2024 and CRA (DB) 4 of 2024 are allowed. The
judgment of acquittal dated 24.04.2024 passed by the
learned Sessions Judge Andaman and Nicobar Islands at
Port Blair in connection with Sessions case no. 32 of 2015
corresponding to Sessions Trial No. 16 of October 2015 is
hereby set aside. ”
(Emphasis supplied)
Page 3 of 18
6. What is important to note from the above paragraph is
that after convicting the appellant, instead of setting a date
for hearing the accused on sentence, the High Court directed
the appellant to surrender before the learned Trial Judge and
further directed that on his surrender the learned Trial Judge
shall take him into custody and shall pronounce and impose
the proper sentence under Sections 376/312 IPC, after
hearing on the point of sentence in accordance with law.
7. When this matter first came before us, having noticed
the incongruity in the procedure adopted by the High Court,
on 12.05.2026, we issued notice to the respondents to hear on
the correctness of the procedure adopted.
8. We have heard Mr. Rauf Rahim, learned senior counsel
for the appellant, Mr. Kunal Chatterji, learned counsel for the
respondent-victim and Mr. Mukesh Kumar Verma, learned
counsel for the respondent-State.
9. Chapter XVIII of the Code of Criminal Procedure, 1973
(for short the “Cr.P.C.”) deals with the procedure for trial
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before a court of session. Section 235, Cr.P.C. [Section 258,
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short the
“BNSS”)] which is important for our discussion is set out
hereinbelow:-
“ 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.
(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 questions of sentence, and then pass
sentence on him according to law.”
As would be clear, under Section 235(1), after hearing
arguments and points of law (if any), a judge delivers a
judgment in the case. Under Section 235(2), if the accused is
convicted, the judge shall, unless he proceeds in accordance
with the provisions of Section 360, Cr.P.C. (equivalent to
Section 401, BNSS), hear the accused on the question of
sentence, and then pass sentence on him according to law.
Section 360, Cr.P.C., deals with order to release on probation
of good conduct with which we are not concerned herein.
10. Thus, this is a procedure which the trial court will follow
in the event of conviction. The rationale behind Section
Page 5 of 18
235(2) was explained in Allauddin Mian and Others Sharif
1
Mian and Another v. State of Bihar . This Court held that the
requirement of hearing was intended to satisfy the rule of
natural justice. The Court further elaborated by stating that
since the Courts are generally required to make the choice
from a wide range of discretion in the matter of sentencing, it
is only fair that the accused is asked if he had anything to say
on the issue of sentence. Para 10 of the Judgment is extracted
hereunder:-
“10. Even a casual glance at the provisions of the Penal Code
will show that the punishments have been carefully graded
corresponding with the gravity of offences; in grave wrongs
the punishments prescribed are strict whereas for minor
offences leniency is shown. Here again there is considerable
room for manoeuvre because the choice of the punishment is
left to the discretion of the judge with only the outer limits
stated. There are only a few cases where a minimum
punishment is prescribed. The question then is what
procedure does the judge follow for determining the
punishment to be imposed in each case to fit the crime ? The
choice has to be made after following the procedure set out in
sub-section (2) of Section 235 of the Code. That sub-section
reads as under :
If the accused is convicted, the judge shall, unless he
proceeds in accordance with the provisions of Section 360,
1
(1989) 3 SCC 5
Page 6 of 18
hear the accused on the question of sentence, and then pass
sentence on him according to law.
The requirement of hearing the accused is
intended to satisfy the rule of natural justice. It is a
fundamental requirement of fair play that the accused
who was hitherto concentrating on the prosecution
evidence on the question of guilt should, on being found
guilty, be asked if he has anything to say or any
evidence to tender on the question of sentence. This is
all the more necessary since the courts are generally
required to make the choice from a wide range of
discretion in the matter of sentencing. To assist the
court in determining the correct sentence to be imposed
the legislature introduced sub-section (2) to Section 235.
The said provision therefore satisfies a dual purpose; it
satisfies the rule of natural justice by according to the
accused an opportunity of being heard on the question of
sentence and at the same time helps the court to choose
the sentence to be awarded. Since the provision is
intended to give the accused an opportunity to place before
the court all the relevant material having a bearing on the
question of sentence there can be no doubt that the
provision is salutary and must be strictly followed…...”
[Emphasis supplied]
11. One more judgment which requires mention in this
2
context is Dagdu and Others v. State of Maharashtra ,
wherein a question arose as to what if the convicting court
sentences the accused without hearing him on the sentence.
