Holding

The conviction stands, but the death sentence is not warranted; life imprisonment is the appropriate punishment.

Summary

The appellant, a watchman, was convicted of kidnapping, rape, robbery and murder of a ten‑year‑old girl based solely on circumstantial evidence and an extra‑judicial confession. The trial court sentenced him to death, a decision affirmed by the High Court. On appeal, the Supreme Court examined whether the circumstantial evidence met the stringent tests for conviction and whether the case qualified as a "rarest of rare" warranting capital punishment. The Court found serious procedural deficiencies: the trial court failed to conduct a proper bifurcated sentencing hearing under Sections 235(2) and 354(3) of the CrPC and the prosecution did not discharge the heavy burden required for a death sentence. It also held that the evidence did not establish the appellant as a continuing threat to society, nor did it satisfy the rarest‑of‑rare criteria. Consequently, while the conviction was upheld, the death sentence was set aside in favour of life imprisonment, and the matter was referred to a larger bench for final sentencing.

Issues considered

Whether the conviction based solely on circumstantial evidence is legally sustainable.
Whether the death penalty is justified under the 'rarest of rare' doctrine.
Whether the trial court complied with the mandatory pre‑sentence hearing provisions of Sections 235(2) and 354(3) of the CrPC.
Whether the extra‑judicial confession and its later retraction can be relied upon.
Whether the charge of robbery was proved and should affect sentencing.

Legislation cited

Code of Criminal Procedure, 1973s. 235(2), s. 354(3)
Indian Evidence Act, 1872s. 25
Indian Penal Code, 1860s. 302, s. 363, s. 366, s. 376, s. 397

Subjects

circumstantial evidencedeath penaltyrarest of raresentencing procedureSection 235(2) CrPCSection 354(3) CrPCextra‑judicial confessionchild witnessrapemurderlife imprisonment

Judgment

[2009] 6 S.C.R. 1055
~cit

RAMESHBHAI CHANDUBHAI RATHOD A
v.
STATE OF GUJARAT
(Criminal Appeal No. 575 of 2007)
APRIL 27, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]

PENAL CODE, 1860:
c
ss. 363, 366, 376, 397 and 302 - A girl of.10 years
enticed away by accused, raped and murdered -
Circumstantial evidence - Conviction and sentence of death ·
awarded by trial court, confirmed by High Court - HELD:
'J Conviction maintained - As regards the sentence, in view of D
difference of opinion as to confirmation of death sentence or
imposition of life imprisonment, matter referred to larger Bench
- .Circumstantial evidence.

The appellant-accused, a watchman, was prosecuted
for commission of offences punishable ulss 363, 366, E
376, 397 and 302 IPC on the allegations that he enticed
,., '1 away a child of ten years from her apartment, ravished
her and then killed her. The prosecution case was based
on the circumstances, namely, (1) the victim was raped
and she died a homicidal death; (2) she was residing with F
her parents in 'S' Apartment; (3) the accused was serving
as a watchman since long and was residing with his
family in the Apartment opposite to 'S' Apartment; (4) the
-., accused had won the confidence of the victim; (5)
,;.
between 8.45 P.M. and 9.00 P.M. on 17-12-1999 (the date G
of incident), the accused was last seen playing
badminton with deceased in ·s· Apartment; (6) at about
10.30 P.M. when parents of victim returned home, they
found her missing; (7) between 9.00 P.M. to 9.30 P.M. on
1055 H
1056 SUPREME COURT REPORTS [2009] 6 S.C.R.

A 17-12-1999 P.W.24 saw the appellant taking the victim on
his cycle; (8) after disclosure of PW.24 to PW 6 about
accused taking the victim on a cycle, a search was made
for accused and he was found missing; (9) on the
morning of 19-12-1999, the accused made extra-judicial
B confession before PW-4; (10) the accused showed the
place of incident where the dead body of the victim was
lying; (11) at the instance of the accused his cycle and
the school bag of the decease_d containing her
belongings were recovered; and (12) human blood was
C found on the T-shirt of the accused for which he offered
no explanation. The trial court convicted the accused of
the offences charged and sentenced him to death. The
High Court affirmed the conviction and confirmed the
death sentence. Aggrieved, the accused filed the appeal.·
Referring the matter to the larger Bench the Court
0
HELD: By the Court:

Though the conviction is to be maintained, there
being difference of opinion whether death sentence has
E to be confirmed or life sentence is to be given, the matter
is referred to a larger bench only on the question of
sentence.

Per Pasayat, J

F 1.1. 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. It has been consistently
laid down by this Court that where a case rests squarely
G 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 and the guilt of any other
person. (Paras 13 and 18) (1078-B-C; 1080-C-D]
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1057
GUJARAT

Hanumant Govind Nargundkar and Anr. V. State of A
Madhya Pradesh AIR 1952 SC 343; 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
Kamataka AIR 1983 SC 446; State of U.P. v. Sukhbasi and
Ors. AIR 1985 SC 1224; Ba/winder Singh v. State of Punjab· B
AIR 1987 SC 350; Ashok Kumar Chatterjee v. State of M.P.
AIR 1989 SC 1890; Bhagat Ram v. State of Punjab AIR 1989
SC 1890; C. .Chenga Reddy and Ors. v. State of A.P. (1996)
10 SCC 193; Pada/a Veera Reddy v. State of A.P. and Ors.
AIR 1990 SC 79; State of UP. v. Ashok Kumar 'Srivastava c
(1992 Crl.LJ 1104 and Sharad Birdhichand Sarda v. State
of Maharashtra AIR 1984 SC 1622, referred to.

