Rameshbhai Chandubhai
Rathod Vs.The State of Gujarat
JUDGMENT
HARJIT SINGH BEDI,J.
1.
As
the facts have been very comprehensively given in the order of Pasayat, J., we
will only refer to such facts as are necessary for the disposal of the
reference which has been made to us. Suffice it to say that the
accused-appellant Rameshbhai Chandubhai Rathod, aged about 28 years, was employed
as a watchman in Sanudip Apartments, Rander Road, Surat City. Flat No. A/2 was
occupied by the complainant Nareshbhai Thakorebhai Patel, his wife, a son Brijesh,
aged 16 years, and the deceased, a daughter, a Class IV student in Ankur
School. The accused-appellant was residing with his wife Savita and two
children in a one room tenement close by. On the 17th December 1999, the complainant
and his wife went to Udhana at about 8.00 p.m.to attend a religious ceremony
and on returning there from found that their daughter was missing. Frantic
enquiries made by the family, bore no result.
The complainant there
upon lodged a FIR at 2.30 a.m. on the 18th December 1999 with the Rander Police
Station to that effect. The complainant nevertheless continued to search for the
child and in due course ascertained from one Bipinbhai Bhandari, one of his friends,
who told him that his (Bhandari's) old servant Bishnubhai had told him that he
had seen the appellant taking the girl with him on his bicycle. This
information was conveyed to the police by the complainant. The police made a search
for the appellant but he could not be immediately found but was ultimately
located the next day i.e. on the 19thDecember 1999 by Chandravadan Patel who
spotted him sitting in an open space near the vegetable market. The appellant
made an extra judicial confession to him that he had raped and killed the
child. The police was, accordingly, informed and they took the appellant into
custody.
The appellant also
made a disclosure to the complainant as to the place of incident and the dead
body was recovered from that place. On the completion of the investigation, the
accused was charged for offences punishable under Sections 363,366,376,302 and
397 of the IPC and brought to trial. The trial court on a minute appreciation
of the evidence which was exclusively circumstantial in nature, held that the
case against the appellant had been proved beyond doubt, and accordingly convicted
him and sentenced him to death for the commission of the offence punishable
under section 302 and to various terms of imprisonment for the other offences.
The matter was, thereafter, referred to the High Court and the accused also filed
an appeal challenging his conviction.
The High Court confirmed
the reference and dismissed the appeal. The High Court also found that the case
against the accused fell within the category of the rarest of the rare cases,
as envisaged in Bachan Singh vs. State of Punjab 1980 (2) SCC 684 and Machi
Singh vs. State of Punjab 1993 (3) SCC 470 as followed and clarified in a series
of other judgments subsequently, particularly, in Dhanonjoy Chatterjee vs. State
of West Bengal 1994 (2) SCC 220 and observing that in the balance sheet of the
aggravating and mitigating circumstances, the former were pre-dominant,
confirmed the death sentence. The judgment of the High Court was challenged by
the appellant in this Court and after the grant of special leave, the matter
was heard by a Division Bench.
The Bench delivered
two judgments on the 25th February 2009and while the two Hon'ble Judges were of
the unanimous opinion that the conviction of the appellant was to be maintained,
a difference of opinion arose as to the sentence that was to be awarded with
Pasayat, J. observing that the case fell within the category of the rarest of
rare cases as the deceased was a helpless child of tender age and that the appellant,
being a watchman in the building in which she was residing with her parents,
was in a position of trust, and as the murder and rape was particularly brutal,
the death sentence was the only adequate one. Ganguli, J. however differed on
this aspect and held that as there was some uncertainty with the nature of the
circumstantial evidence and that the mitigating circumstance particularly the
young age of the appellant and the possibility that he could be rehabilitated
and would not commit any offence later on, could not be ruled out, and that the
statutory obligation cast on the trial court under Section 235 (2) read with
Section 354 (3) of the Cr.P.C. had been violated inasmuch that the accused had not
been given adequate opportunity to plead on the question of sentence and also
citing a large number of cases including those of rape and murder of young
children, opined that a sentence of life imprisonment was the proper one. This
matter has, accordingly, been referred to us only on the question of the
sentence.
