REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 575  OF 2007

Rameshbhai Chandubhai Rathod ..Appellant

Versus

State of Gujarat  ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. A large number of cases in recent times coming before this Court involving rape and/or  

murder of girls of tender age is a matter of concern. In the instant case the victim who had not  

seen even ten summers in her life is the victim of sexual assault and animal lust of the accused  

appellant. She was not only raped but was murdered by the accused appellant.  The accused was  

found  guilty for offences punishable under Sections 363, 366, 376, 397 and 302 of the Indian  

Penal Code, 1860 (in short the ‘IPC’). He was sentenced to 7 years, 10 years, imprisonment for  

life, 7 years and death sentence for the aforesaid offences.  Conviction was recorded and sentences  

were imposed by learned Additional Sessions Judge, Fast Track Court No.9, Surat. In view of the  

award of the death sentence reference was made under Section 366 of the Code of Criminal  

Procedure, 1973 (in short the ‘Code’).  The accused appellant had also preferred an appeal which  

was dismissed by the impugned judgment.  Both the confirmation case and the criminal appeal  

were disposed of. Death sentence was confirmed while the criminal appeal was dismissed.  

2. Prosecution version as unfolded during trial is as follows:

The  complainant  i.e.  Nareshbhai  Thakorebhai  Patel  is  residing  in  flat  No.  A/2  of  Sanudip  

Apartment, located on Rander Road of Surat City, with his family. On the Ground Floor of the  

apartment, he  is running a grocery shop as well as a STD PCO Booth. The name of his wife is  

Ms. Kailashben. They were blessed with two children. The eldest is boy named Brijesh who was  

aged about 16 years at the time of incident. The deceased was student of IVth Standard, in Ankur  

School,  situated  near  Sardar  Circle,  Surat,  whereas  son  of  the  complainant  was  prosecuting  

studies  in  Swaminarayan  Gurukul  and  was  staying  in  hostel  of  Swaminarayan Temple.  The  

appellant was employed as Watchman of Sanudip Apartment and was residing with his wife Savita  

and two children in a room of the apartment which is opposite Sanudip Apartment. The incident  

took  place on  December 17,  1999.  The complainant  with his wife,  Ms.  Kailashben, went  to  

Udhana at about 8 PM to attend a religious ceremony. After return from Udhana, the complainant  

did not find the victim. Therefore, he made inquiries about the victim from his relatives. Those  

staying in the apartment informed the complainant that sometime before his return from Udhana,  

the deceased was playing badminton, but they were not knowing as to where she had gone. The  

complainant made extensive search about his daughter of tender age but in vain. At about 2.30  

AM on December 18,  1999, he lodged complaint with Rander Police Station,  stating that  the  

victim was missing. The information given by the complainant was recorded by Head Constable  

Ramdas Barko Borde, who was PSO of the Police Station. Head Constable Borde handed over  

investigation  of  complaint  lodged  by the  complainant  to  ASI  Mr.  Ashokbhai H.  Patil.  After  

lodging the complaint, the complainant continued search of the victim. On December 18, 1999,  

one  Mr.  Bipinbhai Bhandari,  who  is a  friend of  the  complainant,  came to  the  house  of  the  

complainant and informed the complainant that his old servant, Vishnubhai, had informed him that  

he had spotted  the appellant taking the  deceased with him on his cycle.   Mr.  Bipinbhai also  

informed the complainant that he was told by Vishnubhai that he had shouted at the appellant but  

the  appellant had not  stopped.  On learning these facts,  the complainant started  search of the  

appellant, who was employed as Watchman of the apartment. The complainant also informed the

police as to what was conveyed to him by his friend  Mr. Bipinbhai Bhandari. Extensive search  

about  the  victim  and  the  appellant  did  not  yield  any  result  on  December  18,  1999.  Mr.  

