Holding

The death sentence was commuted to life imprisonment, to be served for the convict's natural life subject to remission by the Government.

Summary

Rameshbhai Chandubhai Rathod, a 27‑year‑old watchman, was convicted of raping and murdering a ten‑year‑old girl residing in the building where he worked. The trial court sentenced him to death under Section 302 IPC, a decision affirmed by the Gujarat High Court as a "rarest of rare" case. On appeal before a two‑judge Supreme Court bench, the judges differed on sentencing: Justice Pasayat upheld the death penalty, while Justice Ganguli advocated life imprisonment, citing the appellant's youth, potential for rehabilitation, and a procedural lapse under Section 235(2) read with Section 354(3) of the CrPC. The majority held that death should be imposed only in exceptional cases and, considering mitigating factors, commuted the death sentence to life imprisonment, to be served for the convict's natural life subject to remission by the Government. The Court also noted that the trial court had, in fact, given the appellant sufficient opportunity to argue sentencing issues. Consequently, the appeal was disposed of with the death sentence replaced by life imprisonment.

Issues considered

Whether the facts of the case qualify as a 'rarest of rare' warranting the death penalty.
Whether the trial court complied with the statutory requirement of Section 235(2) read with Section 354(3) of the CrPC in affording the accused an opportunity to argue sentencing.
Whether mitigating circumstances such as the appellant's age and possibility of rehabilitation justify commuting death to life imprisonment.
Interpretation of 'imprisonment for life' under Section 302 IPC in light of Articles 72, 161 of the Constitution and Section 433-A of the CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 235(2), s. 354(3), s. 433-A
Indian Penal Code, 1860s. 302, s. 363, s. 366, s. 376, s. 397

Subjects

rapemurderchild victimdeath penaltylife imprisonmentrarest of raremitigating circumstancesrehabilitationSection 235 CrPCSection 302 IPCcapital punishment

Judgment

(2011] 1 S.C.R. 829

RAMESHBHAI CHANDUBHAI RATHOD A
v.
THE STATE OF GUJARAT
(Criminal Appeal No. 575 of 2007)
JANUARY 24, 2011
B
[HARJIT SINGH BEDI, P. SATHASIVAM AND
CHANDRAMAULI KR. PRASAD, .JJ.]

Sentence/Sentencing: Death sentence or life
imprisonment - In case of rape and murder of young girl of C
tender age - Difference of opinion between Judges on
sentencing part - Pasayat, J. observed that the case fell within
the category of the rarest of rare cases as the deceased was
a helpless child of_Jender age and the appellant, being a
watchman in the building in which she was residing was in a D
position of trust, and as the murder and rape was particularly
brutal, the death sentence was the only adequate one -
Ganguli, J. differed on this aspect and held that a sentence
of life imprisonment was proper one in the light of mitigating
circumstance particularly the young age of the appellant and E
the possibility that he could be rehabilitated and would not c
commit any offence later on - Held: There is a very thin line
on facts which separates the award of a capital sentence from
a life sentence in the case of rape and murder of a young
child by a young man - The broad principle is that the death F
sentence is to be awarded only in exceptional cases - The
appellant was a young man, only 27 years of age, it was
obligatory on the trial court to have given a finding as to a
possible rehabilitation and reformation and the possibility that
he could still become a useful member of society in case he G
was given a chance to do so - In the light of the findings
1 recorded by Ganguli, J., it would not be proper to maintain the
death sentence on the appellant - At the same time, the
gravity of the offence, the behaviour of the appellant and the
. I

829 H
830 SUPREME COURT REPORTS [2011] 1 S.C.R.

A fear and concern such incidents generate in ordered society,
cannot be ignored - The death sentence awarded is
commuted to life which must extend to the full life of the > •
appellant subject to any remission or i;ommutation at the
instance of the Government for good and sufficient reasons
B - Crime against women - Penal Code, 1860 - s. 302 - Code
of Criminal Procedure, 1973 - s.235 r.w. s.354, s.433-A.

