Case: Rameshbhai Chandubhai Rathod Vs. State of Gujarat

The complainant i.e. Nareshbhai Thakorebhai Patel is residing in flat No. A/2 of Sanudip Apartment, located on Rander Road of Surat City, with his family. On the Ground Floor of the apartment, he is running a grocery shop as well as a STD PCO Booth. The name of his wife is Ms. Kailashben. They were blessed with two children. The eldest is boy named Brijesh who was aged about 16 years at the time of incident. The deceased was student of IVth Standard, in Ankur School, situated near Sardar Circle, Surat, whereas son of the complainant was prosecuting studies in Swaminarayan Gurukul and was staying in hostel of Swaminarayan Temple. The appellant was employed as Watchman of Sanudip Apartment and was residing with his wife Savita and two children in a room of the apartment which is opposite Sanudip Apartment. The incident took place on December 17, 1999. The complainant with his wife, Ms. Kailashben, went to Udhana at about 8 PM to attend a religious ceremony. After return from Udhana, the complainant did not find the victim. Therefore, he made inquiries about the victim from his relatives. Those staying in the apartment informed the complainant that sometime before his return from Udhana, the deceased was playing badminton, but they were not knowing as to where she had gone. The complainant made extensive search about his daughter of tender age but in vain. At about 2.30 AM on December 18, 1999, he lodged complaint with Rander Police Station, stating that the victim was missing. The information given by the complainant was recorded by Head Constable Ramdas Barko Borde, who was PSO of the Police Station. Head Constable Borde handed over investigation of complaint lodged by the complainant to ASI Mr. Ashokbhai H. Patil. After lodging the complaint, the complainant continued search of the victim. On December 18, 1999, one Mr. Bipinbhai Bhandari, who is a friend of the complainant, came to the house of the complainant and informed the complainant that his old servant, Vishnubhai, had informed him that he had spotted the appellant taking the deceased with him on his cycle. Mr. Bipinbhai also informed the complainant that he was told by Vishnubhai that he had shouted at the appellant but the appellant had not stopped. On learning these facts, the complainant started search of the appellant, who was employed as Watchman of the apartment. The complainant also informed the police as to what was conveyed to him by his friend Mr. Bipinbhai Bhandari. Extensive search about the victim and the appellant did not yield any result on December 18, 1999. Mr. Chandravadan Naginbhai Patel, who is brother-in-law of the complainant, stayed at.the house of complainant in the night of December 18, 1999. In the morning of December 19, 1999, while going home to take a bath, Mr. Chandravadan Patel spotted the appellant sitting in an open space near vegetable market. Mr. Chandravadan asked the appellant as to where the victim was. Thereupon, the appellant informed M Chandravadan that he had raped the victim and killed her. Therefore, Mr. Chandravadan brought the appellant to the house of the complainant. On being asked, the appellant informed the complainant and others, who had collected near the house of the complainant, that he had taken the deceased on December 17, 1999 with him on his bicycle and raped her and as he had feared that she would disclose the incident to others, he had killed her. Thereupon, the complainant informed the police, who arrived at the house of the complainant within no time. The appellant took the complainant and police to the place of incident where dead body of the deceased was found lying. The complainant, thereupon, lodged First Information Report about rape of his daughter and her murder, against the appellant on December 19, 1999. On the basis of complaint of the complainant, offences were registered against the appellant. The complaint of the complainant was investigated by PI SA Desai, who held inquest on the dead body of the deceased and made arrangements for sending the same to hospital for postmortem examination. From the place of incident, a broken bottle containing Castor oil and a knife, were recovered. The appellant was arrested and pursuant to disclosure statement made by him, the cycle used by him, for carrying the deceased to the place of incident, and school-bag of the deceased, containing gold and silver ornaments, were recovered. Silver and gold ornaments recovered from the school-bag were identified by mother of the deceased as belonging to the deceased. PI Desai recorded statements of those persons who were supposed to be conversant with the facts of the case. Incriminating articles seized during the course of investigation were sent to Forensic Science Laboratory (in short the `FSL) for analysis. The post-mortem examination of the body of the deceased indicated that the deceased was subjected to rape and was, thereafter, murdered. The appellant, who was arrested, was forwarded to Dr. Meghrekhaben Mehta for Medical Examination. Before Dr. Megrekhaben Mehta, the appellant stated that he had sustained injuries while committing rape and murder. On completion of investigation, the appellant was charge-sheeted in the Court of learned Chief Judicial Magistrate, Surat, for commission of offences punishable under Sections 363, 366, 376, 302 and 397 IPC. As the offences punishable under Sections 366, 376, 397, 302 are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Surat for trial, where it was numbered as Sessions Case No. 79 of 2000Since the accused persons pleaded innocence trial was held. Thirty four witnesses were examined. In addition, certain documents were placed on record. The case primarily was based on circumstantial evidence as there