Chandravadan Naginbhai Patel, who is brother-in-law of the complainant, stayed at.the house of  

complainant in the night of December 18, 1999. In the morning of December 19, 1999, while  

going home to take a bath, Mr. Chandravadan Patel spotted the appellant sitting in an open space  

near  vegetable  market.  Mr.  Chandravadan  asked  the  appellant  as  to  where  the  victim was.  

Thereupon, the appellant informed M Chandravadan that he had raped the victim and killed her.  

Therefore, Mr. Chandravadan brought the appellant to  the house of the complainant. On being  

asked, the appellant informed the complainant and others, who had collected near the house of the  

complainant, that he had taken the deceased on December 17, 1999 with him on his bicycle and  

raped her and as he had feared that she would disclose the incident to others, he had killed her.  

Thereupon, the complainant informed the police, who arrived at  the house of the complainant  

within no time. The appellant took the complainant and police to the place of incident where dead  

body of the  deceased was found lying. The complainant,  thereupon,  lodged First  Information  

Report about rape of his daughter and her murder, against the appellant on December 19, 1999.  

On the basis of complaint of the complainant, offences were registered against the appellant. The  

complaint of the complainant was investigated by PI SA Desai, who held inquest on the dead body  

of  the  deceased  and  made  arrangements  for  sending  the  same  to  hospital  for  postmortem  

examination. From the place of incident, a broken bottle containing Castor oil and a knife, were  

recovered. The appellant was arrested and pursuant to disclosure statement made by him, the cycle  

used by him, for carrying the deceased to the place of incident, and school-bag of the deceased,  

containing gold and silver ornaments, were recovered. Silver and gold ornaments recovered from  

the school-bag were identified by mother of the deceased as belonging to the deceased. PI Desai  

recorded statements of those persons who were supposed to be conversant with the facts of the  

case. Incriminating articles seized during the course of investigation were sent to Forensic Science  

Laboratory (in short  the ‘FSL’) for analysis. The post-mortem examination of the body of the  

deceased indicated that the deceased was subjected to  rape and was, thereafter,  murdered. The

appellant,  who  was  arrested,  was  forwarded  to  Dr.  Meghrekhaben  Mehta  for  Medical  

Examination. Before Dr. Megrekhaben Mehta, the appellant stated that he had sustained injuries  

while committing rape and murder.  On completion of investigation, the appellant was charge-

sheeted  in the  Court  of  learned Chief Judicial Magistrate,  Surat,  for  commission of  offences  

punishable under Sections 363, 366, 376, 302 and 397 IPC. As the offences punishable under  

Sections 366, 376, 397, 302 are exclusively triable by a Court of Sessions, the case was committed  

to Sessions Court, Surat for trial, where it was numbered as Sessions Case No. 79 of 2000.

Since the accused persons pleaded innocence trial was held. Thirty four witnesses were  

examined. In addition, certain  documents were placed on record. The case primarily was based on  

circumstantial evidence as there was no eye witness. The circumstances  highlighted by the trial  

Court and the High Court are as follows:

1. The first circumstance is that the deceased was raped and she died a homicidal death.  

2. The second circumstance is that the deceased victim who was aged about 10 years was  

residing with her parents in flat No.A/2 of Sanudip Apartment located on Rander Road  

of Surat City.

3. The third circumstance is that the appellant was serving as a Watchman since long and  

he was residing with his family in a room located on ground floor of Happy Home  

Apartments situated opposite Sanudip Apartment, Surat.  

4. The fourth circumstance is that the accused appellant had won the confidence of the  

victim as a result of which the victim had reposed confidence in the appellant.  

5. The fifth circumstance which is sought to  be proved is that between 8.45 p.m. and  

9.00p.m. on December 17, 1999 the appellant was last seen playing badminton with the  

deceased in Sanudip Apartment.  

6. The sixth circumstance which is sought to  be proved is that the on December 19, 1999  

at  about  10.30  p.m.  the  parents  of  the  victim returned  home and  found that  the  

deceased was missing.