The trial court convicted the accused-appellant for
raping and murdering a girl of tender age. The High
C Court upheld the conviction order. The judgment of the
High Court was challenged by the appellant in the
Supreme Court and after the grant of special leave, the
matter was heard by Division Bench. The Bench
delivered two judgments on 25th February 2009. The two
Hon'ble Judges were of the unanimous opinion that the
D conviction of the appellant was to be maintained,
however, a difference of opinion arose on the sentencing
part. Pasayat, J. observed that the case fell within the
category of the rarest of rare cases as the deceased was
a helpless child of tender age and the appellant, being a
E watchman in the bll!_lding in which she was residing with
her parents, was in a position of trust, and as the murder
and rape was particularly brutal, the death sentence was
the only adequate one. Ganguli, J. however differed on
this aspect and held that as there was some uncertainty
F with the nature of the circumstantial evidence and that
mitigating circumstance particularly the young age of the
appellant and the possibility that he could be rehabilitated
and would not commit any offence later on, could not be
ruled out, and that the statutory obligation cast on the trial
G court under Section 235 (2) read with Section 354(3),
Cr.P.C. had been violated in as much that the appellant
was not given adequate opportunity to plead that the
sentence of life imprisonment was not proper.
Accordingly, the matter came up before this Court only
H on the question of sentence.
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 831
GUJARAT

Disposing oHhe appeal, the Court A
a
HELD: 1. There is very th.in line on facts which
separates the award of a capital sentence from a life
sentence in the case of rape and murder of a young child
by a young man and the subjective opinion of individual
8
Judges as to the morality, efficacy or otherwise of a death
sentence cannot entirely be ruled out. The broad principle
is that the death sentence is to be awarded only in
exceptional cases. Both Hon'ble Judges had relied
,extensively on .*Dhanonjoy Chatterjee's case. In that C
case, death sentence was awarded by the trial court on
similar facts and confirmed by the High Court and the
appeal too was' dismissed by this Court leading to the
execution of the accused. Ganguli J. had, however,
drawn a distinction on the facts of that case and the
instant one and held that as the appellant was· a young D
man, only 27 years of age, it was obligatory on .the trial
court to have given a finding as to a possible
rehabilitation and reformation and the possibility that he
could still become a· useful member of society in case he
was given a chance to do so. In the light of the findings E
recorded by Ganguli, J., it would not be proper to maintain
the death sentence on the appellant. At the same time, the
gravity of the offence, the behaviour of the appellant and
the fear and concern such incidents generate in ordered
society, cannot be ignored. A via-media ought to be F
· adopted in the light of the judgment of this Court in
**Ramraj's and ***Mu/la's case. In these two cases, this
Court had held that the term imprisonment for life which
is found in Section 302, IPC, would mean imprisonment
for the natural life of the convict subject to the powers of G
the President and the Governor under Articles 72 and 161
·of the Constitution of India or of the State Government
under Section 433-A, Cr.P.C. It was held that the Court
, should be free to determine the length of imprisonment
which would suffice the offence committed. Thus, despite H
832 SUPREME COURT REPORTS (2011) 1 S.C.R.

A the nature of the crime, the mitigating circumstances can
allow the court to substitute the death penalty with life
sentence. In the instant case, the death sentence
awarded to him is commuted to life with directions that
the life sentence must extend to the full life of the
B appellant but subject to any remission or commutation
at the instance of the Government for good and sufficient
reasons. [Para 2] [835-E-H; 836-A-D-F; 837-B]

**Ramraj vs. State of Chhattisgarh (2010) 1 SCC 573;
***Mui/a & Anr. State of Uttar Pradesh (2010) 3 SCC 508 ·-
C relied on.

Bachan Singh vs. State of Punjab 1980 (2) SCC 684;
Machi Singh vs. State of Punjab 1993 (3) 470; Ohanonjoy
Chatterjee vs. State of West Bengal 1994 (2) SCC 220 -
D referred to.

2. Some observations were made by Ganguly, J. on
the omission of the trial court in dealing with the question
of sentence on the principles underlying Section 235 read
E with Section 354, Cr.P.C. The observations made were a
little broad based on the facts of the instant case and
would present insurmountable practical difficulties for a
trial court. Even otherwise, the facts indicated that the
appellant had been given enough time and opportunity
for pleading on the question of sentence. [Para 3] [837-
F 0-E]

Case Law Reference
1980 (2) sec 684 referred to Para 1
G 1993 (3) sec 470 referred to Para 1
1994 (2) sec 220 referred to Paras 1, 2
(201 o) 1 sec 573 relied on Para 2
(201 O) 3 sec 508 relied on Para 2
H
. RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 833
GUJARAT
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal A
,, __.( No. 575 of 2007.

