Rameshbhai Chandubhai
Rathod Vs. State of Gujarat [2009] INSC 828 (27 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 575 OF 2007
Rameshbhai Chandubhai Rathod ..Appellant Versus State of Gujarat ..Respondent
Dr. ARIJIT PASAYAT,
J.
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.
2.
Prosecution
version as unfolded during trial is as follows:
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 2000.
Since 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 death.
2. 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 City.
3. 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, Surat.
4. 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 appellant.
5. 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 Apartment.
6. 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
missing.
7. 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,
Surat.
8. 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 missing.
9. 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 time.
10. 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 lying.
11. 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 deceased.
12. 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-shirt.
The 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.
3.
The
stand taken before the High Court was re-iterated in this Court.
4.
It
is to be noted that the circumstances highlighted by the trial Court and analysed
in detail by the High Court unerringly point at the accused to be author of the
crime in the present case.
5.
So
far as the last seen aspect is concerned PWs 4, 5, 6, 17 and 24 had
categorically stated that the deceased was seen in the company of the accused
just before the time of death. Additionally, the extra judicial confession was
not recorded in the presence of the police. It is clear from the evidence of
the witnesses that when the first confession was recorded police personnel were
not present. So far as the evidence of PW-24 regarding the last seen aspect is
concerned his evidence has to be read alongwith the evidence of PWs 5 and 6.
Though PW-17 was a child witness nevertheless the Court has taken care of
analyzing his evidence after being satisfied that child was speaking the truth.
6.
So
far as the last seen aspect is concerned it is necessary to take note of two
decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114] it was
noted as follows:
"22. The last
seen theory comes into play where the time-gap between the point of time when
the accused and the deceased were seen last alive and when the deceased is
found dead is so small that possibility of any person other than the accused
being the author of the crime becomes impossible. It would be difficult in some
cases to positively establish that the deceased was last seen with the accused
when there is a long gap and possibility of other persons coming in between
exists. In the absence of any other positive evidence to conclude that the
accused and the deceased were last seen together, it would be hazardous to come
to a conclusion of guilt in those cases. In this case there is positive
evidence that the deceased and the accused were seen together by witnesses PWs.
3 and 5, in addition to the evidence of PW-2."
7.
In
Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted
as follows:
"27. The
last-seen theory, furthermore, comes into play where the time gap between the
point of time when the accused and the deceased were last seen alive and the
deceased is found dead is so small that possibility of any person other than
the accused being the author of the crime becomes impossible. Even in such a
case the courts should look for some corroboration".
(See also Bodh Raj v.
State of J&K (2002(8) SCC 45).)"
8.
A
similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC
438], Kusuma Ankama Rao v State of A.P. (2008(9) SCALE 652) and in Manivel
& Ors. v. State of Tamil Nadu ( 2008(5) Supreme 577).
9.
In
Joseph and Poulo v. State of Kerala [2000(5) SCC 197] it was, inter alia, held
as follows:
"The formidable
incriminating circumstances against the appellant, as far as we could see, are
that the deceased was taken away from the convent by the appellant under a
false pretext and she was last seen alive only in his company and that it is on
the information furnished by the appellant in the course of investigation that
jewels of the deceased which were sold to PW 11 by the appellant, were
seized."
"The
incriminating circumstances enumerated above unmistakably and inevitably lead
to the guilt of the appellant and nothing has been highlighted or brought on
record to make the facts proved or the circumstances established to be in any
manner in consonance with the innocence at any rate of the appellant. During
the time of questioning under Section 313 Cr.P.C. the appellant instead of
making at least an attempt to explain or clarity the incriminating
circumstances inculpating him, and connecting him with the crime by his adamant
attitude of total denial of everything when those circumstances were brought to
his notice by the Court not only lost the opportunity but stood self-condemned.
Such incriminating links of facts could, if at all, have been only explained by
the appellant, and by nobody else, they being personally and exclusively within
his knowledge. Of late, courts have, from the falsity of the defence plea and
false answers given to court, when questioned, found the missing links to be
supplied by such answers for completing the chain of incriminating
circumstances necessary to connect the person concerned with the crime
committed.(See: State of Maharashtra v. Suresh). That missing link to connect
the accused appellant, we find in this case provided by the blunt and outright
denial of every one and all that incriminating circumstances pointed out which,
in our view, with sufficient and reasonable certainty on the facts proved,
connect the accused with the death and the cause of the death of Gracy and for
robbing her of her jewellery worn by her -- MOs 1 to 3, under Section 392. The
deceased meekly went with the accused from the Convent on account of the
misrepresentation made that her mother was seriously ill and hospitalised
apparently reposing faith and confidence in him in view of his close
relationship -- being the husband of her own sister, but the appellant seems to
have not only betrayed the confidence reposed in him but also took advantage of
the loneliness of the hapless woman. The quantum of punishment imposed is
commensurate with the gravity of the charges held proved and calls for no
interference in our hands, despite the fact that we are not agreeing with the
High Court in respect of the findings relating to the charge under Section 376.
10.
In
Damodar v. State of Karnataka [2000 SCC (Crl) 90] it was, inter alia, observed
as follows:
11.
"From
the evidence of PWs. 1,6,7 & 8 the prosecution has satisfactorily
established that the appellant was last seen with the deceased on 30.4.91. The
appellant either in his Section 313 Cr.P.C. statement or by any other evidence
has not established when and where he and the deceased parted company after
being last seen."
12.
Before
analyzing factual aspects it may be stated that for a crime to be proved it is
not necessary that the crime must be seen to have been committed and must, in
all circumstances be proved by direct ocular evidence by examining before the
Court those persons who had seen its commission. The offence can be proved by
circumstantial evidence also. The principal fact or factum probandum may be
proved indirectly by means of certain inferences drawn from factum probans,
that is, the evidentiary facts.
To put it differently
circumstantial evidence is not direct to the point in issue but consists of
evidence of various other facts which are so closely associated with the fact
in issue that taken together they form a chain of circumstances from which the
existence of the principal fact can be legally inferred or presumed.
13.
It
has been consistently laid down by this Court that where a case rests squarely
on circumstantial evidence, the inference of guilt can be justified only when
all the incriminating facts and circumstances are found to be incompatible with
the innocence of the accused or the guilt of any other person. (See Hukam Singh
v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad
(AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State
of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab
(AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890).
The circumstances from which an inference as to the guilt of the accused is
drawn have to be proved beyond reasonable doubt and have to be shown to be
closely connected with the principal fact sought to be inferred from those
circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid
down that where the case depends upon the conclusion drawn from circumstances
the cumulative effect of the circumstances must be such as to negative the
innocence of the accused and bring the offences home beyond any reasonable
doubt.
14.
We
may also make a reference to a decision of this Court in C. Chenga Reddy and
Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based
on circumstantial evidence, the settled law is that the circumstances from
which the conclusion of guilt is drawn should be fully proved and such
circumstances must be conclusive in nature. Moreover, all the circumstances
should be complete and there should be no gap left in the chain of evidence.