was no eye witness. The circumstances highlighted by the trial Court and the High Court are as follows:1. The first circumstance is that the deceased was raped and she died a homicidal death2. The second circumstance is that the deceased victim who was aged about 10 years was residing with her parents in flat No.A/2 of Sanudip Apartment located on Rander Road of Surat City3. The third circumstance is that the appellant was serving as a Watchman since long and he was residing with his family in a room located on ground floor of Happy Home Apartments situated opposite Sanudip Apartment, Surat4. The fourth circumstance is that the accused appellant had won the confidence of the victim as a result of which the victim had reposed confidence in the appellant5. The fifth circumstance which is sought to be proved is that between 8.45 p.m. and 9.00p.m. on December 17, 1999 the appellant was last seen playing badminton with the deceased in Sanudip Apartment6. The sixth circumstance which is sought to be proved is that the on December 19, 1999 at about 10.30 p.m. the parents of the victim returned home and found that the deceased was missing7. The seventh circumstance which is sought to be relied upon by the prosecution is that between 9.00 p.m. and 9.30 p.m on December 17, 1999 Vishnubhai Bahadur (PW-24) had seen the appellant taking the deceased on his cycle near Adajan Patia, Surat8. The eighth circumstance is that after PW-24 had disclosed before Shankarbhai (PW-6) and others that he had seen the appellant going on a cycle towards Jakat-Naka with the deceased, a search was made and appellant was found missing9. The next circumstance which is sought to be relied upon by the prosecution is that in the morning of December 1999 witness Chandravadan who was going home had seen the accused sitting at an open place near Bhulka Bhavan School and had approached the appellant and on enquiry being made the appellant had made extra judicial confession before him at that time10. The other circumstance which is sought to be proved by the prosecution is that on arrival of police at Sanudip Apartment after being informed by complainant Nareshbhai the appellant had shown the place of incident where the dead body of the deceased was found lying11. The next circumstance is that at the instance of the accused appellant his cycle and school bag of the deceased were recovered and school bag was found containing anklets and earrings belonging to the deceased12. Human Blood was found from T-shirt of the accused and no explanation was offered by the appellant as to how human blood was found on his T-shirtThe High Court found the circumstances to be credible, cogent and reliable. The High Court while referring the circumstances as noted by the High Court upheld the conviction. It did not find any substance in the plea of the accused appellant that the evidence of the child witness (PW-17) cannot be relied upon and the extra judicial confession cannot also be relied upon as police was present. The concept of last seen together cannot be pressed into service in the instant case as PW-24 was not sure of the date or the time. Additionally, it was submitted that in a case where circumstantial evidence is the foundation for conclusion of guilt the death sentence cannot be awarded. The High Court noted that the evidence of the child witness PW-17 after careful analysis has been found to be acceptable and, therefore there is no infirmity in the conclusion of the High Court. Similarly, the plea relating to the extra judicial confession was also not accepted. The High Court held that several witnesses have seen the accused and the deceased together in close proximity time at the time of occurrence and, therefore, the accused was required to explain the circumstances as to how immediately thereafter the deceased was found to be dead. Therefore, the appeal filed by the accused appellant was dismissed and the death sentence awarded was confirmed and other sentences and the conviction as recorded were confirmed

Reasoning: 69. From the records, it does not appear that adequate and effective hearing was given to the accused by the trial court on the aforesaid basis before imposing the death sentence on him. It appears that the Additional Sessions Judge, 9th Fast Track Court, Gujarat returned a finding of guilt of the present appellant on 18.5.2005 and on that day itself allegedly heard the appellant on the sentence and imposed death sentence on that day. Unfortunately that is not the purpose of Section 235(2) of the Code70. Section 235(2) as interpreted by this Court in Bachan Singh (supra), and quoted above, provides for a `bifurcated trial. It gives the accused (i) a right ofe hearing, on which he can (ii) bring on record material or evidence which may not be (iii) strictly relevant to or connected with the particular crime but (iv) may have a bearing on the choice of sentence. Therefore it has to be a regular hearing like a trial and not a mere empty formality or an exercise in an idle ritual. In view of the mitigating circumstances endorsed in Bachan Singh (supra) the State must prove, by adducing evidence, that accused does not satisfy clause (3) and (4) of the circumstances mentioned in paragraph 204 (page 944 of the report) as those mitigating circumstances were accepted in para 205 (page 944 of the report) in Bachan Singh (supra)71. Here prosecution has not discharged any burden at all for less the burden referred to above. This is a statutory obligation which is cast on the Court in a case where both Sections 235(2) read with Section 354(3) apply in view of the law laid down in Bachan Singh (supra). The mandate of Article 141 of the Constitution cannot be ignored either by the trial Court or the High Court72. Therefore, regardless of whether the