[REPORTABLE]

            IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE JURISDICTION

    CRIMINAL APPEAL NO. 575 OF 2007

Rameshbhai Chandubhai Rathod                 ……Appellant

Vs.

The State of Gujarat                                 …….Respondent

J U D G M E N T  

HARJIT SINGH BEDI,J.

1. As the facts have been very comprehensively given in the  

order of Pasayat,  J.,  we will  only refer to such facts as are  

necessary  for  the  disposal  of  the  reference  which has  been  

made  to  us.   Suffice  it  to  say  that  the  accused-appellant  

Rameshbhai Chandubhai Rathod, aged about 28 years, was  

employed  as  a  watchman  in  Sanudip  Apartments,  Rander  

Road,  Surat  City.   Flat  No.A/2  was  occupied  by  the  

complainant  Nareshbhai  Thakorebhai  Patel,  his  wife,  a  son  

Brijesh, aged 16 years, and the deceased, a daughter, a Class  

1

IV  student  in  Ankur  School.   The  accused-appellant  was  

residing with his wife Savita and two children in a one room  

tenement  close  by.  On  the  17th December  1999,  the  

complainant and his wife went to Udhana at about 8.00 p.m.  

to  attend  a  religious  ceremony  and  on  returning  therefrom  

found 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 from one Bipinbhai Bhandari,  one of his  

friends,  who  told  him  that  his  (Bhandari’s)  old  servant  

Bishnubhai  had  told  him  that  he  had  seen  the  appellant  

taking the girl with him on his bicycle.  This information was  

conveyed to the police by the complainant.  The police made a  

search  for  the  appellant  but  he  could  not  be  immediately  

found but was ultimately located the next day i.e. on the 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 that he had  

2

raped  and  killed  the  child.   The  police  was,  accordingly,  

informed  and  they  took  the  appellant  into  custody.   The  

appellant also made a disclosure to the complainant as to the  

place of incident and the dead body was recovered from that  

place.  On the completion of the investigation, the accused was  

charged  for  offences  punishable  under  Sections  363,  

366,376,302 and 397 of the IPC and brought to trial.  The trial  

court  on  a  minute  appreciation  of  the  evidence  which  was  

exclusively circumstantial in nature, held that the case against  

the appellant had been proved beyond doubt, and accordingly  

convicted him and sentenced him to death for the commission  

of  the offence punishable under section 302 and to various  

terms of imprisonment for the other offences.  The matter was,  

thereafter,  referred to the High Court  and the accused also  

filed an appeal  challenging  his  conviction.   The High Court  

confirmed the reference and dismissed the appeal.  The High  

Court also found that the case against the accused fell within  

the category of the rarest of the rare cases, as envisaged in  

Bachan Singh vs.  State of  Punjab 1980 (2)  SCC 684 and  

Machi  Singh  vs.  State  of  Punjab 1993  (3)  SCC  470  as  

3

followed  and  clarified  in  a  series  of  other  judgments  

subsequently,  particularly,  in   Dhanonjoy  Chatterjee  vs.  

State of West Bengal 1994 (2) SCC 220 and observing that  

in  the  balance  sheet  of  the  aggravating  and  mitigating  

circumstances, the former were pre-dominant, confirmed the  

death  sentence.   The  judgment  of  the  High  Court  was  

challenged by the appellant in this Court and after the grant of  

special leave, the matter was heard by a Division Bench.  The  

Bench delivered two judgments on the  25th February 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 awarded with Pasayat,J. observing that the case  

fell  within  the  category  of  the  rarest  of  rare  cases  as  the  

deceased  was  a  helpless  child  of  tender  age  and  that  the  

appellant, being a watchman in the building in which she was  

residing with her parents, was in a position of trust, and as  

the  murder  and  rape  was  particularly  brutal,  the  death  

sentence  was  the  only  adequate  one.   Ganguli,  J.  however  

differed  on  this  aspect  and  held  that  as  there  was  some  

4

uncertainty with the nature of the circumstantial evidence and  

that the mitigating circumstance particularly the young age of  

the  appellant  and   the  possibility  that  he  could  be  

rehabilitated and would not commit any offence later on, could  

not be ruled out, and that the statutory obligation cast on the  

trial court under Section 235 (2) read with Section 354 (3) of  

the Cr.P.C. had been violated inasmuch that the accused had  

not been given adequate opportunity to plead on the question  

of sentence and  also citing a large number of cases including  

those of  rape and murder of  young children,  opined that  a  

sentence of life imprisonment was the proper one.  This matter  

has, accordingly, been referred to us only on the question of  

the sentence.