Further the proved circumstances must be consistent only with the hypothesis of
the guilt of the accused and totally inconsistent with his innocence....".
15.
In
Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down
that when a case rests upon circumstantial evidence, such evidence must satisfy
the following tests:
"(1) the
circumstances from which an inference of guilt is sought to be drawn, must be cogently
and firmly established;
(2) those
circumstances should be of a definite tendency unerringly pointing towards
guilt of the accused;
(3) the
circumstances, taken cumulatively should form a chain so complete that there is
no escape from the conclusion that within all human probability the crime was
committed by the accused and none else; and (4) the circumstantial evidence in
order to sustain conviction must be complete and incapable of explanation of
any other hypothesis than that of the guilt of the accused and such evidence
should not only be consistent with the guilt of the accused but should be
inconsistent with his innocence."
16.
In
State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out
that great care must be taken in evaluating circumstantial evidence and if the
evidence relied on is reasonably capable of two inferences, the one in favour
of the accused must be accepted. It was also pointed out that the circumstances
relied upon must be found to have been fully established and the cumulative
effect of all the facts so established must be consistent only with the
hypothesis of guilt.
17.
Sir
Alfred Wills in his admirable book "Wills' Circumstantial Evidence"
(Chapter VI) lays down the following rules specially to be observed in the case
of circumstantial evidence: (1) the facts alleged as the basis of any legal
inference must be clearly proved and beyond reasonable doubt connected with the
factum probandum; (2) the burden of proof is always on the party who asserts
the existence of any fact, which infers legal accountability; (3) in all cases,
whether of direct or circumstantial evidence the best evidence must be adduced
which the nature of the case admits; (4) in order to justify the inference of
guilt, the inculpatory facts must be incompatible with the innocence of the
accused and incapable of explanation, upon any other reasonable hypothesis than
that of his guilt, (5) if there be any reasonable doubt of the guilt of the
accused, he is entitled as of right to be acquitted".
18.
There
is no doubt that conviction can be based solely on circumstantial evidence but
it should be tested by the touch-stone of law relating to circumstantial
evidence laid down by this Court as far back as in 1952.
19.
In
Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed thus:
"It is well to
remember that in cases where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should be in
the first instance be fully established and all the facts so established should
be consistent only with the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the accused
and it must be such as to show that within all human probability the act must
have been done by the accused."
20.
A
reference may be made to a later decision in Sharad Birdhichand Sarda v. State
of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial
evidence, it has been held that onus was on the prosecution to prove that the
chain is complete and the infirmity of lacuna in prosecution cannot be cured by
false defence or plea. The conditions precedent in the words of this Court,
before conviction could be based on circumstantial evidence, must be fully
established. They are:
(1) the circumstances
from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned must or should and not may be established;
(2) the facts so
established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis
except that the accused is guilty;
(3) the circumstances
should be of a conclusive nature and tendency;
(4) they should
exclude every possible hypothesis except the one to be proved; and (5) there
must be a chain of evidence so compete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must show
that in all human probability the act must have been done by the accused.
21.
One
of the other important circumstances is that the accused appellant had shown
the place of incident where the dead body of the deceased was found lying. At
the instance of the appellant his cycle and school bag of the deceased were
recovered and the school bag was found containing anklets and earrings
belonging to the deceased. Human blood was found on the T-shirt of the accused.
The falsity of defence plea has been regarded as an additional link in the
chain of circumstances. The conviction has therefore been rightly recorded by
the trial Court and affirmed by the High Court.
22.
Coming
to the question of award of death sentence, this has to be considered in the
background of factual scenario.
23.
The
law regulates social interests, arbitrates conflicting claims and demands.
Security of persons
and property of the people is an essential function of the State. It could be
achieved through instrumentality of criminal law. Undoubtedly, there is a cross
cultural conflict where living law must find answer to the new challenges and
the courts are required to mould the sentencing system to meet the challenges.
The contagion of lawlessness would undermine social order and lay it in ruins.
Protection of society and stamping out criminal proclivity must be the object
of law which must be achieved by imposing appropriate sentence. Therefore, law
as a corner-stone of the edifice of "order" should meet the
challenges confronting the society. Friedman in his "Law in Changing
Society" stated that, "State of criminal law continues to be - as it
should be - a decisive reflection of social consciousness of society".
Therefore, in operating the sentencing system, law should adopt the corrective
machinery or the deterrence based on factual matrix. By deft modulation
sentencing process be stern where it should be, and tempered with mercy where
it warrants to be. The facts and given circumstances in each case, the nature
of the crime, the manner in which it was planned and committed, the motive for
commission of the crime, the conduct of the accused, the nature of weapons used
and all other attending circumstances are relevant facts which would enter into
the area of consideration. For instance a murder committed due to deep- seated
mutual and personal rivalry may not call for penalty of death. But an organised
crime or mass murders of innocent people would call for imposition of death
sentence as deterrence. In Mahesh v. State of M.P. (1987) 2 SCR 710), this
Court while refusing to reduce the death sentence observed thus:
"It will be a
mockery of justice to permit the accused to escape the extreme penalty of law
when faced with such evidence and such cruel acts. To give the lesser
punishment for the accused would be to render the justicing system of the
country suspect. The common man will lose faith in courts. In such cases, he
understands and appreciates the language of deterrence more than the
reformative jargon."
24.
Therefore,
undue sympathy to impose inadequate sentence would do more harm to the justice
system to undermine the public confidence in the efficacy of law and society
could not long endure under such serious threats. It is, therefore, the duty of
every court to award proper sentence having regard to the nature of the offence
and the manner in which it was executed or committed etc. This position was
illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil
Naidu (AIR 1991 SC 1463).
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.
26.
Proportion
between crime and punishment is a goal respected in principle, and in spite of
errant notions, it remains a strong influence in the determination of
sentences. The practice of punishing all serious crimes with equal severity is
now unknown in civilized societies, but such a radical departure from the
principle of proportionality has disappeared from the law only in recent times.
Even now for a single grave infraction drastic sentences are imposed. Anything
less than a penalty of greatest severity for any serious crime is thought then
to be a measure of toleration that is unwarranted and unwise. But in fact,
quite apart from those considerations that make punishment unjustifiable when
it is out of proportion to the crime, uniformly disproportionate punishment has
some very undesirable practical consequences.
27.
After
giving due consideration to the facts and circumstances of each case, for
deciding just and appropriate sentence to be awarded for an offence, the
aggravating and mitigating factors and circumstances in which a crime has been
committed are to be delicately balanced on the basis of really relevant
circumstances in a dispassionate manner by the Court. Such act of balancing is
indeed a difficult task. It has been very aptly indicated in Dennis Councle MCG
Dautha v. State of California: 402 US 183: 28 L.D. 2d 711 that no formula of a
foolproof nature is possible that would provide a reasonable criterion in
determining a just and appropriate punishment in the infinite variety of
circumstances that may affect the gravity of the crime. In the absence of any
foolproof formula which may provide any basis for reasonable criteria to
correctly assess various circumstances germane to the consideration of gravity
of crime, the discretionary judgment in the facts of each case, is the only way
in which such judgment may be equitably distinguished.