"Wills' Circumstantial Evidence" (Chapter VI) by Sir
Alfred Wills, referred to. ,,
-- . D
1.2. In the instant case, 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. [Para 4) (1074-E]
E
State of U.P. v. Salish 2005 (3) SCC 114; Joseph and
Paulo v. State of Kera/a 2000 (5) SCC 197; Manive/ & Ors.
v. State of Tamil Nadu 2008(5) Supreme 577; Damodar v.
State of Karnataka 2000 SCC (Crl) 90, Ramreddy
Rajeshkhanna Reddy v. State of A.P. 2006 (10) SCC 172; F
Jaswant Gir v. State of Punjab 2005(12)SCC 438 and
Kusuma Ankama Rao v State of A.P. 2008(9) SCALE 652,
referred to. ·

2.1. As regards the sentence, 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
G

attendant circumstances are relevant facts which would
H
1058 SUPREME COURT REPORTS [2009] 6 S.C.R.
i.: ~

A enter into the area of consideration. 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
B committed are to be delicately balanced on the basis of
really relevant circumstances in a dispassionate manner
by the Court. [Para 23 and 27] [1082·F-G; 1084-D-E] ~ -
Mahesh v. State of M.P. (1987) 2 SCR 710, relied on.
c Dennis Councle MCG v. State of California 402 US 183:
28 L.D. 2d 711, referred to.

"Law in Changing Society" by Friedman, referred to.

2.2. Imposition of sentence without considering its
D
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
E which have great impact on social order, and public
interest, cannot be lost sight of and per se require
exempfary 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
F 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. It is, therefore, the duty of every court
to award proper sentence having regard to the nature of
-·
G the offence and the manner in which it was executed or
committed etc. [Para 24 and 29] [1083-C-D; 1085-C-F]

Sevaka Perumal etc. v. State of Tamil Naidu AIR 1991
....
-
SC 1463; Jashubha Bharatsinh Gohil v. State of Gujarat 1994
(4) SCC 353; Bachan Singh v. State of Punjab 1980 (2) SCC
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1059
GUJARAT
·~~
684; Machhi Singh v. State of Punjab 1983 (3) SCC 470; A
Devender Pal Singh v. State of NCT of Delhi 2002(50) SCC
234; State of M.P. v. Munna Choubey 2005 (2) SCC 712;
Ravji v. State of Rajasthan 1996 (2) SCC 175 and Dhananjoy
Chatterjee v. State of W.B. 1994 (2) SCC 220, relied on.
B
2.3. If upon taking an overall global view of all the
circumstances in the light of the propositions laid down
'- ' by this Court and taking into account the answers to the
questions posed by way of t.he test for the rarest of rare
cases, the circumstances of the case are such that death
sentence is warranted, the court would procee~ to do so.
c
What is culled out from the decisions of this Court is that
while deciding the question as to wheth.er the extreme
penalty of death sentence is to be awarded, a balance
sheet of aggravating and mitigating circumstances has
~·
to be drawn up. (Para 36 and 37] (1090-C-E; 1090-E-F] D

3.1. 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 E
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 F
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 sentences 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 by very nature of
- things in such cases, the available evidence is
G

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
H
1060 SUPREME COUR~ REPORTS [2009] 6 S.C.R.

A a mitigating circumstance, would amount to
consideration of an irrelevant aspect. [Para 38) [1090-F-
H; 1091-A-C]

3.2. The case at hand falls in the rarest of rare
category. The circumstances highlighted establish the
8
depraved acts of the accused and they call for only one
sentence i.e. death sentence. Looked at from any angle,
the judgment of the High Court confirming the death I. -
sentence does not warrant any interference. [Para 39)
C [1091-C-D]
Per Ganguly, J.

1. On going through the circumstances enumerated,
the first three circumstances, by themselves, do not
0 fasten any guilt on the appellant. In conjunction with
other circumstances they may be relevant. However the
4th, 5th and 7th to 12th circumstances might have been
considered by courts below relevant for bringing home
the guilt of the appellant, but the same cannot be said to
E bring the case within the rarest of rare category. [Para 3)
[1093-E-F]

Bachan Singh v. State of Punjab AIR 1980 SC 898 and
Ediga Anamma v. State of Andhra Pradesh AIR 1974 SC
799, relied on.
F
Ratansinh Oalsukhbhai Nayak v. State of Gujarat (2004)
1 sec 64; Nivrutti Pandurang Kokate and Others v. State of
Maharashtra (2008) 12 sec 565; Oattu Ramrao Sakhare and
Others v. State of Maharashtra (1997) 5 SCC 341;
G Suryanarayana v. State of Karnataka (2001) 9 SCC 129;
Megh Singh v. State of Punjab (2003) 8 SCC 666 and
Jagmohan Singh v. State of U.P. AIR 1973 SC 947, referred
to.

Khujji alias Suendra Tiwari v. State of Madhya Pradesh
H AIR 1991 SC 1853, held inapplicable.
1062 SUPREME COURT REPORTS [2009] 6 S.C.R.

A 3.1. 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 onerous burden. In such
cases, the prosecution must, and must discharge this
burden by demonstrating the existence of aggravating
B circumstances and the ccnsequential 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 I -
order to make out a case for death sentence, it also has
c to prove beyond any reasonable doubt how the crime
has been committed and specially the aggravating
circumstances which warrant a death penalty. In the
instant case, the prosecution has not discharged any
burden at all required to be discharged in a case of death
sentence. [Para 68 and 71] [1110-C-F; 1112-8-C]
D
Bachan Singh v. State of Punjab AIR 1980 SC 898 -
relied on.