7. The seventh circumstance which is sought to be relied upon by the prosecution is that  

between 9.00 p.m. and 9.30 p.m on December 17,  1999 Vishnubhai Bahadur (PW-24)  

had seen the appellant taking the deceased on his cycle near Adajan Patia, Surat.  

8. The eighth circumstance is that after PW-24 had disclosed before Shankarbhai (PW-6)  

and others  that he had seen the appellant going on a cycle towards Jakat-Naka with  

the deceased,  a search was made and appellant was found missing.

9. The next circumstance which is sought to be relied upon by the prosecution is that in  

the morning of December 1999 witness Chandravadan who was going home had seen  

the accused sitting at an open place near Bhulka Bhavan School and had approached  

the  appellant  and  on  enquiry  being  made  the  appellant  had  made  extra  judicial  

confession before  him at that time.

10. The other circumstance which is sought to  be proved by the prosecution is that  on  

arrival of police at Sanudip Apartment after being informed by complainant Nareshbhai  

the appellant had shown the place of incident where the dead body of the deceased was  

found lying.

11. The next circumstance  is that at the instance of the accused appellant his cycle and  

school  bag of  the  deceased were  recovered  and school  bag was found containing  

anklets and earrings belonging to the deceased.  

12. Human Blood was found  from T-shirt of the accused and no explanation was offered  

by the appellant as to how human blood was found on  his T-shirt.      

The High Court found the circumstances to be credible, cogent and reliable.  The High  

Court while referring the circumstances as noted by the High Court upheld the conviction. It did  

not find any substance in the plea  of the accused appellant  that the evidence of the child witness  

(PW-17) cannot be relied upon and the extra judicial confession cannot also be relied upon as  

police was present. The concept of last seen together cannot be pressed into service in the instant  

case as PW-24 was not sure of the date or the time.  Additionally, it was submitted that in a case

where circumstantial evidence is the foundation for conclusion of guilt the death sentence cannot  

be awarded.  The High Court  noted that the evidence of the child witness PW-17 after careful  

analysis has been found to  be acceptable and, therefore there is no infirmity in the conclusion of  

the High Court.  Similarly, the plea relating to the extra judicial confession was also not accepted.  

The High Court held that several witnesses have seen the accused and the deceased together in  

close proximity time at the time of occurrence and, therefore, the accused was required to explain  

the  circumstances   as  to  how  immediately thereafter  the  deceased  was  found  to  be  dead.  

Therefore,   the  appeal filed by the  accused  appellant  was  dismissed and  the  death  sentence  

awarded was confirmed and  other sentences and the conviction as recorded were confirmed.  

3. The stand taken before the High Court was re-iterated in this Court.   

4. It is to be noted that the circumstances highlighted by the trial Court and analysed in  

detail by the High Court unerringly point at the accused to be author of the crime in the present  

case.  

5. So far as the last seen aspect is concerned PWs 4,  5, 6, 17 and 24 had categorically  

stated that the deceased was seen in  the company of the accused just before the time of death.  

Additionally,  the extra judicial confession was not recorded in the presence of the police. It is  

clear  from the  evidence of  the  witnesses  that  when the  first  confession was  recorded  police  

personnel were not present.  So far as the evidence of PW-24 regarding the last seen aspect is  

concerned  his evidence has to be read alongwith the evidence of PWs 5 and 6. Though PW-17  

was a child witness nevertheless the Court  has taken care of analyzing his evidence after being  

satisfied that child was speaking the truth.

6.  So far as the last seen aspect is concerned it is necessary to take note of two decisions  

of this court.  In State of U.P. v. Satish [2005 (3) SCC 114] it was noted as follows:

“22. The last seen theory comes into play where the time-gap between the point of time  when the accused and the deceased were seen last alive and when the deceased is found dead is so  small that possibility of any person other than the accused being the author of the crime becomes  impossible. It would be difficult in some cases to positively establish that the deceased was last  seen with the accused when there is a long gap and possibility of other persons coming in between  exists.   In  the  absence of  any other  positive evidence to  conclude that  the  accused and the  deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those  cases.  In this case there is positive evidence that the deceased and the accused were seen together  by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.”  