28.
In
Jashubha Bharatsinh Gohil v. State of Gujarat (1994 (4) SCC 353), it has been
held by this Court that in the matter of death sentence, the Courts are
required to answer new challenges and mould the sentencing system to meet these
challenges.
The object should be
to protect the society and to deter the criminal in achieving the avowed object
to law by imposing appropriate sentence. It is expected that the Courts would
operate the sentencing system so as to impose such sentence which reflects the
conscience of the society and the sentencing process has to be stern where it
should be. Even though the principles were indicated in the background of death
sentence and life sentence, the logic applies to all cases where appropriate
sentence is the issue.
29.
Imposition
of sentence without considering its effect on the social order in many cases
may be in reality a futile exercise. The social impact of the crime, e.g. where
it relates to offences against women, dacoity, kidnapping, misappropriation of
public money, treason and other offences involving moral turpitude or moral
delinquency which have great impact on social order, and public interest,
cannot be lost sight of and per se require exemplary treatment. Any liberal
attitude by imposing meager sentences or taking too sympathetic view merely on
account of lapse of time in respect of such offences will be result-wise
counter productive in the long run and against societal interest which needs to
be cared for and strengthened by string of deterrence inbuilt in the sentencing
system.
30.
In
Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC 220), this Court has
observed that shockingly large number of criminals go unpunished thereby
increasingly, encouraging the criminals and in the ultimate making justice
suffer by weakening the system's creditability. The imposition of appropriate
punishment is the manner in which the Court responds to the society's cry for
justice against the criminal. Justice demands that Courts should impose
punishment befitting the crime so that the Courts reflect public abhorrence of
the crime. The Court must not only keep in view the rights of the criminal but
also the rights of the victim of the crime and the society at large while
considering the imposition of appropriate punishment.
31.
Similar
view has also been expressed in Ravji v. State of Rajasthan, (1996 (2) SCC
175). It has been held in the said case that it is the nature and gravity of
the crime but not the criminal, which are germane for consideration of
appropriate punishment in a criminal trial. The Court will be failing in its
duty if appropriate punishment is not awarded for a crime which has been committed
not only against the individual victim but also against the society to which
the criminal and victim belong. The punishment to be awarded for a crime must
not be irrelevant but it should conform to and be consistent with the atrocity
and brutality with which the crime has been perpetrated, the enormity of the
crime warranting public abhorrence and it should "respond to the society's
cry for justice against the criminal". If for extremely heinous crime of
murder perpetrated in a very brutal manner without any provocation, most
deterrent punishment is not given, the case of deterrent punishment will lose
its relevance.
32.
These
aspects have been elaborated in State of M.P. v. Munna Choubey [2005 (2) SCC
712].
33.
In
Bachan Singh v. State of Punjab [1980 (2) SCC 684] a Constitution Bench of this
Court at para 132 summed up the position as follows: (SCC p.729) "132. To
sum up, the question whether or not death penalty serves any penological
purpose is a difficult, complex and intractable issue. It has evoked strong,
divergent views. For the purpose of testing the constitutionality of the
impugned provision as to death penalty in Section 302, Penal Code on the ground
of reasonableness in the light of Articles 19 and 21 of the Constitution, it is
not necessary for us to express any categorical opinion, one way or the other,
as to which of these two antithetical views, held by the Abolitionists and
Retentionists, is correct. It is sufficient to say that the very fact that
persons of reason, learning and light are rationally and deeply divided in
their opinion on this issue, is a ground among others, for rejecting the
petitioners' argument that retention of death penalty in the impugned
provision, is totally devoid of reason and purpose. If, notwithstanding the view
of the Abolitionists to the contrary, a very large segment of people, the world
over, including sociologists, legislators, jurists, judges and administrators
still firmly believe in the worth and necessity of capital punishment for the
protection of society, if in the perspective of prevailing crime conditions in
India, contemporary public opinion channelised through the people's
representatives in Parliament, has repeatedly in the last three decades,
rejected all attempts, including the one made recently, to abolish or
specifically restrict the area of death penalty, if death penalty is still a
recognised legal sanction for murder or some types of murder in most of the
civilised countries in the world, if the framers of the Indian Constitution
were fully aware -- as we shall presently show they were -- of the existence of
death penalty as punishment for murder, under the Indian Penal Code, if the
35th Report and subsequent reports of the Law Commission suggesting retention
of death penalty, and recommending revision of the Criminal Procedure Code and
the insertion of the new Sections 235(2) and 354(3) in that Code providing for
pre-sentence hearing and sentencing procedure on conviction for murder and
other capital offences were before Parliament and presumably considered by it
when in 1972-73 it took up revision of the Code of 1898 and replaced it by the
Code of Criminal Procedure, 1973, it is not possible to hold that the provision
of death penalty as an alternative punishment for murder, in Section 302, Penal
Code is unreasonable and not in the public interest. We would, therefore,
conclude that the impugned provision in Section 302, violates neither the
letter nor the ethos of Article 19."
34.
Similarly,
in Machhi Singh v. State of Punjab [1983 (3) SCC 470] in para 38 the position
was summed up as follows: (SCC p. 489) "38. In this background the
guidelines indicated in Bachan Singh's case (surpa) will have to be culled out
and applied to the facts of each individual case where the question of imposing
of death sentence arises. The following propositions emerge from Bachan Singh's
case (supra):
(i) The extreme
penalty of death need not be inflicted except in gravest cases of extreme
culpability.
(ii) Before opting
for the death penalty the circumstances of the `offender' also require to be
taken into consideration along with the circumstances of the `crime'.
(iii) Life
imprisonment is the rule and death sentence is an exception. In other words
death sentence must be imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the relevant circumstances of
the crime, and provided, and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having regard to the
nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet
of aggravating and mitigating circumstances has to be drawn up and in doing so
the mitigating circumstances have to be accorded full weightage and a just
balance has to be struck between the aggravating and the mitigating
circumstances before the option is exercised."
35.
The
position was again reiterated in Devender Pal Singh v. State of NCT of Delhi [2002
(5)SCC 234 ] : (SCC p. 271, para 58) "58. From Bachan Singh 's case
(supra) and Machhi Singh's case (supra) the principle culled out is that when
the collective conscience of the community is so shocked, that it will expect
the holders of the judicial power centre to inflict death penalty irrespective
of their personal opinion as regards desirability or otherwise of retaining
death penalty, the same can be awarded. It was observed:
The community may
entertain such sentiment in the following circumstances:
(1) When the murder
is committed in an extremely brutal, grotesque, diabolical, revolting, or
dastardly manner so as to arouse intense and extreme indignation of the
community.