accused asks for such a hearing, the same must be offered to the accused and an adequate opportunity for bringing materials on record must be given to him especially in case where Section 354(3) comes into play. It is only after undertaking that exercise that `special reasons for imposing death penalty can be recorded by the Court73. In the order imposing death sentence, the learned trial Judge has not even once referred to Section 354(3) of the Code. Therefore, the imposing of death sentence by the learned trial Court is wholly illegal and contrary to the provisions of the Code of Criminal Procedure and contrary to the law laid down by this Court in Bachan Singh (supra)75. Relying on the principles laid down in Bachan Singh in Allauddin Mian Vs. State of Bihar(1989) 3 SCC 5 , the Supreme Court deprecated the practice of the trial Court which, after recording the finding of guilt and before the accused could "absorb and overcome the shock of conviction" asked the accused to say on the question of sentence. In the instant case, the same procedure was adopted as pointed out in Para 67 herein above. The learned Judges held that by doing so the purpose of Section 235(2) is not served79. In Arshad v. State of Karnataka(1994) 4 SCC 383, this Court through Justice Anand (as his Lordship was then) again deplored the practice of proving guilt and sentencing on the same day. In that case, both was done on2 itself and by a cryptic order. This Court held that the objective for which Section 235(2) was brought into the Code was completely ignored by the Session Judge and the Learned Judge disapproved the sentencing procedure in a cryptic manner. It was held that it exposes the lack of sensitiveness on the part of the Court in dealing with such cases. (Para 17, pg. 389 of report)80. The High Court, unfortunately as the first appellate Court, both on facts and in law, has confirmed the death sentence without pointing out these glaring illegalities in sentencing procedure of the trial Court and especially in a case where a death penalty has been imposed82. Unfortunately in this case High Court failed to correct the flawed sentencing procedure followed by the trial Court and erred in law by confirming the death sentence which led to an obvious miscarriage of justice83. The challenge to the constitutionality of death sentence was repelled in Bachan Singh (supra) only in view of the legislative safeguards given in the sentencing policy in the aforesaid provisions of Sections 235(2) and 354(3) of the Code. The Court has held that such procedure "cannot, by any reckoning, be said to be unfair, unreasonable and unjust" (para 167, page 937)84. Thus, it appears that this Court upheld the constitutionality of death penalty on the aforesaid doctrine of `due process which has been introduced in our constitutional jurisprudence in the case of Smt. Maneka Gandhi Vs. Union of India and anotherAIR 1978 SC 597 85. By repeatedly referring to the dicta in Maneka Gandhi (supra), the majority judgment in Bachan Singh (supra) upheld the vires of the provisions of Indian Penal Code on death penalty in view of the reasonable, fair and just procedures which are provided in the sentencing policy by those Sections in the Criminal Procedure Code (paras 135 and 136, page 930 of the report)86. Similarly in Furman V. Georgia408 U.S. 238 (1972), U.S. Supreme Court impliedly overruled its earlier decision in McGautha V. California402 U.S. 183, 196 (1971). In this context it may be mentioned that in nine separate opinions the learned Judges struck down in Furman Vs. Georgia by a majority of, the death penalty statutes at issue as cruel and unusual in view of the denial of the `due process guaranteed by the Fourteenth Amendment87. Learned Judges in Furman observed that the sentencing policy was not properly structured and, therefore, it causes denial of Fundamental Rights88. The Supreme Court in Bachan Singh (supra) also insisted on the importance of structured sentencing policy in death sentence cases to uphold its validity and held that structured sentencing policy has been achieved in view of the aforesaid two provisions, namely, Section 354(3) and Section 235(2) of the Code89. Therefore fairness, justice and reasonableness which constitute the essence of guarantee of life and liberty epitomized in Article 21 of the Constitution also pervades the sentencing policy in Sections 235(2) and 354(3) of the Code. Those two provisions virtually assimilate the concept of "procedure established by law" within the meaning of Article 21 of the Constitution90. Thus, a strict compliance with those provisions in the way it was interpreted in Bachan Singh (supra) having regard to the development of constitutional law by this Court, is a must before death sentence can be imposed91. While I fully share my learned Brothers anxiety about the expectation of society to the adequacy of the sentence to the nature of the crime, at the same time, we cannot be oblivious of the person who is alleged to have committed the crime and his rights under a fair and structured sentencing policy. This Court laid down in Bachan Singh (supra) that before imposing death sentence, an abiding concern for the dignity of human life must be shown by Court92. We must recognize that `cry for justice is not answered by frequent awarding of death sentence on a purported faith on `deterrence creed. Before choosing the option for death sentence, the Court must consciously eschew its tendency of `retributive ruthlessness93. In Bachan Singh (supra), the majority opinion warned in paragraph 125, page 927:"that Judges should not take upon themselves the responsibility of becoming oracles or spokemen of public opinion: Not being representatives of the people, it is often better, as a matter of judicial restraint, to