2.
As
already mentioned above, both Hon'ble Judges have relied on a number of cases
which are on almost identical facts in support of their respective points of
view. We notice that there is a very thin line on facts which separates the award
of a capital sentence from a life sentence in the case of rape and murder of a
young child by a young man and the subjective opinion of individual Judges as
to the morality, efficacy or otherwise of a death sentence cannot entirely be ruled
out. It is now well settled that as on today the broad principle is that the
death sentence is to be awarded only in exceptional cases. Both Hon'ble Judges have
relied extensively on Dhanonjoy Chatterjee's case (supra).
In this case the
death sentence had been awarded by the trial court on similar facts and
confirmed by the Calcutta High Court and the appeal too dismissed by this Court
leading to the execution of the accused. Ganguli, J. has, however, drawn a distinction
on the facts of that case and the present one and held that as the appellant
was a young man, only 27 years of age, it was obligatory on the trial court to
have given a finding as to a possible rehabilitation and reformation and the possibility
that he could still become a useful member of society in case he was given a
chance to do so. We are, therefore, of the opinion that in the light of the
findings recorded by Ganguli, J. it would not be proper to maintain the death sentence
on the appellant. At the same time the gravity of the offence, the behaviour of
the appellant and the fear and concern such incidents generate in ordered
society, cannot be ignored.
We, therefore, feel
that a via-media ought to be adopted in the light of the judgment of this Court
in Ramrajvs. State of Chhattisgarh (2010) 1 SCC 573 and Mulla & Anr. State
of Uttar Pradesh (2010) 3 SCC 508. In these two cases, this Court has held that
the term imprisonment forlife which is found in Section 302 of the IPC, would
mean imprisonment for the natural life of the convict subject to the powers of
the President and the Governor under Articles 72and 161 of the Constitution of
India or of the State Government under Section 433-A of the Code of Criminal Procedure.
In Mulla's case (supra), this Court has said :
"We are in
complete agreement with the above dictum of this Court. It is open to the sentencing
court to prescribe the length of incarceration. This is especially true in
cases where death sentence has been replaced by life imprisonment. The court
should be free to determine the length of imprisonment which will suffice the
offence committed. Thus we hold that despite the nature of the crime, the
mitigating circumstances can allow us to substitute the death penalty with life
sentence. Here we would like to note that the punishment of life sentence in
this case must extend to their full life, subject to any remission by the
Government for good reasons. 8 For the foregoing reasons and taking into
account all the aggravating and mitigating circumstances, we confirm the
conviction, however, commute the death sentence into that of life imprisonment.
The appeal is disposed of accordingly."In arriving at its conclusion, the
Court relied on similar observations made in the case of Ramraj (supra). We
are, therefore, of the opinion that the appellant herein ought to be awarded a
similar sentence. We accordingly commute the death sentence awarded to him to
life but direct that the life sentence must extend to the full life of the
appellant but subject to any remission or commutation at the instance of the Government
for good and sufficient reasons.
3. As already noticed
above, Ganguli, J. has made some observations on the omission of the trial
court in dealing with the question of sentence on the principles underlying
Section235 read with Section 354 of the Cr.P.C. We are of the opinion that some
of the observations made are a little broad based on the facts of the present case
and would present insurmountable practical difficulties for a trial court. Even
otherwise the facts indicate that the appellant had been given enough time and
opportunity for pleading on the question of sentence. We accordingly dispose of
this appeal in the above manner.
......................................J.(
HARJIT SINGH BEDI)
.....................................J.(
P. SATHASIVAM )
......................................J.(CHANDRAMAULI
KR. PRASAD )
January
24, 2011.
New
Delhi.
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