(2) When the murder
is committed for a motive which evinces total depravity and meanness; e.g.
murder by hired assassin for money or reward; or cold-blooded murder for gains
of a person vis-`-vis whom the murderer is in a dominating position or in a
position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When murder of a
member of a Scheduled Caste or minority community, etc. is committed not for
personal reasons but in circumstances which arouse social wrath; or in cases of
`bride burning' or `dowry deaths' or when murder is committed in order to
remarry for the sake of extracting dowry once again or to marry another woman
on account of infatuation.
(4) When the crime is
enormous in proportion. For instance when multiple murders, say of all or
almost all the members of a family or a large number of persons of a particular
caste, community, or locality, are committed.
(5) When the victim
of murder is an innocent child, or a helpless woman or old or infirm person or
a person vis-`-vis whom the murderer is in a dominating position, or a public
figure generally loved and respected by the community."
36.
If
upon taking an overall global view of all the circumstances in the light of the
aforesaid propositions and taking into account the answers to the questions
posed by way of the test for the rarest of rare cases, the circumstances of the
case are such that death sentence is warranted, the court would proceed to do
so.
37.
What
is culled out from the decisions noted above is that while deciding the
question as to whether the extreme penalty of death sentence is to be awarded,
a balance sheet of aggravating and mitigating circumstances has to be drawn up.
38.
The
plea that in a case of circumstantial evidence death should not be awarded is
without any logic. If the circumstantial evidence is found to be of
unimpeachable character in establishing the guilt of the accused, that forms
the foundation for conviction. That has nothing to do with the question of
sentence as has been observed by this Court in various cases while awarding
death sentence. The mitigating circumstances and the aggravating circumstances
have to be balanced. In the balance sheet of such circumstances, the fact that
the case rests on circumstantial evidence has no role to play. In fact in most
of the cases where death sentence are awarded for rape and murder and the like,
there is practically no scope for having an eye witness. They are not committed
in the public view. But very nature of things in such cases, the available
evidence is circumstantial evidence. If the said evidence has been found to be
credible, cogent and trustworthy for the purpose of recording conviction, to
treat that evidence as a mitigating circumstance, would amount to consideration
of an irrelevant aspect. The plea of learned counsel for the appellant that the
conviction is based on circumstantial evidence and, therefore, the death
sentence should not be awarded is clearly unsustainable.
39.
The
case at hand falls in the rarest of rare category. The circumstances
highlighted establish the depraved acts of the accused and they call for only
one sentence i.e. death sentence.
40.
40.Looked
at from any angle the judgment of the High Court confirming the death sentence
does not want any interference.
41.
The
appeal fails and is dismissed.
..................................J.
(Dr. ARIJIT PASAYAT)
..................................J.
(ASOK KUMAR GANGULY)
New
Delhi,
April
27, 2009
REPORTABLE IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 575
OF 2007 Rameshbhai Chandubhai Rathod ..Appellant Versus State of Gujarat
..Respondent
Dr. ARIJIT PASAYAT,
J.
Though both of us
have agreed that conviction is to be maintained, one of us Pasayat, J has
confirmed the death sentence while Ganguly, J has held that life sentence is to
be given. The matter is referred to a larger bench only on the question of
sentence. The matter be placed before Hon'ble the Chief Justice of India for
necessary orders.
..................................J.
(Dr. ARIJIT PASAYAT)
........................................J.
(ASOK KUIMAR GANGULY)
New
Delhi,
April
27, 2009
REPORTABLE IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.575
OF 2007 Rameshbhai Chandubhai Rathod .Appellant(s) - Versus - State of Gujarat
Respondent(s)
Ganguly, J
1. I have gone
through the judgment prepared by My Lord Hon'ble Dr. Justice Pasayat, but I
have not found myself in entire agreement with the conclusions reached by His
Lordship. I need hardly say that it is only with great respect to His Lordship
that I venture to express a divergent opinion on the sentence and I consider it
my sacred duty as a judge to do so. In my view in this case death penalty
cannot be inflicted on the appellant.
2. From the judgment
of His Lordship, it appears that the case against the appellant rests on
circumstantial evidence. Those circumstances have been noted by the Hon'ble
High Court and adverted to by His Lordship in the judgment. Twelve
circumstances have been noted and they are as follows:- I. The 1st circumstance
is that the deceased was raped and she died a homicidal death.
II. The 2nd
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 City.
III. The 3rd
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, Surat.
IV. The 4th
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 appellant.
V. The 5 th
circumstance which is sought to be proved is that between 8.45 p.m. and 9.00
p.m. on December 17, 1999 the appellant was last seen playing badminton with
the deceased in Sanudip Apartment.
VI. The 6th
circumstance which is sought to be proved is that on December 17, 1999 at about
10.30 p.m. the parents of the victim returned home and found that the deceased
was missing.
VII. The 7th
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,
Surat.
VIII. The 8 th
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 missing.
IX. The next
circumstance which is sought to be relied upon by the prosecution is that in
the morning of December 19, 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 time.
X. 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 lying.
XI. 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 deceased.
XII. 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-shirt.
3. On going through
those circumstances, to my mind, the first three circumstances, by themselves,
do not fasten any guilt on the appellant. In conjunction with other
circumstances they may be relevant. However the 4th, 5th, 7th, 8th, 9th, 10th,
11th and 12th circumstances might have been considered relevant by His Lordship
for bringing home the guilt of the appellant and then bringing the case within
the rarest of rare cases, a AIR 1980 SC 898, by this Court for imposing death
penalty.
4. Since I differ
with His Lordship on the question of inflicting the death penalty on the
appellant, I propose to consider the evidence leading onto some of those
circumstances.
5. To prove the
fourth circumstance, the prosecution examined witness Kailashben, who is the
mother of the deceased. Kailashben deposed that the appellant used to take the
victim to school on his cycle and leave her at school when the rickshawallah
failed to turn up to take her to school. The same version has been given by another
witness, Chandravadan Nagin Bhai Patel (PW.4). The High Court has also noted
that the appellant, in his written statement had stated that the deceased would
occasionally play with his daughter and come to his room and that he never
misbehaved with the deceased. These pieces of evidence cannot be said to fasten
any guilt on the appellant.
However, the High
Court on appreciation of these pieces of evidence came to the conclusion that
the prosecution proved that the appellant had enticed the victim to come with
him and the fact that the appellant took the victim on the bicycle on December
17, 1999 becomes "plausible and acceptable".
6. Therefore, the
High Court's conclusions on the 4th circumstance are not very definite.
The High Court itself
considered its conclusion in respect of the 4 the circumstance a `plausible
one'. Imposition of death sentence by considering one of the circumstances
which High Court finds `plausible' is, to my mind, in defiance of any reasoning
which brings a case within the category of the `rarest of rare cases'.
7. In proving the 5th
circumstance, the prosecution relied heavily on evidence of the child witness,
namely Darshanaben. When she deposed, before the Court in 2004, she was 17
years old. The incident happened in 1999 and at that time, she must have been
12 years old.