3.2. In a case where the court imposes the death
E sentence both the provisions, namely, s.235(2) and
s.354(3) of the Code of Criminal Procedure, 1973, which
supplement each other, assume signal significance and
they must be harmoniously and conjointly appreciated
and read. Section 235(2) provides for a 'bifurcated trial'. ,,. --
F It gives the accused (i) a right of pre-sentence hearing,
in 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
G ,..
exercise in an idle ritual. This is a statutory obligation loo
which is cast on the court in a case where both s. 235(2)
r/w s.354(3) apply. Therefore, regardless of whether the
accused asks for such a hearing, the same must be
offered to the accused and an adequate opportunity for
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF1063.
"' GUJARAT
..... .., ' bringing materials on record must be given to him A
especially in case where s. 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.
The mandate of Article 141 of the Constitution in view of
the ratio in Bachan Singh cannot be ignored either by the 8
trial court or the High Court. [Para 64 and 70-72) [1109-
D; 1111-G-H; 1112-A, C-E]

J
-·- Bachan Singh v. State of Punjab AIR 1980 SC 898 and
Arshad v. State of Kamataka (1994) 4 SCC 383, relied on.
c
3.3. In the instant case, it does not appear that
adequate and effective hearing was given to the accused
' by the trial court before imposing the death sentence on
' him. It appears that the trial court returned a finding of
guilt of the appellant on 18.5.2005 and on that day itself D
.~
)..- heard the appellant on the sentence and imposed the
J. death sentence. That is not the purpose of s.235(2) of the
Code. Besides, in the order imposing death sentence,
the trial Judge has not even once referred to s. 354(3) of
the Code. Therefore, the imposing of death sentence by E
~
the trial court is wholly illegal and contrary to the
provisions of the Code and the law laid down by this
Court in Bachan Singh*. [Para 69 and 73) [1111-E-F; 1112-
-- •
~
F]
F
*Bachan Singh v. State of Punjab AIR 1980 SC 898;
-!' Muniappan v. State of Tamil Nadu (1981) 3 SCC 11;
Allauddin Mian v. State of Bihar (1989) 3. SCC 5 and Malkiyat
•' Singh and Others v. State of Punjab, (1991) 4 SCC 341, relied
on.
G
.... 3.4. The High Court, which is the first appellate court,
-,I
I-
both on facts and in law, has confirmed the death
'!
~ sentence without pointing out the glaring illegalities in
sentencing procedure of the trial court and especially in
a case where a death penalty has been imposed. It failed H
1064 SUPREME COURT REPORTS [2009] 6 S.C.R.

A to correct the flawed sentencing procedure followed by ·r~

the tria1 court, and erred in law by confirming the death
sentence which led to an obvious miscarriage of justice.
[Para 80 & 82] (1115-D; 1116-B]

3.5. The challenge to the constitutionality of death
B
sentence was repelled in Bachan Singh only in view of the
legislative safeguards given in the sentencing policy in
the provisions of ss. 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
c unjust". It appears that this· Court upheld the
constitutionality of death penalty on the doctrine of 'due
process' which has been introduced in our constitutional
jurisprudence in Maneka Gandhi's case. Therefore
fairness, justice and reasonableness which constitute the
D essence of guarantee of life and liberty epitomized in
Article 21 of the Constitution also pervades the .....
sentencing policy in ss. 235(2) and 354(3) of the Code.
These two provisions virtually assimilate the concept of
"procedure established by law" within the meaning of
E Article 21 of the Constitution. As has been laid down by
this Court in Bachan Singh, before imposing death
sentence, an abiding concern for the dignity of human life
-
must be shown by court. [Para 83, 89 and 91] [1116-B-D;

F
1117-C-D, F-G]
• -
Smt. Maneka Gandhi v. Union of India and another AIR
1978 SC 597, referred to.

Furman v. Georgia 408 U.S. 238 and Mcgautha v.
California 402 U.S. 183, 196 (1971), referred to.
G
4.1. The expression ·rarest of rare cases' is not to be ,...
lo:
read as a mere play on words or a tautologous
expression. In upholding the constitutional validity of
capital punishment, the Constitution Bench of this Court
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1065
GUJARAT
.... ___,, used that expression in Bachan Singh in order to read A
down and confine the imposition of capital punishment
to extremely limited cases. This is a very loaded
expression and is not to be 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 B
sense. [Para 95 and 96) [1118-E-G]

- ).
Bachan Singh v. State of Punjab AIR 1980 SC 898 ;
Bantu @ Naresh Giri v. State of Uttar Pradesh AIR 2002 SC
70; Surendra Pal Singh v. State of Gujarat (2002) 3 SCC 127,
Amrit Singh v. State of Punjab AIR 2002 SC 132 and
c
Ku/winder Singh v. State of Punjab AIR 2007 SC 2868, relied
on.

4.2. In the instant case, accused is a young man and
his age was 28 years as per the version in the charge- D
: ~ 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 E
crime committed by the appellant. He is not otherwise a
criminal. Such a person is not a threat to the society.
[Para 104] [1120-E-F]
.,.,, '+
4.3. In view of the principles enshrined in various
F
decisions of the Court and in view of mitigating
circumstances and the law laid down in Bachan Singh,
and keeping in view the various gaps in the prosecution
evidence, death sentence cannot be awarded to the
appellant as it does not come under the ·rarest of rare
cases'. Apart from that, in the instant case, proper G
.... -,i
sentencing procedure was not followed by the trial court,
and the High Court erred by approving the same. In the
circumstances, a sentence of rigorous imprisonment for
life will serve the ends of justice. (Para 106 and 108)
(1121-D-G] H
1066 SUPREME COURT REPORTS [2009] 6 S.C.R.