From the Judgment & Order dated 16.02.2006 of the High
Court of Gujarat at Ahmedabad in Confirmation Case No. 4 of
2005 with the Criminal Appeal No. 1221 of 2005. 8
Sudhir Kulshrehtha for the Appellant.
I. -· •
-{.. K. Enatoli Serna, Jesal, Hemantika Wahi for the
Respondent.
c
The Judgment of the Court was delivered by

HARJIT SINGH BEDl,J. 1. As the facts have been very
comprehensively given in the order of Pasayat, J., we will only
refer to such facts as are necessary for the disposal of the
reference which has been made to us. Suffice it to say that the D
,,. "f' accused-appellant Rameshbhai Chandubhai. Rathod, aged
about 28 years, was employed as a watchman in Sanudip
Apartments, Rander Road, Surat City. Flat No.A/2 was
·occupied by the complainant Nareshbhai Thakorebhai Patel,
his wife, a son Brijesh, aged 16 years, and the deceased, a E
daughter, a Class IV student in An.kur School. The accused-
appellant was residing with his wife Savita and two children in· ...
~- a one room tenement close by. On the 17th December 1999,
the complainant and his wife went to Udhana at about 8.00 p.m.
to attend a religious ceremony and on returning therefrom found F
that their daughter was missing. Frantic enquiries made by the
.. family, bore no result. The complainant thereupon lodged a FIR
at 2.30 a.m. on the 18th December 1999 with the Rander
Police Station to that effect. The complainant nevertheless
continued to search for the child and in due course ascertained G
"r from one Bipinbhai Bhandari, one of his friends, who told him
that his (Bhandari's) old servant Bishnubhai had told him that
he had seen the appellant taking the girl with him on his bicycle.
This information was conveyed to the police by the complainant.
H
834 SUPREME COURT REPORTS [2011] 1. S.C.R.

A The police made a search for the appellant but he could not
be immediately found but was ultimately located the next day
i.e. on the 19th December 1999 by Chandravadan Patel who
spotted him sitting in an open space near the vegetable
market. The appellant made an extra judicial confession to him
B that he had raped and killed the child. The police was,
accordingly, informed and they took the appellant into custody.
The appellant also made a disclosure to the complainant as to
the place of incident and the dead body was recovered from
that place. On the completion of the investigation, the accused
c was charged for offences punishable under Sections 363,
366,376,302 and 397 of the IPC and brought to trial. The trial
court on a minute appreciation of the evidence which was
exclusively circumstantial in nature, held that the case against
the appellant had been proved beyond doubt, and accordingly
convicted him and sentenced him to death for the commission
0
of the offence punishable under section 302 and to various
terms of imprisonment for the other offences. The matter was,
thereafter, referred to the High Court and the accused also filed
an appeal challenging his conviction. The High Court confirmed
the reference and dismissed the appeal. The High Court also
E found that the case against the accused fell within the category
of the rarest of the rare cases, as envisaged in Bachan Singh
vs. State of Punjab 1980 (2) SCC 684 and Machi Singh vs.
State of Punjab 1993 (3) sec 470 as followed and clarified
in a series of other judgments subsequently, particularly, in
F Dhanonjoy Chatterjee vs. State of West Bengal 1994 (2) SCC
220 and observing that in the balance sheet of the aggravating
and mitigating circumstances, the former were pre-dominant,
confirmed the death sentence. The judgment of the High Court
was challenged by the appellant in this Court and after the grant
G of special leave, the matter was heard by a Division Bench. The
Bench delivered two judgments on the 25th February 2009 and
while the two Hon'ble Judges were of the unanimous opinion
that the conviction of the appellant was to be maintained, a
difference of opinion arose as to the sentence that was to be
H awarded with Pasayat,J. observing that the case fell within the
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 835
GUJARAT [HARJIT SINGH BEDI, J.]
category of the rarest of rare cases as the deceased was a A
......( helpless child of tender age and that the appellant, being a
watchman in the building in which she was residing with her
pare,nts, was in a position of trust, and as the1murder and rape
was particularly brutal, the death sentence was the only
adequate one. Ganguli, J. however differed on this aspect and 8
held that as there was some uncertainty with the nature of the
circumstantial evidence and that the mitigating circumstance
-... particularly the young age of the appellant and the possibility
that he could be rehabilitated and would not commit any offence
later on, could not be ruled out, and that the statutory obligation c
cast on the trial court under Section 235 (2) read with Section
354 (3) of the Cr.P.C. had been violated inasmuch that the
accused had not been given adequate opportunity to plead on
the question of sentence· and also citing a large number of
cases including those of rape and murder of young children,
D
" -...,, opined that a sentence of life imprison!}lent was the proper one.
This matter has, accordingly, been referred to us only on the
question of the sentence.