7. In Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted  

as follows:

“27. The last-seen theory, furthermore, comes into play where the time gap between the point of  time when the accused and the deceased were last seen alive and the deceased is found dead is so  small that possibility of any person other than the accused being the author of the crime becomes  impossible. Even in such a case the courts should look for some corroboration”.

(See also Bodh Raj v. State of J&K (2002(8) SCC 45).)”

8. A similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC 438],  

Kusuma Ankama Rao v State of A.P. (2008(9) SCALE 652) and in Manivel & Ors. v. State of  

Tamil Nadu ( 2008(5) Supreme 577).

9. In Joseph and Poulo v. State of Kerala [2000(5) SCC 197] it was, inter alia, held as  

follows:

“The formidable incriminating circumstances against the appellant, as far as we could see, are that  the deceased was taken away from the convent by the appellant under a false pretext and she was  last seen alive only in his company and that it is on the information furnished by the appellant in  the course of investigation that jewels of the deceased which were sold to PW 11 by the appellant,  were seized.”

“The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt  of the appellant and nothing has been highlighted or brought on record to make the facts proved  or the circumstances established to be in any manner in consonance with the innocence at any rate  of the appellant.  During the time of questioning under Section 313 Cr.P.C.  the appellant instead  of making at least an attempt to explain or clarity the incriminating circumstances inculpating him,  and connecting him with the crime by his adamant attitude of total denial of everything when those

circumstances were brought to his notice by the Court not only lost the opportunity but stood self- condemned.  Such incriminating links of facts could, if at  all, have been only explained by the  appellant, and by nobody else, they being personally and exclusively within his knowledge.  Of  late,  courts  have, from the falsity of the defence plea and false answers given to  court,  when  questioned, found the missing links to be supplied by such answers for completing the chain of  incriminating  circumstances  necessary  to  connect  the  person  concerned  with  the  crime  committed.(See:  State  of  Maharashtra  v.  Suresh).   That  missing link to  connect  the  accused  appellant, we find in this case provided by the blunt and outright denial of every one and all that  incriminating  circumstances  pointed  out  which,  in  our  view,  with  sufficient  and  reasonable  certainty on the facts proved, connect the accused with the death and the cause of the death of  Gracy and for robbing her of her jewellery worn by her — MOs 1 to 3, under Section 392. The  deceased meekly went with the accused from the Convent on account of the misrepresentation  made that her mother was seriously ill and hospitalised apparently reposing faith and confidence in  him in view of his close relationship — being the husband of her own sister, but the appellant  seems to  have not only betrayed the confidence reposed in him but also took advantage of the  loneliness of the hapless woman. The quantum of punishment imposed is commensurate with the  gravity of the charges held proved and calls for no interference in our hands, despite the fact that  we are not agreeing with the High Court  in respect of the findings relating to the charge under  Section 376.

10. In Damodar v. State of Karnataka [2000 SCC (Crl) 90] it was, inter alia, observed as  

follows:

11. “From the evidence of PWs. 1,6,7 & 8 the prosecution has satisfactorily established  

that the appellant was last seen with the deceased on 30.4.91.  The appellant either in his Section  

313 Cr.P.C. statement or by any other evidence has not established when and where he and the  

deceased parted company after being last seen.”

12. Before analyzing factual aspects it may be stated that for a crime to be proved it is not  

necessary that the crime must be seen to have been committed and must, in all circumstances be  

proved by direct ocular evidence by examining before the Court those persons who had seen its  

commission. The offence can be proved by circumstantial evidence also.  The principal fact or  

factum probandum may be proved indirectly by means of certain inferences drawn from factum  

probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to  

the point in issue but consists of evidence of various other facts which are so closely associated  

with the fact in issue that  taken together  they form a chain of circumstances from which the

existence of the principal fact can be legally inferred or presumed.  