A Case Law Reference: Y""'

2005 (3) sec 114 referred to Para 6

2006 (10) sec 112 referred to Para 7

8 2005{12)SCC 438 referred to Para 8

2008(9) SCALE 652 referred to Para 8
\ ~
2008(5) Supreme 577 referred to Para 8

c (2000) 5 sec 197 referred to Para 9

2000 sec (Crl) 90 referred to Para 10

AIR 1977 SC 1063 referred to Para 13

D AIR 1956 SC 316 referred to Para 13
-..( '
AIR 1983 SC 446 referred to Para 13

AIR 1985 SC 1224 referred to Para 13

E AIR 1987 SC 350 referred to Para 13

AIR 1989 SC 1890 referred to Para 13

(1996) 10 sec 193

F AIR 1990 SC 79
referred to

referred to
Para 14

Para 15
'¥
-- '

(1992 Crl.LJ 1104 referred to Para 16

1952 SC 343 referred to Para 19

G AIR 1984 SC 1622 referred to Para 20

(1987) 2 SCR 710 relied on Para 23
. ,..
AIR 1991 SC 1463 relied on Para 24

H 402 US 183: 28 L.D. 2d 711 reffered to Para 27
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1067
GUJARAT

.... 'f 1994 (4l sec 353 relied on Para 28 A

1994 (2) sec 220 relied on Para 30

1996 (2) sec 175 relied on Para 31

2005 (2) sec 112 relied on Para 32
B
1980 (2) sec 684 relied on Para 33

-· 1983 (3) sec 470

2002(50) sec 234
relied on
relied on
Para 34
Para 35
c
AIR 1980 SC 898 relied on Para 3

159 us 523 1895 referred to Para 9

(2004) 1 sec 64 referred to Para 9

(1997) 5 sec 341 referred to Para 12 D
)..
,.
(2001) 9 sec 129 referred to Para 13
(2000) 8 sec 740 relied on Para 24
26 C.W.N. 1010 referred to Para 26 E
JT 2008(11) SC 658 relied on Para 26
AIR 1991 SC 1853 neld inapplicable Para 31
- . (1994) 2 sec 220 distinguished. Para 37
F .
(2003) 8 sec 666 distinguished Para 51
AIR 1973 SC 947 relied on Para 56
AIR 1974 SC 799 relied on Para 56
G
-. (1981) 3 sec 11 relied on Para 74
-;I

(1989) 3 sec 5 relied on Para 75
(1991) 4 sec 341 relied on Para 78
(1994) 4 sec 383 relied on Para 79 H
1068 SUPREME COURT REPORTS [2009J 6 S.C.R.

A AIR .1978 SC 597 referred to Para 84 y""

408 U.S. 238 referred to Para 86
402 U.S. 183, 196 (1971) referred to Para 86
AIR 2002 SC 70 relied on Para 99
B
(2002) 3 sec 121 relied on Para 100
AIR 2002 SC 132 relied on Para 101 -\ -
AIR 2007 SC 2868 relied on. Para 103
c
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 575 of 2007.

From the Judgment & Order dated 1'6.2.2006 of the High
Court of Gujarat at Ahmedabad in Confirmation Case No. 4 of
D 2005 with the Criminal Appeal No. 1221 of 2005.
-1'
Sudhir Kulshreshtha for the Appellant.

H. Wahi, E. Enatoli Serna and Mamta Tushar for the
Respondent.
E
The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. A large number of cases in
recent times coming before this Court involving rape and/or • ~

F 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
G 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 "
senten~e 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
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1069
GUJARAT [DR. ARIJIT PASAYAT, J.]
.... '1
the death sentence reference was made under Section 366 of A
. 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 B
dismissed.
-·> 2. Prosecution version as unfolded during trial is as
follows:

The complainant i.e. Nareshbhai Thakorebhai Patel is c
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 D
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 E
employed as Watchman of Sanudip Apartment and was
residing with his wife Savita and two children in a room of the
- 1
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 F
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
G

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
H
1070 SUPREME COURT REPORTS f2009] 6 S.C.R.

.,. ....
A 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
B 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
c 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
D
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
E 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
)f -
F 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
G 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,
H thereupon, lodged First Information Report about rape of his
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF1071
GUJARAT [DR. ARIJIT PASAYAT, J.]
..... ,, daughter and her murder, against the appellant on December A
19, 1999. On the basis of complaint of the complainant,
offences were registered against the appellant. The complaint
of the complainant was investigated by Pl SA Desai, who held
inquest on the dead body of the. deceased and made
arrangements for sending the same to hospital for postmortem B
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, c
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. Pl Desai recorded statements of those persons who
were supposed to be conversant with the facts of the case.
D
·~ Incriminating articles seized during the course of investigation
were sent to Forensic Science Laboratory (in short the 'FSL')
fpr 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,
E
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 F
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
f Sessions Case No. 79 of 2000. G
'j

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. H
1072 SUPREME COURT REPORTS [2009) 6 S.C.R.

't .....
A 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.
B 2. The second circumstance is that the deceased
victim who was aged about 10 years was residing
with her parents in flat No.N2 of Sanudip Apartment
located on Rander Road of Surat City.
..\ -
c 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.
D 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.

E 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.
F
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.

G 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
H Adajan Patia, Surat.
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1073
GUJARAT [DR. ARIJIT PASAYAT, J.]
..... ~
8. The eighth circumstance is that after PW-24 had A
"'- 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.
B
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 anq on enquiry being
c
made the appellant had m~de 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 D
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.
E
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.
F
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, G
~ 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
H
1074 SUPREME COURT REPORTS [2009] 6 S.C.R.

A cannot also be relied upon as police was present. ·The concept ) ...
of last seen together cannot be pressed into service in the
.A'-
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
B 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 conclus_ion of the High Court. Similarly, the plea relating
to the extra judicial confession was also not accepted. The High ·
c 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
D
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.
E
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. •
F 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
G 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
H nevertheless the Court has taken care of analyzing his
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF1075
GUJARAT [DR. ARIJIT PASAYAT, J.]
--; ¥
evidence after being satisfied that child was speaking the truth. A.