8. In the
examination-in-chief, she stated that she went to Sanudip Apartments between 8
and 8:30 p.m., she and the deceased were playing badminton. At that time, one
Jayanti Dada was sitting near the STD shop. However, the evidence of Jayanti
Dada is not forthcoming even though the witness said when she went for dinner
in the house of the deceased, Jayanti Dada was playing badminton with the
deceased. After dinner, the witness came back and again started playing with
the deceased. Then, her father came and took her home. At this point, her
evidence in chief is "thereafter, Khusbu (the deceased), was playing
badminton with the appellant". According to her evidence, they were
playing badminton at about 9 p.m.
9. For the
appreciation of the evidence of a child witness, this Court has evolved certain
principles and in some of its judgments this Court has relied on the
proposition
10. Justice Brewer
opined that the evidence of a child witness is not to be rejected per se but
rule of prudence demands that it should be subjected to a close scrutiny. If on
a close scrutiny, the Court finds it reliable, even conviction can be based on
it.
11. This principle
laid down in Wheeler (supra) has been accepted by this Court in SCC 565, at pg.
567.
Maharashtra - (1997)
5 SCC 341, had held that there is no rule of practice that the evidence of a
child witness needs corroboration in order to base conviction on it.
However, as a rule of
prudence, the Court insists it is desirable to have corroboration from other
dependable evidence (See page 343).
corroboration of the
testimony of a child witness is not a rule but is a measure of caution and
prudence (See page 133).
14. In this case, of
course, there is some corroboration of the evidence of the child witness from
the deposition given by Shankarbhai, who mentioned that, the accused was
playing badminton with the deceased. So far as the 5th circumstance is
concerned, guilt of the appellant did not surface till then.
15. So far as the 6th
circumstance is concerned, the same is that the deceased was found missing by
her parents when they returned home on 17.12.1999 at about 10.30 p.m.
This also does not
indicate any guilt of the appellant.
16. The 7th and 8th
circumstances are very crucial and in this connection, the evidence of PW.24 is
very vital for fastening the guilt on the appellant. PW.24 in his evidence in
chief said that he had seen the appellant taking the deceased on a bicycle between
9.00 to 9.30 p.m. The said witness was having the business of selling Chinese
food in a lorry near Adajan Patiya Char Rasta. But in his cross-examination he
has said "on the date of incident at about 8.00 p.m. I had seen Ramesh
with Khushbu, who was going on cycle sitting behind Khushbu, on the road Adajan
Patiya Char Rasta opposite to my lorry".
17. This is a vital
discrepancy. The evidence of the child witness corroborated by Shankarbhai is
that, deceased was playing badminton till about 9.00 p.m. The deceased was
first playing with the child witness, then with Jayanti Dada and then again
with the child witness and ultimately with the appellant when the child witness
left the apartment with her father for their house. Therefore, the evidence of
PW.24, which is adduced by the prosecution to prove the theory of `last seen'
is that on 8.00 p.m. PW.24 had seen the appellant and the victim going on a
cycle in front of his lorry from which he was selling Chinese food.
18. In that case, the
deceased and the appellant must have left the apartment before 8 p.m.
Thus there is a very
vital discrepancy about time between the evidence of child witness as
corroborated by Shankarbhai and the evidence of PW.24 on the question of `last
seen'. The prosecution sought to prove this `last seen' theory on the basis of
the 5th and 7th circumstances. This discrepancy has not been noticed either by
the High Court or in the judgment of His Lordship.
19. The next, the 8th
circumstance, as noted in the judgment of His Lordship is that after PW.24 had
disclosed before Shankarbhai (PW.6) that he had seen the appellant going on a
cycle towards Jakat Naka with the deceased, a search was made and the appellant
was found missing. From the evidence of Vishnu Bahadur (PW.24), it appears that
on the date of the incident i.e. 17.12.1999, after he saw the appellant going
with the deceased on a cycle and he called the appellant to stop, the appellant
did not stop the cycle and was going towards Jakat Naka. Thereafter his
evidence in chief is that he closed the lorry at about 11.00 p.m. and went to
his house and slept. On 17.12.1999 Vishnu Bahadur (PW.24) did not meet
Shankarbhai (PW.6). On the next day i.e.
18.12.1999 at about
1.00 to 1.30 p.m., Vishnu Bahadur (PW.24) after cooking Chinese food in his
house went to Sanudip Apartment and met Shankarbhai (PW.6). When he went to
that Apartment, he saw a crowd there. Then his evidence is, "I asked
Shankarbhai, what is happened. In reply, Shankarbhai told me that Khushbu is
missing since last night. At that time I informed Shankarbhai that yesterday
evening I have seen Ramesh, who was going on cycle with Khushbu. The police had
inquired him."
20. It is clear from
the aforesaid evidence that Vishnu Bahadur (PW.24) met Shankarbhai (PW.6) on
the next day i.e. on 18.12.1999 quite late and which is after mid day and then
he informed Shankarbhai about the incident of the appellant going on a cycle
with the deceased. So the information by PW.24 to PW.6 that he saw on
17.12.1999 the appellant and the deceased going together on a cycle towards
Jakat Naka was not given before 1.00 to 1.30 p.m. on 18.12.1999.
21. The 9th
circumstance which introduces the extra judicial confession by the appellant to
Chandravadan (PW.4) shows a different sequence of events. Evidence of
Chandravadan (PW.4) is that on the night of 17.12.1999, Nareshbhai and
Kailashben, the parents of the deceased, came to his house for the purpose of
searching the deceased. Then Chandervadan went with them to search the deceased
and stayed at the place of Nareshbhai and then he went to the house of his
mother-in-law, where he stayed the whole night then left for his house to have
a bath which is obviously the next day i.e. 18.12.1999. When he was leaving for
his house on a motorcycle, he saw the appellant sitting behind Bhulka Bhavan
School in an open plot. He went to the appellant and asked him about Khusbhu
and then the appellant made his confessional statement of allegedly raping and
murdering Khushbu. Chandravadan (PW.4) then took the appellant "to the
house of Nareshbhai" where Nareshbhai and others interrogated the
appellant and before them appellant is alleged to have made the same
confessional statement. Then Nareshbhai `called up the Police Station' and
`informed the police'.
PW.4 also deposed,
`Before police came, I left the house of Nareshbhai and went to my house to
have a bath' - this is the evidence of PW.4 in chief. It is clear from the
aforesaid evidence of PW.4 that he took the appellant to the father of the
deceased on the next day and police was immediately informed before he could go
to his house to take his bath.
22. To my mind this
discloses major discrepancies in the sequence of events, which formed the core
of 7th, 8th and 9th circumstances and are very vital to establish the guilt of
the appellant. According to my reading of the evidence there is no chance of
the appellant being found missing after the reporting of the incident by PW.24
on 18.12.1999 at about 1.00 to 1.30 p.m. in as much as PW.4 brought the
appellant to the apartment in the morning hours of 18.12.1999 and the police
was immediately called. In between the confession was allegedly made by the
appellant.