2. As already mentioned ab6ve, both Hon'ble Judges have
relied on a number of cases which are on almost identical facts E
in support of their respective points of view. We notice that
there is a very thin line on facts which separates the award of
~
a capital sentence from a life sentence in the case of rape and
murder of a young child by a young man and the subjective
opinion of individual Judges as to the morality, efficacy or F
otherwise of a death sentence cannot entirely be ruled out. It is
now well settled that as on today the broad principle is that the
death sentence is to be awarded only in exceptional cases.
Both Hon'ble Judges have relied extensively on Dhanonjoy
Chatterjee's case (supra). In this case the death sentence had G
~
been awarded by the trial court on similar facts and confirmed
by the Calcutta High Court and the appeal too dismissed by
this Court leading to the execution of the accused. Ganguli,J.
has, however, drawn a distinction on the facts of that case and
the present one and held that as the appellant was a young· H
i
'
836 SUPREME. COURT REPORTS [2011] 1 S.C.R.

A man, only 27 years of age, it was obligatory on the trial court
to have given a finding as to a possible rehabilitation and
reformation and the possibility that he could still become a
useful member of society in case he was given a chance to do
so. We are, therefore, of the opinion that in the light of the
B findings recorded by Ganguli,J. it would not be proper to
maintain the death sentence on the appellant At the same time
the gravity of the offence, the behaviour of the appellant and
the fear and concern such incidents generate in ordered
society, cannot be ignored. We, therefore, feel that a via-media
c ought to be adopted in the light of the judgment of this Court in
Ramraj vs. State of Chhattisgarh (2010) 1 SCC 573 and
Mui/a & Anr. State of Uttar Pradesh (2010) 3 SCC 508. In
these two cases, this Court has held that the term imprisonment
for life which is found in Section 302 of the IPC, would mean
imprisonment for the natural life of the convict subject to the
0
powers of the President and the Governor under Articles 72 and
161 of the Constitution of India or of the State Government under
Section 433-A of the Code of Criminal Procedure. In Mu/la's
case (supra), this Court has said :

E "We are in complete agreement with the above
dictum of this Court. It is open to the sentencing court to
prescribe the length of incarceration. This is especially true
in cases where death sentence has been replaced by life
imprisonment. The court should be free to determine the
F length of imprisonment which will suffice the offence
committed. Thus we hold that despite the nature of the
crime, the mitigating circumstances can allow us to
substitute the death penalty with life sentence.

Here we would like to note th.at the punishment of life
G
sentence in this case must extend to their full life, subject
to any remission by the Government for good reasons.

For the foregoing reasons and taking into account ,
all the aggravating and mitigating circumstances, we
H confirm the conviction, however, commute the death ·
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 837
GUJARAT [HARJIT SINGH BEDI, J.]
sentence into that of life imprisonment. The appeal is A
... __..( disposed of accordingly."

In arriving at its conclusion, the Court relied on similar
observations made in the case of Ramraj (supra). We are,
therefore, of the opinion that the appellant herein ought to be B
awarded a similar sentence. We accordingly commute the
death sentence awarded to him to life but direct that the life
seAtence must extend to the full life of the appellant but subject
--J. to any remission or commutation at the instance of the
Government for good and sufficient reasons.
c
3. As already noticed above, Ganguli, J. has made some
observations on the omission of the trial court in dealing with
the question of sentence on the principles underlying Section
235 read with Section 354 of the Cr.P.C. We are of the opinion
that some of the observations made are a little broad based D
~ on the facts of the present case and would present
""' insurmountable practical difficulties for a trial court. Even
otherwise the facts indicate that the appellant had been given
enough time and opportunity for pleading on the question of
sentence. We accordingly dispose of this appeal in the above E
manner.

D.G. Appeal disposed of.
--~