2. As already mentioned above, both Hon’ble Judges have  

relied  on a  number  of  cases  which are  on almost  identical  

facts in support of their respective points of view.    We notice  

that  there  is  a  very  thin  line  on facts  which separates  the  

award of a capital sentence from a life sentence in the case of  

rape and murder of a young child by a young man and the  

subjective  opinion  of  individual  Judges  as  to  the  morality,  

5

efficacy or otherwise of a death sentence cannot entirely  be  

ruled out.  It is now well settled that as on today the broad  

principle is that the death sentence is to be awarded only in  

exceptional  cases.   Both  Hon’ble  Judges  have  relied  

extensively on Dhanonjoy Chatterjee’s case (supra).   In this  

case the death sentence had been awarded by the trial court  

on similar facts and confirmed by the Calcutta High Court and  

the  appeal  too  dismissed  by  this  Court  leading  to  the  

execution of the accused.  Ganguli,J. has, however, drawn a  

distinction on the facts of that case and the present one and  

held that as the appellant was a young man, only 27 years of  

age, it was obligatory on the trial court to have given a finding  

as  to  a  possible  rehabilitation  and  reformation  and  the  

possibility  that  he  could  still  become  a  useful  member  of  

society  in  case  he  was  given  a  chance  to  do  so.   We  are,  

therefore,  of  the  opinion  that  in  the  light  of  the  findings  

recorded by Ganguli,J. it would not be proper to maintain the  

death sentence on the appellant.  At the same time the gravity  

of the offence, the behaviour of the appellant and the fear and  

concern such incidents generate in ordered society, cannot be  

6

ignored.   We,  therefore,  feel  that  a  via-media  ought  to  be  

adopted in the light of the judgment of this Court in  Ramraj  

vs. State of Chhattisgarh (2010) 1 SCC 573 and Mulla &  

Anr. State of Uttar Pradesh (2010) 3 SCC 508.     In these  

two cases, this Court has held that the term imprisonment for  

life  which is  found in  Section  302 of  the  IPC,  would mean  

imprisonment for the natural life of the convict subject to the  

powers of the President and the Governor under Articles 72  

and  161  of  the  Constitution  of  India  or  of  the  State  

Government  under  Section  433-A  of  the  Code  of  Criminal  

Procedure.  In Mulla’s case (supra), this Court has said :

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

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

7

For  the  foregoing  reasons  and  taking  into  account  all  the  aggravating  and  mitigating  circumstances,  we  confirm  the  conviction,  however, commute the death sentence into that of  life  imprisonment.  The  appeal  is  disposed  of  accordingly.”

In  arriving  at  its  conclusion,  the  Court  relied  on  similar  

observations  made in  the  case  of  Ramraj  (supra).   We are,  

therefore, of the opinion that the appellant herein ought to be  

awarded  a  similar  sentence.   We  accordingly  commute  the  

death sentence awarded to him to life but direct that the life  

sentence  must  extend  to  the  full  life  of  the  appellant  but  

subject to any remission or commutation at the instance of the  

Government for good and sufficient reasons.

3. As  already  noticed  above,  Ganguli,  J.  has  made  some  

observations on the omission of the trial court in dealing with  

the question of sentence on the principles underlying 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 on  

the  facts  of  the  present  case  and  would  present  

insurmountable  practical  difficulties  for  a  trial  court.  Even  

8

otherwise the facts indicate that the appellant had been given  

enough time and opportunity for pleading on the question of  

sentence.  We accordingly dispose of this appeal in the above  

manner.

   ……………………………….J.       ( HARJIT SINGH BEDI)

   ….……………………………J.       ( P. SATHASIVAM )

  …………………………………J.   (CHANDRAMAULI KR. PRASAD )

January 24, 2011. New Delhi.

9