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 UP. v. Satish [2005 (3) sec 114] it was noted as follows:

"22. The last seen theory comes into play where the time- B
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 c
to positively establish that the deceased was last seen with
the accused when there is a long gap and possibility of
other persons coming iil between exists. In the absence
of any other positive evidence to conclude that the
accused and the deceased were last seen together, it D
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." ·
E
7. In Ramreddy Rajeshkhanna Reddy v. State of A.P.
[2006 (10) sec 172] it was noted as follows:
-1'

"27. The last~seen theory, furthermore, comes into play
where the time gap between the point of time when the F
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". G
j

(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 f-1
1076 SUPREME COURT REPORTS [2009] 6 S.C.R.
'1 ,..
A of A.P. (2008(9) SCALE 652) and in Manivel & Ors. v. State
of Tamil Nadu ( 2008(5) Supreme 577).

9. In Joseph and Paulo v. State of Kera/a [2000(5) SCC
197] it was, inter alia, held as follows:

B "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
c 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
D
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
E 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
F 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,

G
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
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1077
GUJARAT [DR. ARIJIT PASAYAT, J.]
accused appellant, we find in this case provided by the A
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 B
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 c
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 D ·
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 Kamataka (2000 SCC (Crl) 90]
it was, inter alia, observed as follows: E

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 F
not established when and where he and the deceased parted
company after being last seen. n

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 G
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 H
1078 SUPREME COURT REPORTS [2009J 6 S.C.R.
~

~

A evidentiary facts. To put it differently circumstantial evidence is · 'I
'
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
8 inferred or presumed.
13. It has been consistently laid down by this Court that
where a case rests squai"ely on circumstantial evidence, the
inference of guilt can be justified only when all the incriminating
,\ -
c 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 Hyderab.ad (AIR 1956 SC 316);
Earabhadrappa v. State of Kamataka (AIR 1983 SC 446);
State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224);
D Ba/winder Singh v. State of Punjab (AIR 1987 SC 350); Ashok
Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The .'ii

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
E 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 • ~

F 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 sec 193, wherein it has been observed thus:
G "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
H be no gap left in the chain of evidence. Further the proved
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1079
GUJARAT [DR. ARIJIT PASAYAT, J.]
, r
circumstances must be consistent only with the hypothesis A.
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
B
circumstantial evidence, such evidence must satisfy the
following tests:
--· j,
"(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established; c
(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 D
~.

. 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 E
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."
F
1°6. 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 G
.;.
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) iays down the following H
1080 SUPREME COURT REPORTS [2009] 6 S.C.R.

A rules specially to be observed in the case of circumstantial 'I
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,
B 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
c 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-
D stone of law relating to circumstantial evidence laid down by
J,
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
E observed thus:
"It is well to remember that in cases where the evidence
is of a circumstantial nature, the circumstances from which

F
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
t
-
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
G 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."
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1081
GUJARAT [DR. ARIJIT PASAYAT, J.]

- 'Y 20. A reference may be made to a later decision in A
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 B
precec:lent in the word~ 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
c
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 D
).: 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 E
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 F
show that in a~ human probability the act must have been
done by the accused.

21. Orie of the other important circumstances is that the
accused appellant had shown the plar,e of incident where the
G
-
' dead body of the c:leceased 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
earrijlgs belonging to the deceased. Human blood was found
on the T-shirt of the accused. The falsity of defence plea has
H
1082 SUPREME COURT REPORTS [2009] 6 S.C.R.

A been regarded as an additional link in the chain of "f -;....

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,
B 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
c 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
D be the object of law which must be achieved by imposing
appropriate sentence. Therefore, law as a corner-stone of the -f
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
E 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.
F 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
G ~

deep-seated mutual and personal rivalry may not call for penalty ~

of death. But an organised CQme 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
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1083
GUJARAT [DR. ARIJIT PASAYAT, J.]
...' y
thus: A

"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
B
\ 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 c
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 D
).
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
E
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
F
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
G

create cases of apparent injustice that are serious and
widespread.
H
1084 SUPREME COURT REPORTS [2009] 6 S.C.R.

A 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
B 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
c 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
D circumstances of each case, for deciding just and appropriate
j_
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.
E 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
F the infinite variety of circumstances that may affect the gravity
t
-
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,
G is the only way in which such judgment may be equitably
distinguished.
'
28. In Jashubha Bharatsinh Gohi/ 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
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF1085
GUJARAT [DR. ARIJIT PASAYAT, J.]

new challenges and mould the sentencing system to meet these A
- 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 B
sentencing process has to be stern where it should tie. Even
though the principles were indicated in the backgfound 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
c
the social order in many cases may be in reality a futile
exercise. The socia.1 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 D
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 E
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 WB. (1994 (2)
SCC 220), this Court has observed that shockingly large F
number of criminals go unpunished ther~by 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. G
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 H
1086 SUPREME COURT REPORTS (2009] 6 S.C.R.

f
A 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
B 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
-4 _.,
been committed not only against the individual victim but also
against the society to which the criminal and victim belong. The
c 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 Pl!blic abhorrence and it
should "respond to the society's cry for justice against the
criminal". If for extremely heinous crime of murder perpetrated
D in a ve_ry brutal manner without any provocation, most deterrent - -1,
punishment is not given, the case of deterrent punishment will
lose its relevance.

32, These aspects have been elaborated in State of M.P.
E 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) t- ....

F "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,
G 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
H to say that the very fact that persons of reason, learning
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1087
GUJARAT [DR. ARIJIT PASAYAT, J.]

and light are rationally and deeply divided in their opinion A
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 B
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 c
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
D
·~ 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 E
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 F
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 G
> 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 H
.
~

·,
1088 SUPREME COURT REPORTS (2009] 6 S.C.R.

A (3) sec 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 (supra) will have to be culled out and applied
to the facts of each individual case where the question of
8
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
c culpability.