This Court held that the higher court can on confirming the
2
(1977) 3 SCC 68
Page 7 of 18
conviction, remedy the breach by giving a hearing to the
accused on the question of sentence. This Court held that the
Court may, in appropriate cases, adjourn the matter in order
to give to the accused sufficient time to produce necessary
data and to make his contentions on the question of sentence.
The Court went on to add that this procedure must inevitably
happen where the conviction is recorded for the first time by
a higher court. Para 79 reads as follows: -
“ 79. But we are unable to read the judgment in Santa
Singh as laying down that the failure on the part of the Court,
which convicts an accused, to hear him on the question of
sentence must necessarily entail a remand to that Court in
order to afford to the accused an opportunity to be heard on
the question us sentence. The Court, on convicting an
accused, must unquestionably hear him on the qustion of
sentence. But if, for any 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. That opportunity has to be real and effective,
which means that the accused must be permitted to adduce
before the Court all the data which he desires to adduce on
the question of sentence. The accused may exercise that
right either by instructing his counsel to make oral
submisions to the Court or he may, on affidavit or otherwise,
place in writing before the Court whatever he desires to
place before it on the question of sentence. The Court may,
in appropriate cases, have to adjourn the matter in order
to give to the accused sufficient time to produce the
Page 8 of 18
necessary data and to make his contentions on the
question of sentence. That, perhaps, must inevitably
happen where the conviction is recorded for the first
time by a higher court. ”
[Emphasis supplied]
12. Equally, situations may arise where the trial court
acquits the accused. In an acquittal, the question of hearing
on sentence will not arise. On appeal by the State or by the
victim/informant, what should be the position if the higher
court reverses the acquittal and for the first time convicts the
accused. To appreciate this position, a reference needs to
be made to Section 386, Cr.P.C. (equivalent to Section 427,
BNSS). Section 386(a), Cr.P.C., which is relevant for our
purpose reads as under:-
“ 386. Powers of the Appellate Court .—After perusing such
record and hearing the appellant or his pleader, if he
appears, and the Public Prosecutor if he appears, and in
case of an appeal under section 377 or section 378, the
accused, if he appears, the Appellate Court may, if it
considers that there is no sufficient ground for interfering,
dismiss the appeal, or may—
(a) in an appeal from an order or acquittal, reverse
such order and direct that further inquiry be made, or
that the accused be re-tried or committed for trial, as
the case may be, or find him guilty and pass sentence
on him according to law;
……”
Page 9 of 18
13. It can be seen from Section 386(a), Cr.P.C., that where
in an appeal from an order of acquittal, the court hearing the
appeal finds the accused guilty it is required to pass a
sentence on him according to law.
3
14. In Kumar Exports Vs. Sharma Carpets , this Court
interpreting Section 386(a), Cr.P.C., while holding that
appellate court ought not, after recording conviction, remit
the matter to the trial court and that the appellate court is
obligated to impose an appropriate sentence, held as
under:-
“ 26. This Court has also noticed a strange and very
disturbing feature of the case. The High Court, after
convicting the appellant under Section 138 of the Act,
remitted the matter to the learned Magistrate for passing
appropriate order of sentence. This course, adopted by the
learned Single Judge, is unknown to law. The learned
Single Judge was hearing an appeal from an order of
acquittal. The powers of the appellate court, in an appeal
from an order of acquittal, are enumerated in Section
386( a ) of the Code of Criminal Procedure, 1973. Those
powers do not contemplate that an appellate court, after
recording conviction, can remit the matter to the trial
court for passing appropriate order of sentence. The
judicial function of imposing appropriate sentence can be
performed only by the appellate court when it reverses the
3
(2009) 2 SCC 513
Page 10 of 18
order of acquittal and not by any other court. Having
regard to the scheme of the Code of Criminal Procedure,
1973 this Court is of the view that after finding the
appellant guilty under Section 138 of the Act, the judicial
discretion of imposing appropriate sentence could not
have been abdicated by the learned Single Judge in favour
of the learned Magistrate. Having found the appellant
guilty under Section 138 of the Act it was the bounden duty
of the High Court to impose appropriate sentence
commensurate with the facts of the case. Therefore, we do
not approve or accept the procedure adopted by the High
Court. Be that as it may, in this case, we have found that
reversal of acquittal itself was not justified.”
[Emphasis supplied]
15. Not only should the appellate court not remand the
matter to the trial court only for the purpose of imposing a
sentence, after it finds accused guilty, it has a bounden duty
to hear and impose an appropriate sentence.