23. It appears that
in his statement under Section 313 Cr.P.C., the appellant submitted that he
wants to give a written statement and he actually had given a written statement
to the Trial Court. The same was marked as Exhibit 133. In the said written
statement dated 1.4.2005 he has inter alia stated:- "I have not made any
confession before the residents of the society or the police, because I have
not committed any offence. Moreover, I have not shown dead body of Khushbu to
the Police. I had not led police to the place where dead body was lying. I have
not made any confession before the police or panch persons. I have not drawn
the police to the place of my residence. I have not given anything from the
school bag. The police had created these evidences with a view to involve me in
the case falsely."
24. This has to be
treated as part of the accused's statement under Section 313. The provision
under Section 313 of the Code is for the benefit of the accused [see Basavaraj
this written statement which the accused has given and the Court made it as an
Exhibit must be treated as part of his statement under Section 313.
25. It appears
therefore, the appellant has retracted his confession.
26. When an
extra-judicial confession is retracted by an accused, there is no inflexible
rule that the Court must invariably accept the retraction. But at the same time
it is unsafe for the court to rely on the retracted confession, unless the
Court on a consideration of the entire evidence comes to a definite conclusion
that the retracted confession is true. If the Court wants to reject the
retraction, Court must give cogent reasons before the Court Biseswar Dey and
others - 26 C.W.N. 1010). This is still good law. The same principle State of
West Bengal reported in JT 2008(11) SC 658 at 665 of the report. (See para 21).
27. It does not
appear that the High Court has given any reason for not accepting the
retraction of the confession by the accused. The High Court dealt with
so-called extra judicial confessions by the appellant and held that the second
extra judicial confession by the appellant before the police is hit by Section 25
of the Evidence Act. But about the retraction of his first extra judicial
confession in the written statement of the appellant, which is part of his 313
statement, there is no discussion in the judgment of the High Court.
28. In paragraph 13
of the High Court judgment, the High Court merely referred to the general
denials by the appellant in the course of his examination under Section 313
Cr.P.C. and held that the non-explanation of the suspicious circumstances under
which the deceased had died will be treated as an additional link against the
appellant. In a case where death penalty has been imposed, this Court expects
the High Court to consider the evidence with greater care and circumspection.
29. This Court finds
that the written statement of the appellant was accepted by the High Court
while formulating various circumstances against the appellant. A part of the
written statement was considered for formulating the 4th circumstance against
him. So High Court cannot accept one part of the statement to the total
non-consideration of the other part in which the appellant has retracted his
confession and especially when it was affirming death sentence against the
appellant.
30. The 12th
circumstance against the appellant is that blood was found on his T-shirt. But
the High Court observed that the blood group of the deceased was `A' and the
blood group found on T-shirt of the appellant couldn't be determined. So, in my
view, the mere fact that blood stain was found on the T-Shirt of the appellant
cannot be taken as a circumstance against him.
31. But the High
Court glossed over this gap in the prosecution evidence by citing Khujji
judgment, a three judge Bench of this Court held that even when group of blood
stains found on the clothes of the accused is not determined, the same is of no
consequence when there is direct evidence against the accused that he inflicted
a knife blow on the deceased.
32. This ratio cannot
be applied here as there is no direct evidence. This is a case of
circumstantial evidence. Therefore, in the absence of any proof that the group
of the blood stain found on the T-shirt of the accused is that of the deceased,
the 12 th circumstance cannot be said to be one pointing towards the guilt of
the accused and especially in a case where death penalty is affirmed by the
High Court.
33. In the complaint,
which was filed by the father of the deceased girl, there is no allegation of
robbery. In the evidence led in this case and on which adverse circumstances
have been formulated against the appellant, it appears that the deceased girl
went with the appellant on her own. In the circumstances noted against the
appellant, there is no allegation of robbery against the appellant.
34. In his statement
under Section 313, the accused was not told that he has committed robbery. Only
in some of the questions it was put to him that the deceased girl was wearing
golden earrings and silver anklets. It was never put to him that he has
committed any robbery. Even then the Hon'ble High Court after assessment of the
evidence in this case and while confirming the death sentence reached its
finding that the appellant has committed robbery. The question which was put to
the appellant in connection with those ornaments is as follows:- "This
witness has further stated in her deposition that, her daughter was going to
school by rickshaw. Some times Mr. Ramesh was going to put her on school on his
cycle when rickshaw was not available. Moreover, this witness has identified
cloths, golden earrings and silver anklets of deceased Ms. Khushbu. What you
want to say about it?"
35. From the
aforesaid question, it cannot be said that it was put to the appellant that he
committed robbery but the High Court reached a finding that the appellant
committed robbery and held:
"It is obvious
that a most heinous type of barbaric rape, murder and robbery was committed on
a helpless and defenseless girl aged 10 years."
36. I am constrained
to hold that appreciation of evidence by the High Court in this case, in
affirming death penalty, has not been on a proper perspective and keeping in
mind the parameters of `rarest of rare cases' formulated in Bachan Singh
(supra).
37. The High Court
while confirming death sentence in this case, compared this case with W.B. -
(1994) 2 SCC 220, and justified the death penalty in this case as similar
penalty was imposed in the case of Dhananjoy (supra).
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.
39. In Dhananjoy
(supra), prior to the date of crime, there were many occasions when the victim
had been teased by Dhananjoy on her way to and back from her school. The latest
being on 2nd March, 1990, three days prior to her death, when Dhananjoy had asked
the deceased to accompany him to watch a movie. To that the deceased protested
and had told her mother about it. Then her father had consulted some neighbours
and thereafter, filed a written complaint to the security agency which had
hired Dhananjoy and deployed in their apartment. The agency had arranged for
Dhananjoy to be transferred to another apartment. Thus there was a motive and a
sense of revenge in the mind of Dhananjoy in committing the crime against the
deceased.
40. Here the facts
are totally different.
41. In Dhananjoy
(supra), about the time or after the commission of the crime, two PWs saw him
come out in the balcony of the same flat in which the victim girl stayed when
they called out his name. Dhananjoy should not have gone to that flat as the
father of the victim girl filed a complaint against him upon the same his
transfer from the apartment was under consideration. Dhananjoy was immediately
asked to come down by those who called him and in response to their call; he
came out on the balcony of that flat. Thus Dhananjoy's presence in the scene of
crime at or about the time of commission of the crime is not merely based on
the circumstantial evidence.
42. Third point of
difference is with respect to the behaviour of Dhananjoy after the crime.
43. In Dhananjoy
(supra) there are two very suspicious conduct of his. One is after he came down
from the flat, Dhananjoy absconded.
44. After he came
down, he spoke with the supervisor in a hurry and left the place. And
thereafter, he did not report back to the office for many days nor did he come
to collect his salary. He was later on found from his native village and his
plea of alibi was found to be "belated and vague" by this Court.
45. In this case the
appellant did not abscond. He came to the same apartment on the next day.
46. In Dhananjoy
(supra), a cream coloured shirt button was found in the place of occurrence and
which matched with the buttons of his shirt handed over by the accused to the
police after he was apprehended. Also, a broken chain was found which was
proved to have been worn by Dhananjoy as it was recognized as being given to
him by one of the PWs.