(ii) Before opting for the death penalty the
circumstances of the 'offender' also require to be
taken into consideration along with the
D 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
E 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
F circumstances of the crime and all the relevant
circumstances.
(iv) A balance sheet of aggravating and mitiga\ing
circumstances has to be drawn up and in· doing so
G 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
H Singh v. State of NCT of Delhi (2002 (5)SCC 234 ] : (SCC p.
.- RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1089
GUJARAT [DR. ARIJIT PASAYAT, J.]
/
'r
271, para 58) A
... "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 B
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: c
(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 D
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 E
gains of a person vis-a-vis whom the
murderer is in a dominating position or in a
4 position of trust; or murder is committed in
the course for betrayal of the motherland.
F
(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' G
.... ~ 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.
H
1090 SUPREME COURT REPORTS [2009] 6 S.C.R.
•
"i
A (4) When the crime is enormous in '
proportion. For instance whe.n 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
B committed.

(5) When the victim of murder is an innocent
child, or a helpless woman or old or infirm
person or a person vis-a-vis whom the
~ -
murderer is in a dominating position, or a
c 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
D 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
E
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. ,.
F 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
G 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
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1091
GUJARAT
, y
play. In fact in most of the cases where death sentence are A
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 B
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 c
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
D
.y sentence .

40. Looked at from any angle the judgment of the High
Court confirming the death sentence does not want any
interference. The appeal fails and is dismissed.
E
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 F
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
G
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:-

H
1092 SUPREME COURT REPORTS (2009) 6 S.C.R.

1
A I. The 1st circumstance is that the deceased was '

II.
raped and she died a homicidal death.

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
B
located on Rander Road of Surat City.

Ill. 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
c floor of Happy Horne 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
D which the victim had reposed confidence in the
appellant.

v. The 5th circumstance which is sought to be proved
is that between 8.45 p.rn. and 9.00 p.m. on
December 17, 1999 the appellant was last seen
E 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.rn.
F 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.rn.
and 9.30 p.rn on December 17, 1999 Vishnubhai
G Bahadur (PW-24) had seen the appellant taking the ,I,
'
deceased on his cycle near Adajan Patia, Surat. ""'!"

VIII. The 8th circumstance is that after PW-24 had
disclosed before Shankarbhai (PW-6) and others
H that he had seen the appellant going on a cycle
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1093
GUJARAT [ASOK KUMAR GANGULY, J.]
,__
towards Jakat-Naka with the deceased, a search A
....... 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 B
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.
c
X. The other circumstance which is sought to be
proved by the prosecution is that on arrival of police
at Sanudip Apartmenf after being informed by
complainant Nareshbhai the appellant had shown
the place of incident where the dead body of the D
deceased was found lying.

XI. The next circumstance is that at the instanee of the
accused appellant his cycle and school bag of the
deceased were recovered and school bag was E
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. F

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 F
), 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 principle
formulated by the majority judgment in Bachan Singh v. State
of Punjab - Al R 1980 SC 898, by this Court for imposing death
H
1094 SUPREME COURT REPORTS [2009] 6 S.C.R.

A 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.
B
5. To prove the fourth circumstance, the prosecution
examined witness Kailashben, who is the mother of the t ~
deceased. Kailashben deposed that the appellant used to take
the victim to school on his cycle and leave her at school when
c 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
D 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
E 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
F considered its conclusion in respect of the 4 th 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'.
G
:~
"
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
H must have been 12 years old.
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1095
GUJARAT [ASOK KUMAR GANGULY, J.]

8. In the examination-in-chief, she stated that she went to A
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 B
.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
qeceased), was playing badminton with the appellant". c
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 formulated D
by Justice Brewer in Wheeler v. United States - 159 US 523
(1895).

10. Justice Brewer opined that the evidence of a child
witness is· not to be rejected per se but rule of prudence .E
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
F
accepted by this Court in Ratansinh. Dalsukhbhai Na yak v.
State of Gujarat - (2004) 1 sec 64, at pg. 67 and also in
Nivrutti Pandurang Kokate and Others v. State of Maharashtra
- (2008) 12 sec 565, at pg. 567.
,,
,, 12. Even earlier than that, this Court in Dattu Ramrao G
J.
Sakhare and Others v. State of 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 H
-~
1096 SUPREME COURT REPORTS [2009] 6 S.C.R.

A dependable evidence (See page 343).
13. In Suryanarayana v. State of Kamataka - (2001) 9
SCC 129, this Court held that corroboration of the testimony
of a child witness is not a rule but is a measure of caution and
prudence (See page 133).
B
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
c 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
D 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
E 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
F 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
G
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
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF1097
GUJARAT [ASOK KUMAR GANGULY, J.]
r cycle in front of his lorry from which he was selling Chinese food. A

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 B
on the question of 'last seen'. The prosecution sought to prove
this 'last seen' theory on the basis of the 5th and 7th
- r 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 c
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 D
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 E
I
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, F
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." G
,L
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 H

'
1098 SUPREME COURT REPORTS [2009] 6 S.C.R.

A 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)
B
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, Ji -
came to his house for the purpose of searching the deceased.
Then Chandervadan went with them to search the deceased
c 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 b~th 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
D 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 ·
E 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' -
F 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.
G
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
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF1099
GUJARAT [ASOK KUMAR GANGULY, J.]

of the incident by PW .24 on 18.12.1999 at about 1.00 to 1.30 A
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.
B
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:-
c
"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 0
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." E

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
R. Patil & others v. State of Karnataka and others - (2000) 8
F
SCC 740]. Therefore, 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. G

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
H
1100 SUPREME COURT REPORTS [2009] 6 S.C.R.

t
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 rejects it. (See the Division Bench Judgment
of Calcutta High Court in King Emperor v. Biseswar Dey and
B others - 26 C.W.N. 1010). This is still good law. The same
principle has been accepted after elaborate discussion by this
Court in Mohd. Azad @ Samin v. State of West Bengal
reported in JT 2008(11) SC 658 at 665 of the report. (See para . ~

21).
c 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
D 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.