leave the function of assessing public opinion to the chosen representatives of the people in the legislature concerned94. Therefore, this Court cannot afford to prioritise the sentiments of outrage about the nature of the crimes committed over the requirement to carefully consider whether the person committing the crime is a threat to the society. The Court must consider whether there is a possibility of reform or rehabilitation of the man committing the crime and which must be at the heart of the sentencing process. It is only this approach that can keep imposition of death sentence within the `rarest of the rare cases95. The expression `rarest of rare cases is not to be read as a mere play on words or a tautologous expression96. In upholding the constitutional validity of capital punishment, the Constitution Bench of this Court used that expression in Bachan Singh in order to read down and confine the imposition of capital punishment to extremely limited cases. This is a very loaded expression and is not to trifled with. It is pregnant with respect for the inviolability of human life. That is why the word `rare has been used twice and once in a superlative sense. Therefore, the significance of this expression cannot be watered down on a perceived notion of a `cry for justice97. I now propose rely on a few decisions to show how this expression `rarest of rare case has been interpreted by this Court even where the accused was found guilty of both murder and rape and death sentence was awarded by the trial Court and the High Court confirmed it98. In the case of Chaman Vs. Stae of NCT(2001) 2 SCC 28 , the Court after finding the commission of crime held that a girl of 1 and = years was raped and killed but did not approve of the death sentence imposed on him by the Courts below and imposed on him a life sentence as this Court found that the appellant is not a dangerous person to endanger the society and the case is not coming within the parameters of the `rarest of rare case99. In the case of Bantu @ Naresh Giri Vs. State of Uttar PradeshAIR 2002 S.C. 70, the accused was sentenced to death for the rape and murder of a 6 year old child. In Para 8 of the said judgment, the Learned judges after considering the age of the accused and also the fact that he did not have any past criminal record held that the accused will not be a grave danger to society and further held that the case does not fall under the rarest of rare cases and death sentence was commuted to life sentence100. In Surendra Pal Singh Vs. State of Gujarat(2005) 3 SCC 127 , a minor girl was raped and killed and the Sessions Court imposed death penalty and the High Court of Gujarat also affirmed the same. But this Court found that the case does not fall under the rarest of rare cases and considering that the appellant was 36 years old and has no previous criminal record, held that he was not a menace to society. This Court held that it was not a rarest of rare cases and confirmed the conviction but commuted the sentence from death sentence to life imprisonment101. In Amrit Singh Vs. State of PunjabAIR 2002 SC 132 , the accused was found guilty of rape of a minor girl and also of her death. Death occurred not as a result of strangulation but due to excessive bleeding from her private parts. In that case, the Trial Court sentenced the accused to death sentence which was confirmed by the High Court of Punjab and Haryana in a reference proceeding before it102. In para 21 of page 136 of the judgment, this Court held that the imposition of death sentence in such cases was improper and it cannot be put in the category of rarest of rare cases and the Court imposed a sentence of rigorous imprisonment for life on that ground103. In the case of Kulwinder Singh Vs. State of PunjabAIR 2007 SC 2868 , Hardip Kaur was found to have been raped by the accused and on her protest, she was found to have been strangulated as a result of which she died. Another person, Joginder Kaur also died in the same incident as a result of injuries received from gandashi blows inflicted on the neck by the accused. In that case, the death sentence was commuted to imprisonment for life as the Court found that it cannot be brought in the category of rarest of rare cases104. Keeping these principles in mind, I find that in the instant case the appellant is a young man and his age was 28 years old as per the version in the. He is married and has two daughters. He has no criminal antecedents, at least none has been brought on record. His behaviour in general was not objectionable and certainly not with the deceased girl prior to the incident. The unfortunate incident is possibly the first crime committed by the appellant. He is not otherwise a criminal. Such a person is not a threat to the society. His entire life is ahead of him105. Before I conclude, if I may quote a few lines from Sir Winston Churchill about Crime and Punishment and which have been quoted by C.H. Rolph in "Commonsense about Crime and Punishment, page 175". Those matchless words of Sir Winston Churchill are as under:"The mood and temper of the public with regard to the treatment of crime and criminals is one of the unfailing tests of the civilization of any country. A calm, dispassionate, recognition of the rights of the accusedand even of the convictedcriminal against the State; a constantg by all charged with the duty of punishment; a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment; tireless efforts towards the discovery of curative and regenerative processes; unfailing faith that there is a treasure, if you can only find it, in the heart of every man; these are the symbols which in the treatment of crime and criminal, mark and measure thep strength of a nation, and are sign and proof of the living virtue in it".