Rameshbhai Chandubhai Rathod vs State Of Gujarat

1. A large number of cases in recent times coming before this Court involving rape and/or murder of girls of tender age is a matter of concern. In the instant case the victim who had not seen even ten summers in her life is the victim of sexual assault and animal lust of the accused appellant. She was not only raped but was murdered by the accused appellant. The accused was found guilty for offences punishable under Sections 363, 366, 376, 397 and 302 of the Indian Penal Code, 1860 (in short the `IPC'). He was sentenced to 7 years, 10 years, imprisonment for life, 7 years and death sentence for the aforesaid offences. Conviction was recorded and sentences were imposed by learned Additional Sessions Judge, Fast Track Court No.9, Surat. In view of the award of the death sentence reference was made under Section 366 of the Code of Criminal Procedure, 1973 (in short the `Code'). The accused appellant had also preferred an appeal which was dismissed by the impugned judgment. Both the confirmation case and the criminal appeal were disposed of. Death sentence was confirmed while the criminal appeal was dismissed.

25. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.

41. The appeal fails and is dismissed.

25. It appears therefore, the appellant has retracted his confession.

38. There are vital differences in the facts of the two cases. In the present case, there is no allegation that the appellant ever misbehaved with the deceased.

40. Here the facts are totally different.

42. Third point of difference is with respect to the behaviour of Dhananjoy after the crime.

48. Thus, these items connected unerringly Dhananjoy with the crime and are crucial in nature.

49. There is no such evidence in this case.

(Emphasis added)

(Emphasis supplied)

66. In my judgment both those two Sections supplement each other and in a case where death penalty is imposed, both the Sections must be harmoniously and conjointly appreciated and read.

82. 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 justice.

92. 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 ruthlessness'.

106.For the reasons discussed above and in view of mitigating circumstances and the law laid down in Bachan Singh (supra) and the various gaps in the prosecution evidence, pointed hereinabove, death sentence cannot be awarded to the appellant as in my view it does not come under the `rarest of rare cases'. Apart from that in the case of the appellant proper sentencing procedure was not followed by the trial Court and the Hon'ble High Court erred by approving the same. But I do not agree with his conviction on charges of robbery which, in my opinion, was not proved and on the alleged conviction on robbery no sentence was awarded to the appellant.

107.I agree with His Lordship that the appellant has to be convicted on other charges. However, his conviction does not automatically lead to his death sentence.

108.In my humble opinion instead of death sentence a sentence of rigorous imprisonment for life will serve the ends of justice.

109.With the aforesaid modification on the sentence the appeal is dismissed to the extent indicated above.