E 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 >
F 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
G 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 n_on-consideration of the other
part in which the appellant has retracted his confession and
H especially when it was affirming death sentence against the
\
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1101
GUJARAT [ASOK KUMAR GANGULY, J.]
appellant. A.

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. B
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 alias Surendra Tiwari v. c
State of Madhya Pradesh - AIR 1991 SC 1853. In that
judgment, a three judge Bench of this Court held that even when
·group of blood stains found on the clothes of the a·ccused Is
not determined, the same is of no consequence when there is'
... direct evidence against the accused that he inflicted a knife D
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 E
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 F
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 G
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 H
1102 SUPREME COURT REPORTS [2009] 6 S.C.R.

A 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
B 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
c cycle when rickshaw was not available. Moreover, this
witness has identified cloths, golden earrings and silver
anklets of deqeased Ms. Khushbu. What you want to say
about it?"

D 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
E
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
F 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
G case, compared this case with the decision of this Court in the
case of Dhananjoy Chatterjee alias Dhana v. State of W.B. -
(1994) 2 sec 220, and justified the death penalty in this case
as similar penalty was imposed in the case of Dhananjoy
(supra).
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF1103
GUJARAT [ASOK KUMAR GANGULY, J.]
.... ,.
38. There are vital differences in the facts of the two cases. A
In the present case, there is no allegation that the appellant ever
misbehaved with the deceased.

39. In Ohananjoy (supra), prior to the date of crime, there
were many occasions when the victim had been teased by
B
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 11im 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
c
security agency which had hired Dhananjoy and deployed in
-their apartment. The agency had arranged fo~ 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. D

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
E
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
F
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 G
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.
H
1104 SUPREME COURT REPORTS [2009] 6 S.C.R.
,.,,
't
A 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.
B
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
c 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.

D 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 1'
belonged to the mother of the deceased.

48. Thus, these items connected unerringly Dhananjoy with
the crime and are crucial in nature.
E
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.
F
51. In Megh Singh v. State of Punjab - (2003) 8 SCC 666,
this Court held that in criminal 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.
-·
G
52. Criminal cases depend on facts and a single significant • ...
factual de\ail may alter the entire conclusion (para 18 page
671).

53. Death Penalty is a vexed subject in our legal system.
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF1105
GUJARAT [ASOK KUMAR GANGULY, J.]

"' In the 35 th Report of the Law Commission on Capital A
._ 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 B
to the Law Commission.
- ,.I
54.The Commission gave a detailed Report running irito
several volumes. Ultimately the Commission recommended its
retention but also recommended certain amendments of the c
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 D
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]
E
(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
;l
of the Report]"

55. The Commission's recommendations for its retention F
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 G
" 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
H
1106 SUPREME COURT REPORTS [2009] 6 S.C.R.

A punishment.·
(Emphasis added)

56. Despite these recommendations, the validity of death
-
sentence came up for consideration before this Court on
B several occasions. In one of the earliest cases, in the case of
Jagmohan Singh v. State ofU.P-AIR 1973 SC 947, this Court
upheld its validity, even though, it acknowledged that this is a
difficult and i:;ontroversial subject. Soon thereafter the matter
came up for consideration before this Court again in Ediga
c Anamma v. State of Andhra Pradesh -AIR 1974 SC 799, in
which this Court laid 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
0 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
E 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.
F 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
G 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
H wifely infidelity pushed the criminal into the crime. On the
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1107
GUJARAT [ASOK KUMAR GANGULY, J.]
~
other hand, the weapons used and the manner of their use, A
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 B
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 c
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 D
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
E
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
F
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). G
~

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 H
1108 SUPREME COURT REPORTS [2009] 6 S.C.R.

; .
A 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
B
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:
c
(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.
D
(3) The probability that the accused would not commit
criminal acts of violence as would constitute a continuing
threat to society.

E (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
F committing the1offence.

(6) That the accused acted under the duress or domination
of another person.

(7) That the condition of the accused showed that he was
G ,I
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct."

61. After recording ~e submissions of the learned counsel,
the Court in Paragraph 205 at page 944 of the report accorded
H its approval to the same by saying that those are "undoubtedly
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1109
GUJARAT [ASOK KUMAR GANGULY, J.]
'I' relevant circumstances and must be given great weight in the A
determination of sentence". Therefore apart from the mitigating
circumstances formulated in Ediga Anamma, those suggested
by Dr. Chita/ey and approved by this Court, unless they overlap,
form part of the ratio in Bachan Singh as mitigating
circumstances accepted by this Court. B

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.
c
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
Sectio-n 235(2) of the said Code. D

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 E
'
upheld in Bachan Singh (supra) as the learned Judges have
said that the legislative policy in sentencing is discernable frorn
Jo
those two Sections.

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

67. In Bachan Singh (supra), this Court interpreted those
G
,l
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- H
1110 SUPREME COURT REPORTS [2009] 6 S.C.R.

A sentence hearing, at which stage, he can bring on record
material or evidence, which may not be strictly relevant tc1
or connected with the particular crime under inquiry, bu·~ ·
nevertheless, have, consistently with the policy underlined
in Section 354(3), a bearing on the choice of sentence
B 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
J.:
offences, including one under Section 302, Penal Code, 1'

the court should not confine its consideration "principally"
c 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 makEi
out a case for imposition of death sentence, it has to discharge
D a very heavy and an onerous burden. In such cases, the
'r
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
E 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 crim:i
has been committed and specially the aggravatin~ ;,.
circumstances which warrant a death penalty. in such exercise '
F 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
G 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:-
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1111
GUJARAT [ASOK KUMAR GANGULY, J.]
¥
"... Nonetheless, it cannot be over-emphasised that A
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 B
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 w.ith extreme
infrequency............. It is, therefore, imperative to voice the
concern that courts, aided by the broad illustrative c
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 D .·
_, 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)
E
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 F
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.