47. Also, another
item, i.e. a watch which was found from the Dhananjoy's house had been taken
by him from the flat and belonged to the mother of the deceased.
48. Thus, these items
connected unerringly Dhananjoy with the crime and are crucial in nature.
49. There is no such
evidence in this case.
50. Therefore
imposition of death penalty in Dhananjoy (supra) does not justify the
imposition of the same sentence here.
law one additional or
different fact may make a world of difference between the conclusions in two
cases or between two accused in the same case.
52. Criminal cases
depend on facts and a single significant factual detail may alter the entire
conclusion (para 18 page 671).
53. Death Penalty is
a vexed subject in our legal system. In the 35 th Report of the Law Commission
on Capital Punishment, arguments for both its retention and abolition were
considered. The matter came to be considered by the Law Commission as,
Raghunath Mishra, Member of the Lok Sabha, moved a resolution in the House for
its abolition. And in the course of the debate, it was agreed that the question
be referred to the Law Commission.
54.The Commission
gave a detailed Report running into several volumes. Ultimately the Commission
recommended its retention but also recommended certain amendments of the Code
of Criminal Procedure and the Indian Penal Code. Those recommendations given in
Appendix XLIV of the report run as under:
"1). The Code of
Criminal Procedure, 1898 - A provision requiring reasons for imposing either
sentence (of death or imprisonment for life) for an offence which is punishable
with death or imprisonment for life in an alternative, should be inserted in
the Code.
[Paragraphs 820-822
of the body of the Report] 2) Indian Penal Code - Persons below 18 years of age
at the time of Commission of the offence should not be sentenced to death.
[Paragraphs 878 and 887 of the body of the Report]"
55.The Commission's
recommendations for its retention were given in a guarded language and they may
be quoted:- "Having regard, however, to the conditions in India, to the
variety of the social up- bringing of its inhabitants, to the disparity in the
level of morality and education in the country, to the vastness of its area, to
the diversity of its population and to the paramount need for maintaining law
and order in the country at the present juncture, India cannot risk the
experiment of abolition of capital punishment."
(Emphasis added)
56. Despite these
recommendations, the validity of death sentence came up for consideration
before this Court on several occasions. In one of the earliest cases, in the
validity, even though, it acknowledged that this is a difficult and
controversial subject.
Soon thereafter the
matter came up for consideration before this Court again in Ediga down that the
life sentence should be the rule and death sentence is an exception. In that
case Justice Krishna Iyer, speaking for this Court, gave certain guidelines in
paragraph 26 and described them as positive indicators against death sentence
under Indian law. Those guidelines are as follows:- "26. Where the
murderer is too young or too old the clemency of penal justice helps him.
Where the offender
suffers from socio-economic, psychic or penal compulsions insufficient to
attract a legal exception or to downgrade the crime into a lesser one, judicial
commutation is permissible. Other general social pressures, warranting judicial
notice, with an extenuating impact may, in special cases, induce the lesser
penalty.
Extraordinary features
in the judicial process, such as that the death sentence has hung over the head
of the culprit excruciatingly long, may persuade the Court to be compassionate.
Likewise, if others involved in the crime and similarly situated have received
the benefit of life imprisonment or if the offence is only constructive, being
under Section 302, read with Section 149, or again the accused has acted
suddenly under another's instigation, without premeditation, perhaps the Court
may humanly opt for life, even like where a just cause or real suspicion of
wifely infidelity pushed the criminal into the crime. On the other hand, the
weapons used and the manner of their use, the horrendous features of the crime
and hapless, helpless state of the victim, and the like, steel the heart of the
law for a sterner sentence. We cannot obviously feed into a judicial computer
all such situations since they are astrological imponderables in an imperfect
and undulating society. A legal policy on life or death cannot be left for ad
hoc mood or individual predilection and so we have sought to objectify to the
extent possible, abandoning retributive ruthlessness, amending the deterrent
creed and accenting the trend against the extreme and irrevocable penalty of
putting out life."
(Emphasis supplied)
57. Those
formulations by Justice Krishna Iyer have been accepted in Amnesty
International Report of Death Penalty (See Amnesty International Publication,
page 80 to 81).
58. The aforesaid
formulations must be kept in mind by Courts while exercising their discretion
in imposing death penalty. His Lordship was of the view that individualization
of sentencing is normally achieved by a judicial `hunch' which according to His
Lordship was a procedural defect. In my judgment His Lordship's formulation of
the principles in Ediga Anamma (supra) is a systematic statement, which, in the
language of Justice Homes, may be called "inarticulate premises"
which Court should consider before imposing the death sentence. In Ediga Anamma
(supra) Justice Krishna Iyer while tracing the history of capital punishment
observed that its history "hopefully reflects the march of civilization
from terrorism to humanism and the geography of death penalty depicts retreat
from country after country." (See para 22 page 805).
59. The Constitution
Bench in Bachan Singh (supra) considered the decision in Ediga Anamma (supra)
and did not express a contrary view on those guidelines. On the other hand, it
shared the same view, by quoting from Ediga in paragraph 207, page 945 of the
report.
60. But the
categories of mitigating circumstances are never close and in paragraph 204
(page 944 of the said report) of Bachan Singh (supra), this Court recorded the
submissions of Dr. Chitaley, the learned counsel who suggested some further
mitigating factors. They are:- "Mitigating circumstances:-- In the
exercise of its discretion in the above cases, the court shall take into
account the following circumstances:
(1) That the offence
was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the
accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability
that the accused would not commit criminal acts of violence as would constitute
a continuing threat to society.
(4) The probability
that the accused can be reformed and rehabilitated. The State shall by evidence
prove that the accused does not satisfy the conditions (3) and (4) above.
(5) That in the facts
and circumstances of the case the accused believed that he was morally justified
in committing the offence.
(6) That the accused
acted under the duress or domination of another person.
(7) That the
condition of the accused showed that he was mentally defective and that the
said defect impaired his capacity to appreciate the criminality of his
conduct."
61. After recording
the submissions of the learned counsel, the Court in Paragraph 205 at page 944
of the report accorded its approval to the same by saying that those are
"undoubtedly relevant circumstances and must be given great weight in the
determination of sentence". Therefore apart from the mitigating
circumstances formulated in Ediga Anamma, those suggested by Dr. Chitaley and
approved by this Court, unless they overlap, form part of the ratio in Bachan
Singh as mitigating circumstances accepted by this Court.
62. In paragraph 207,
the learned Judges held that there are numerous other circumstances justifying
the passing of the lighter sentence, as there may be circumstances of
aggravation.
63. In paragraph 207,
in Bachan Singh, the learned Judges explained the principles in sentencing
policy under Section 354(3) of the Code of Criminal Procedure. In my view the
provisions of Section 354(3) must be read conjointly with Section 235(2) of the
said Code.
64. In a case where the
Court imposes the death sentence both the aforesaid provisions, namely, Section
235(2) and Section 354(3) of the Code assume signal significance.