16. The appellate court which will include the High Court, in
a given scenario, while recording a conviction after
reversing the acquittal, should adjourn the matter to a
suitable date, hear the convicts, and impose an appropriate
sentence itself.
17. In fact even this Court has, while convicting the accused
for the first time, after recording the conviction, adjourned
Page 11 of 18
the matter to a particular date to hear the accused on the
question of sentence. In Suryamoorthi and Another v.
4
Govindaswamy and Others , this Court held as under:-
“14. Since we are convicting Accused 1, 4 and 7 for the first
time in this Court we would like to give them an opportunity
of being heard on the question of sentence as required by
Section 235(2) of the CrPC. The case will be put up before us
after 10 days for hearing the accused on the question of
sentence. The acquittal of the rest of the Accused 2, 3, 5 and
6, is however, confirmed. The sums recovered from the
possession of the convicted accused will be made over to
PW 2. As regards the amount of Rs 33,600 recovered from
PW 2, since the High Court has already given appropriate
directions, we need not make further orders.”
18. In fact, in yet another case, this Court after finding that
the High Court while reversing the acquittal and convicting
the accused did not hear the accused on the question of
sentence, took upon itself to hear the accused on sentence
while confirming the conviction. In Kamalakar Nandram
5
Bhavsar and Others v. State of Maharashtra , this Court
held as under:-
“ 11. The learned counsel for the appellants then contended
that the High Court while reversing the judgment of
acquittal by the trial court failed to give an opportunity to
4
(1989) 3 SCC 24
5
(2004) 10 SCC 192
Page 12 of 18
the accused persons of being heard in regard to the
quantum of sentence as required under Section 235 of the
Code of Criminal Procedure. In support of this contention,
the learned counsel relied on a judgment of this Court in the
case of Santa Singh v. State of Punjab . In that case, this Court
came to the conclusion that the failure of the court in
complying with the requirement of Section 235(2) is not
merely an irregularity but is an illegality which vitiates the
sentence. In that case, the trial court while awarding the
sentence of death for an offence punishable under Section
302 IPC did not comply with the requirement of Section
235(2) of the Code. Therefore, this Court came to the
conclusion that since there is an illegality which vitiates the
sentence, an opportunity should be given to the accused
persons of being heard before awarding the sentence,
hence, on that ground viz. on the ground of hearing the
appellants on the question of sentence alone remanded the
matter back to the trial court for giving an opportunity to the
accused to make a representation regarding the sentence
proposed. It is on the basis of this judgment, the learned
counsel for the appellants contended that the High Court in
this case has erred in awarding the sentence to the
appellants without affording an opportunity to them to
represent against the sentence. Acceptance of the argument
of the appellant on this point would only make us remand
the matter back to the High Court to award an opportunity to
the appellants to represent against the quantum of sentence.
But then we find such a remand is not always mandatory.
This Court in the case of Dagdu v. State of Maharashtra after
considering the earlier judgment in the case of Santa Singh
held:
The fact that the Supreme Court in Santa Singh
remanded the matter to the Sessions Court does not
spell out the ratio of the judgment to be that in every
such case there has to be a remand but the remand is
an exception, not the rule and ought, therefore, to be
Page 13 of 18
avoided as far as possible in the interest of
expeditious, though fair, disposal of cases.”
12. We are of the opinion that this law laid down by a
three-Judge Bench of this Court applies squarely to the
facts of this case. Therefore, having come to the
conclusion that the conviction by the High Court of
Appellants 1, 3, 4 and 5 is justified, we affirm the same
under Sections 306 and 498-A of the Code of Criminal
Procedure but postpone the awarding of sentence to give
an opportunity to the learned counsel for the appellants to
represent before us in regard to the quantum of sentence.
We, however, allow the appeal of the second appellant
Nandram Anand Bhavsar and set aside the conviction and
sentence imposed on him by the courts below and acquit
him of the charges framed against him. We find
Kamalakar Nandram Bhavsar (A-1), Tara Bai Nandram
Bhavsar (A-3), Hirabai Satish Bhavsar (A-4) and Mirabai
Nandram Bhavsar (A-5) guilty of offences punishable
under Section 306 read with Section 34 and Section 498-A
read with Section 34 IPC and confirm the conviction of the
appellants on that score.