4'
70. Section 235(2) as interpreted by this Court in Bachan G
,. 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 H
"

1112 SUPREME COURT REPORTS [2009] 6 S.C.R.

~
A 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
B circumstances mentioned in para']raph 204 (page 944 of the
report) as those mitigating circurr:stances 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
c 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 Sif'!gh (supra). The mandate of Article
141 of the Constitution cannot be ignored either by the trial Court
or the High Court.
D
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
·E 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
"
F 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).

G 74. Even without referring to Bachan Singh, in Muniappan
),
v. State of Tamil Nadu - (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
H the accused on sentence was not to be discharged without
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1113
GUJARAT [ASOK KUMAR GANGULY, J.]
·~
putting formal questions to the accused. The obligation of A
.. 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 B
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
c
entirely different order than those which come into play on
the question of conviction".

75. Relying on the principles laid down in Bachan Singh
in Al/auddin Mian v. State of Bihar - (1989) 3 SCC 5, the D
·-f 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 E
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
F
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 G
., 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 H
1114 SUPREME COURT REPORTS [2009] 6 S.C.R.

A 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
B
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
c to place the relevant material bearing on the question of
sentence before it and thereafter pronounce the sentence
to be imposed on the offender."

78. In a subsequent three judge bench judgment of
D Ma/kiyat Singh and others v. State 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:-
E
"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
F 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
G 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
H adduce oral evidence. But it does not prevent to show the
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1115
GUJARAT [ASOK KUMAR GANGULY, J.]
~
grounds to impose lesser sentence on A-1. This Court in A
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,
B
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
:J
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
c
disapproved the sentencing procedure in a cryptic manner. It
was held that it exposes the lack of sensitiyeness on the part
of the Court in dealing with such cases. (Para 17, pg. 389 of
report).
D
._,
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. E

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
F
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, G
... 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 H
1116 SUPREME COURT REPORTS [2009] 6 S.C.R.

A 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
B
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
c 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
D 167, page 937).
84. Thus, it appears that this Court upheld the
constitutionality of death penalty on the aforesaid doctrine of
'due process' which has been introduced in our constitutional
jurisprudence in the case of Smt. Maneka Gandhi v. Union of
E
India and another- 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
F 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).

G 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 struck down in Furman v. Georgia
by a majority of 5-4, the death penalty statutes at issue as cruel
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1117
GUJARAT [ASOK KUMAR GANGULY, J.]

and unusual in view of the denial of the 'due process' A
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. B

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 C
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 o
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 E
way it was interpreted in Bachan Singh (supra) having regard
to ttie 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 F
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 G
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 H
1118 SUPREME COURT REPORTS [2009) 6 S.C.R.

A 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:-
B "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
c 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
D committing the crime is a threat to the society. The Court must
I•
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'.
E
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
F 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 be trifled with. It
is pregnant with respect for the inviolability of human life. That
G 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
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1119
GUJARAT [ASOK KUMAR GANGULY, J.]

· this expression 'rarest of rare case' has been interpreted by A
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.

98. In the case of Chaman v. State of NCT- (2001) 2 SCC B
28, the Court after finding the commission of crime held that a
=
girl of 1 and years was raped and killed but did not approve
uf 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 C
of rare case'.

99. In the case of Bantu @ Naresh Giri v. State of Uttar
Pradesh- AIR 2002 S.C. 70, the accused was sentenced to
death for the rape and murder of a 6 year old child. In Para 8 D
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 · E
commuted to life sentence.

100. In Surendra Pal Singh v. State of Gujarat- (2005) 3
sec 127, a minor girl was raped and killed and the Sessions
Court imposed death penalty and the High Court of Gujarat also F
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 G
imprisonment.

101. In Amrit Singh v. State of Punjab- AIR 2002 SC 132,
the accused was found guilty of rape of a minor girl and also
of her death. Death occurred not as a result of strangulation but H
1120 SUPREME COURT REPORTS [2009] 6 S.C.R.

A 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.ln para 21 of page 136 of the judgment, this Court held
B
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.

c 103. In the case of Ku/winder Singh v. State of Punjab-
AIR 2007 SC 2868, Hardip Kaur was found to have been raped
by the accused and on her protest, she was found to have been
strangulated as a result of which she died: Another p~rson,
Joginder Kaur also died in the same incident as a result of
D 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
E
instant case the appellant is a young man and his age was 28
years qld 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
F 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.

G 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:-
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1121
GUJARAT [ASOK KUMAR GANGULY, J.]
t
"The mood and temper of the public with regard to the A
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 B
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
c
faith that there is a treasure, if you can only find it, in the
heart of every man; these are the symboJs which in the
treatment of crime and criminal, mark and measure the
stored-up strength of a nation, and are sign and proof. qt
the living virtue in it".

106. For the reasons discussed above and in view of D
mitigating circumstances and the law laid down in Bachan
Singh (supra) and the various gaps in the prosecution
evid~ce, 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 E
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 qn charges of
" robbery which, in my opinion, was not proved and on the
alleged conviction on robbery no sentence was awarded to the F
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.
G
•
' 108. In my humble opinion instead of death sentence a
sentfance of rigorous imprisonment for life will serve the ends
of justice.
1
109.With the aforesaid modification on the sentence the H
1122 SUPREME COURT REPORTS (2009J 6 S.C.R.

A appeal is dismissed to the extent indicated above.

ORDER

Though both of us have agreed that conviction is to be
maintained, one of us Pasayat, J has confirmed the death
B 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.

C R.P. Matter referred to larger Bench.

,

../