65. The
Constitutional validity of Section 354(3) was upheld in Bachan Singh (supra) as
the learned Judges have said that the legislative policy in sentencing is
discernable from those two Sections.
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.
67. In Bachan Singh
(supra), this Court interpreted those Sections almost in the similar view as
would appear from paragraphs 164 and 165 (page 936 of the report). The
Constitution Bench held :- "164. ......Section 235(2) provides for a
bifurcated trial and specifically gives the accused person a right of
pre-sentence hearing, at which stage, he can bring on record material or
evidence, which may not be strictly relevant to or connected with the
particular crime under inquiry, but nevertheless, have, consistently with the
policy underlined in Section 354(3), a bearing on the choice of sentence. The
present legislative policy discernible from Section 235(2) read with Section
354(3) is that in fixing the degree of punishment or making the choice of
sentence for various offences, including one under Section 302, Penal Code, the
court should not confine its consideration "principally" or merely to
the circumstances connected with the particular crime, but also give due consideration
to the circumstances of the criminal.
68. In a criminal
trial where the prosecution seeks to make out a case for imposition of death
sentence, it has to discharge a very heavy and an onerous burden. In such
cases, the prosecution must, and I repeat, must discharge this burden by
demonstrating the existence of aggravating circumstances and the consequential
absence of mitigating circumstances. In discharging such a burden the
prosecution must not only prove beyond reasonable doubt that the accused has
committed the crime but in order to make out a case for death sentence, it also
has to prove beyond any reasonable doubt how the crime has been committed and
specially the aggravating circumstances which warrant a death penalty. In such
exercise by the prosecution, the accused must be given a real and effective
chance of rebuttal and to disprove the existence of aggravating circumstance.
Therefore apart from his examination under Section 313, the accused must be
separately heard on the sentence to be imposed on him where he can demonstrate
all the mitigating circumstances. Those must be weighed in the balance and they
must receive a liberal and expansive interpretation by Court. In this context
the following observations in Bachan Singh (supra) are very pertinent:-
"...Nonetheless, it cannot be over-emphasised that the scope and concept
of mitigating factors in the area of death penalty must receive a liberal and
expansive construction by the courts in accord with the sentencing policy writ
large in Section 354(3). Judges should never be blood thirsty. Hanging of
murderers has never been too good for them.
Facts and figures
albeit incomplete, furnished by the Union of India, show that in the past
Courts have inflicted the extreme penalty with extreme infrequency.............
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.
(Emphasis supplied)
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 Code.
70. 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 of pre-sentence
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 Court.
72. 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 Court.
73. 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).
(1981) 3 SCC 11, a
two judge bench of this Court emphasized on the importance of hearing the
accused on the question of sentence under Section 235(2) CrPC and came to the
conclusion that the question of hearing the accused on sentence was not to be
discharged without putting formal questions to the accused. The obligation of
hearing the accused under Section 235(2) CrPC has been explained as follows:-
"The Judge must make a genuine effort to elicit from the accused all
information which will eventually bear on the question of sentence... question
which the Judge can put to the accused under Section 235(2) and the answers
which the accused makes to those questions are beyond the narrow constraints of
the Evidence Act. The court, while on the question of sentence is in an
altogether different domain in which facts and factors which operate are of an
entirely different order than those which come into play on the question of
conviction".
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 served.
76. The learned
judges held that the provision of Section 235(2) of the CrPC serves a dual
purpose and those purposes are as follows:
"...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. It is clearly
mandatory and should not be treated as a mere formality".
77. After observing
as such, this Court mandated a general rule which should be followed in
sentencing, specially in cases of sentencing of Death Sentences and those
general principles are as follows:- "...We think as a general rule the
trial courts should after recording the conviction adjourn the matter to a
future date and call upon both the prosecution as well as the defence to place
the relevant material bearing on the question of sentence before it and
thereafter pronounce the sentence to be imposed on the offender."
of Punjab -(1991) 4
SCC 341, this Court again reiterated in Para 18 at pg 356 of the report that
the sentence awarded on the same day when finding of the guilt was arrived at
is not in accordance with the law. Explaining the provisions under Section
235(2) CrPC, this Court held:- "Hearing contemplated is not confined
merely to oral hearing but also intended to afford an opportunity to the
prosecution as well as the accused to place before the court facts and material
relating to various factors on the question of sentence, and if interested by
either side, to have evidence adduced to show mitigating circumstances to
impose a lesser sentence or aggravating grounds to impose death penalty.
Therefore, sufficient time must be given to the accused or the prosecution on
the question of sentence, to show the grounds on which the prosecution may
plead or the accused may show that the maximum sentence of death may be the
appropriate sentence or the minimum sentence of life imprisonment may be
awarded, as the case may be. No doubt the accused declined to adduce oral
evidence. But it does not prevent to show the grounds to impose lesser sentence
on A-1. This Court in the aforestated Allauddin and Anguswamy cases held that
the sentence awarded on the same day of finding guilt is not in accordance with
the law".
79. 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 on 8-5-92 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 imposed.
81. The duties cast
on the High Court, while dealing with reference for confirmation of death
penalty under Sections 366, 367, 368, 369 and 370 of Code were also pointed out
in Bachan Singh in paragraphs 157, 158, 159 at page 934 of the report. In
paragraph 159, the position has been summed up as under:- "159. The High
Court has been given very wide powers under these provisions to prevent any
possible miscarriage of justice. In State of Maharashtra v. Sindhi, AIR 1975 SC
1665 this Court reiterated, with emphasis, that while dealing with a reference
for confirmation of a sentence of death, the High Court must consider the
proceedings in all their aspects, reappraise, reassess and reconsider the
entire facts and law and, if necessary, after taking additional evidence, come
to its own conclusions on the material on record in regard to the conviction of
the accused (and the sentence) independently of the view expressed by the
Sessions Judge".
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.
83. 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 AIR
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. Georgia - 408 U.S. 238 (1972),U.S. Supreme Court impliedly overruled
its earlier decision in McGautha V. California - 402 U.S. 183, 196 (1971). In
this context it may be mentioned that in nine separate opinions the learned
Judges issue as cruel and unusual in view of the denial of the `due process'
guaranteed by the Fourteenth Amendment.
87. Learned Judges in
Furman observed that the sentencing policy was not properly structured and,
therefore, it causes denial of Fundamental Rights.
88. 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 Code.
89. 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 Constitution.
90. 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 imposed.
91. While I fully
share my learned Brother's 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 Court.
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'.
93. 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
concerned.
94. 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 cases'.
95. The expression
`rarest of rare cases' is not to be read as a mere play on words or a
tautologous expression.
96. 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 justice'.
97. 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 it.
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 case'.
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
sentence.
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 imprisonment.
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 it.
102.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 ground.
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 cases.
104.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 charge-sheet. 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 him.
105.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 accused - and even of the convicted - criminal against the State; a
constant heart-searching 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 the
stored-up strength of a nation, and are sign and proof of the living virtue in
it".
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.
.......................J.
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