Rameshbhai Chandubhai Rathod vs State Of Gujarat

Brijesh, aged 16 years, and the deceased, a daughter, a Class 2

IV student in Ankur School. The accused-appellant was

residing with his wife Savita and two children in a one room

tenement close by. On the 17th December 1999, the

complainant and his wife went to Udhana at about 8.00 p.m.

to attend a religious ceremony and on returning therefrom

found that their daughter was missing. Frantic enquiries made

by the family, bore no result. The complainant thereupon

lodged a FIR at 2.30 a.m. on the 18th December 1999 with the

Rander Police Station to that effect. The complainant

nevertheless continued to search for the child and in due

course ascertained from one Bipinbhai Bhandari, one of his

friends, who told him that his (Bhandari's) old servant

Bishnubhai had told him that he had seen the appellant

taking the girl with him on his bicycle. This information was

conveyed to the police by the complainant. The police made a

search for the appellant but he could not be immediately

found but was ultimately located the next day i.e. on the 19th

December 1999 by Chandravadan Patel who spotted him

sitting in an open space near the vegetable market. The

appellant made an extra judicial confession to him that he had 3

raped and killed the child. The police was, accordingly,

informed and they took the appellant into custody. The

appellant also made a disclosure to the complainant as to the

place of incident and the dead body was recovered from that

place. On the completion of the investigation, the accused was

charged for offences punishable under Sections 363,

366,376,302 and 397 of the IPC and brought to trial. The trial

court on a minute appreciation of the evidence which was

exclusively circumstantial in nature, held that the case against

the appellant had been proved beyond doubt, and accordingly

convicted him and sentenced him to death for the commission

of the offence punishable under section 302 and to various

terms of imprisonment for the other offences. The matter was,

thereafter, referred to the High Court and the accused also

filed an appeal challenging his conviction. The High Court

confirmed the reference and dismissed the appeal. The High

Court also found that the case against the accused fell within

the category of the rarest of the rare cases, as envisaged in

Bachan Singh vs. State of Punjab 1980 (2) SCC 684 and

Machi Singh vs. State of Punjab 1993 (3) SCC 470 as 4

followed and clarified in a series of other judgments

subsequently, particularly, in Dhanonjoy Chatterjee vs.

State of West Bengal 1994 (2) SCC 220 and observing that

in the balance sheet of the aggravating and mitigating

circumstances, the former were pre-dominant, confirmed the

death sentence. The judgment of the High Court was

challenged by the appellant in this Court and after the grant of

special leave, the matter was heard by a Division Bench. The

Bench delivered two judgments on the 25th February 2009

and while the two Hon'ble Judges were of the unanimous

opinion that the conviction of the appellant was to be

maintained, a difference of opinion arose as to the sentence

that was to be awarded with Pasayat,J. observing that the case

fell within the category of the rarest of rare cases as the

deceased was a helpless child of tender age and that the

appellant, being a watchman in the building in which she was

residing with her parents, was in a position of trust, and as

the murder and rape was particularly brutal, the death

sentence was the only adequate one. Ganguli, J. however

differed on this aspect and held that as there was some 5

uncertainty with the nature of the circumstantial evidence and

that the mitigating circumstance particularly the young age of

the appellant and the possibility that he could be

rehabilitated and would not commit any offence later on, could

not be ruled out, and that the statutory obligation cast on the

trial court under Section 235 (2) read with Section 354 (3) of

the Cr.P.C. had been violated inasmuch that the accused had

not been given adequate opportunity to plead on the question

of sentence and also citing a large number of cases including

those of rape and murder of young children, opined that a

sentence of life imprisonment was the proper one. This matter

has, accordingly, been referred to us only on the question of

the sentence.

2. As already mentioned above, both Hon'ble Judges have

relied on a number of cases which are on almost identical

facts in support of their respective points of view. We notice

that there is a very thin line on facts which separates the

award of a capital sentence from a life sentence in the case of

rape and murder of a young child by a young man and the

subjective opinion of individual Judges as to the morality, 6

efficacy or otherwise of a death sentence cannot entirely be

ruled out. It is now well settled that as on today the broad

principle is that the death sentence is to be awarded only in

exceptional cases. Both Hon'ble Judges have relied

extensively on Dhanonjoy Chatterjee's case (supra). In this

case the death sentence had been awarded by the trial court

on similar facts and confirmed by the Calcutta High Court and

the appeal too dismissed by this Court leading to the

execution of the accused. Ganguli,J. has, however, drawn a

distinction on the facts of that case and the present one and

held that as the appellant was a young man, only 27 years of

age, it was obligatory on the trial court to have given a finding

as to a possible rehabilitation and reformation and the

possibility that he could still become a useful member of

society in case he was given a chance to do so. We are,

therefore, of the opinion that in the light of the findings

recorded by Ganguli,J. it would not be proper to maintain the

death sentence on the appellant. At the same time the gravity

of the offence, the behaviour of the appellant and the fear and

concern such incidents generate in ordered society, cannot be 7

ignored. We, therefore, feel that a via-media ought to be

adopted in the light of the judgment of this Court in Ramraj

vs. State of Chhattisgarh (2010) 1 SCC 573 and Mulla &

Anr. State of Uttar Pradesh (2010) 3 SCC 508. In these

two cases, this Court has held that the term imprisonment for

life which is found in Section 302 of the IPC, would mean

imprisonment for the natural life of the convict subject to the

powers of the President and the Governor under Articles 72

and 161 of the Constitution of India or of the State

Government under Section 433-A of the Code of Criminal

Procedure. In Mulla's case (supra), this Court has said :

"We are in complete agreement with the above dictum of this Court. It is open to the sentencing court to prescribe the length of incarceration. This is especially true in cases where death sentence has been replaced by life imprisonment. The court should be free to determine the length of imprisonment which will suffice the offence committed. Thus we hold that despite the nature of the crime, the mitigating circumstances can allow us to substitute the death penalty with life sentence.

Here we would like to note that the punishment of life sentence in this case must extend to their full life, subject to any remission by the Government for good reasons.

8 For the foregoing reasons and taking into account all the aggravating and mitigating circumstances, we confirm the conviction, however, commute the death sentence into that of life imprisonment. The appeal is disposed of accordingly."

In arriving at its conclusion, the Court relied on similar

observations made in the case of Ramraj (supra). We are,

therefore, of the opinion that the appellant herein ought to be

awarded a similar sentence. We accordingly commute the

death sentence awarded to him to life but direct that the life

sentence must extend to the full life of the appellant but

subject to any remission or commutation at the instance of the

Government for good and sufficient reasons.

3. As already noticed above, Ganguli, J. has made some

observations on the omission of the trial court in dealing with

the question of sentence on the principles underlying Section

235 read with Section 354 of the Cr.P.C. We are of the opinion

that some of the observations made are a little broad based on

the facts of the present case and would present

insurmountable practical difficulties for a trial court. Even 9

otherwise the facts indicate that the appellant had been given

enough time and opportunity for pleading on the question of

sentence. We accordingly dispose of this appeal in the above

manner.

.....................................J. ( HARJIT SINGH BEDI)

.....................................J. ( P. SATHASIVAM )

.......................................J. (CHANDRAMAULI KR. PRASAD )

January 24, 2011.

New Delhi.