13. Having come to the conclusion that Appellants 1, 3, 4
and 5 have been rightly convicted by the High Court
under Section 306 read with Section 34 and Section 498-A
read with Section 34, with a view to comply with the
requirement of Section 235(2) of the Code of Criminal
Procedure, we listed the matter for further arguments in
regard to the sentence to be awarded to the convicted
appellants since the same was not done by the High
Court. The learned counsel for the appellants contended
that the appellants come from economically backward
community and have not been accused or convicted of
any other offence prior to the incident in this case. He also
submitted that the third appellant being an old lady and
the fourth appellant being a divorcee and dependent on
her parents and the fifth appellant being a young lady
Page 14 of 18
recently married having a small child should be dealt with
leniently and the sentence awarded by the High Court
being far in excess, the same should be reduced
considerably in regard to all the convicted appellants,
whereas the learned counsel appearing for the State of
Maharashtra submitted there is absolutely no reason why
any leniency should be shown to these appellants whose
cruel behaviour has forced an innocent lady to commit
suicide, therefore, the conviction awarded to these
appellants by the High Court is appropriate and the same
should be maintained. We have noticed that the High
Court has sentenced these appellants to undergo three
years' imprisonment under Section 498-A read with
Section 34 and to pay a fine of Rs 5000 each, in default to
undergo RI for six months. These appellants have also
been sentenced by the High Court for an offence
punishable under Section 306 read with Section 34 IPC
and are sentenced to suffer RI for ten years and to pay a
fine of Rs 5000 each, in default to undergo RI for one year.
All the substantive sentences were directed to run
concurrently. The High Court also directed that the fine
amount if paid, 80% thereof should be paid to the parents
of the victim as compensation. Taking into consideration
the individual roles played by these accused persons in
abetting the suicide of the victim and the respective age
as well as family circumstances, we think it appropriate to
modify the sentence awarded by the High Court under
Section 498-A read with Section 34 IPC to the first
appellant Kamalakar Nandram Bhavsar to RI for three
years and to pay a fine of Rs 5000, in default to undergo
further RI for six months. He is also convicted under
Section 306 read with Section 34 IPC, but his sentence is
reduced to five years' RI and to pay a fine of Rs 10,000, in
default to undergo RI for one year. Substantive sentences
to run concurrently.”
Page 15 of 18
19. What is clear from the above discussion is that, a court
which convicts the accused for the first time has to hear the
accused on sentence. If it is a trial court then Section 235(2),
Cr.P.C., will apply. If it is the appellate court which is
convicting the accused for the first time after reversing the
acquittal, the appellate court has to hear the convict on
sentence. The appellate court cannot relegate the matter to
the court below only for the purpose of imposing a sentence
after the appellate court had recorded a conviction. That will
be contrary to Section 386(a), Cr.P.C., and the judgments of
this Court.
20. In view of the above, we have no hesitation in holding
that the High Court committed an error in directing the trial
judge to pronounce and impose a proper sentence. The
following portion in para 108 of the judgment of the High
Court which is impugned herein would stand set aside:-
“108. …The convict Mukesh is directed to surrender before
nd
the learned Trial Judge by 22 May, 2026 and on his
surrender the learned trial judge shall take him into custody
and shall pronounce and impose the proper sentence under
Sections 376/312 IPC after hearing on the point of sentence
Page 16 of 18
in accordance with law. If the convict fails to surrender on
or before the appointed day the learned Trial Judge shall
issue warrant of arrest against him. However, we make it
clear that within 7 days of his surrender on production in
execution of warrant or arrest, as the case may be, the
learned Trial Judge shall pronounce the sentence after
complying with all the legal formalities. The appeals being
CRA (DB) 6 of 2024 and CRA (DB) 4 of 2024 are allowed. The
judgment of acquittal dated 24.04.2024 passed by the
learned Sessions Judge Andaman and Nicobar Islands at
Port Blair in connection with Sessions case no. 32 of 2015
corresponding to Sessions Trial No. 16 of October 2015 is
hereby set aside”
The rest of the judgment has not been considered at this
stage as it is premature.
21. The matter is remitted to the High Court. For this
purpose CRA (DB)/6/2024 and CRA (DB)/4/2024 will stand
restored to the file of the High Court.
22. The High Court shall now fix a date for hearing the
convict on the issue of sentence. After hearing the convict,
the High Court may impose an appropriate sentence which it
deems fit in accordance with law. Post the imposition of
sentence, the appellant would be at liberty to challenge the
conviction and sentence afresh. The appeals are partly
allowed in the above terms.
Page 17 of 18
23. Let a copy of this judgment be sent to the Registrar
General of the High Court at Calcutta. The Registrar General
on receipt of the judgment shall place the same before
Hon’ble Chief Justice of the Calcutta High Court for
appropriate action.
……….........................J.
[ K. V. VISWANATHAN ]
……….........................J.
[ VIJAY BISHNOI ]
New Delhi;
th
26 May, 2026
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