13. It has been consistently laid down by this Court  that where a case rests squarely on  

circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts  

and circumstances are found to be incompatible with the innocence of the accused or the guilt of  

any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors.  

v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of  Karnataka  (AIR 1983 SC  

446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab  

(AIR 1987  SC 350);  Ashok Kumar Chatterjee v.  State  of  M.P. (AIR 1989  SC 1890).  The  

circumstances from which an inference as to the guilt of the accused is drawn have to be proved  

beyond reasonable doubt and have to be shown to be closely connected with the principal fact  

sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC  

621),  it  was  laid  down  that  where  the  case  depends  upon  the  conclusion  drawn  from  

circumstances  the  cumulative  effect  of  the  circumstances  must  be  such  as  to  negative  the  

innocence of the accused and bring the offences home beyond any reasonable doubt.

14. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors.  

v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:

“In a case based on circumstantial evidence, the settled law is that the circumstances from which  the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive  in nature. Moreover, all the circumstances should be complete and there should be no gap left in  the  chain  of  evidence.  Further  the  proved  circumstances  must  be  consistent  only with  the  hypothesis of the guilt of the accused and totally inconsistent with his innocence....”.

15. In Padala Veera Reddy v. State of A.P. and Ors.  (AIR 1990 SC 79), it was laid down  

that  when a case rests  upon circumstantial evidence, such evidence must satisfy the following  

tests:  

“(1) the circumstances from which an inference of guilt is sought to  be drawn, must be

cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt  of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no  escape from the conclusion that  within all human probability the crime was committed by the  accused and none else; and     

(4) the  circumstantial  evidence  in  order  to  sustain  conviction  must  be  complete  and  incapable of explanation of any other hypothesis than that of the guilt of the accused and such  evidence should not only be consistent with the guilt of the accused but should be inconsistent  with his innocence.”

16. In State of U.P. v.  Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out  

that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is  

reasonably capable of two inferences, the one in favour of the accused must be accepted.  It was  

also pointed out that the circumstances relied upon must be found to have been fully established  

and the cumulative effect of all the facts so established must be consistent only with the hypothesis  

of guilt.

17. Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI)  

lays down the following rules specially to be observed in the case of circumstantial evidence: (1)  

the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable  

doubt connected with the factum probandum; (2) the burden of proof is always on the party who  

asserts  the existence of any fact,  which infers legal accountability; (3) in all cases, whether of  

direct or circumstantial evidence the best evidence must be adduced which the nature of the case  

admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with  

the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis  

than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled  

as of right to be acquitted”.

18. There is no doubt that conviction can be based solely on circumstantial evidence but it

should be tested by the touch-stone of law relating to circumstantial evidence laid down by this  

Court as far back as in 1952.   

19. In  Hanumant Govind Nargundkar and Anr. V.  State of Madhya Pradesh, (AIR 1952  

SC 343), wherein it was observed thus:

“It  is  well  to  remember  that  in cases  where  the  evidence  is  of  a  circumstantial  nature,  the  circumstances from which the conclusion of guilt is to be drawn should be in the first instance be  fully established and all the facts so established should be consistent only with the hypothesis of  the guilt of the accused.  Again, the circumstances should be of a conclusive nature and tendency  and they should be such as to exclude every hypothesis but the one proposed to be proved. In  other words, there must be a chain of evidence so far complete as not to  leave any reasonable  ground for a conclusion consistent with the innocence of the accused and it must be such as to  show that within all human probability the act must have been done by the accused.”

20. A reference may be made to a later decision in Sharad Birdhichand Sarda v.  State of  

Maharashtra, (AIR 1984 SC 1622).  Therein, while dealing with circumstantial evidence, it has  

been held that onus was on the prosecution to prove that the chain is complete and the infirmity of  

lacuna in prosecution cannot be cured by false defence or plea.  The conditions precedent in the  

words of this Court,  before conviction could be based on circumstantial evidence, must be fully  

established. They are:

(1) the circumstances from which the conclusion of guilt is to  be drawn should be fully  established.  The circumstances concerned must or should and not may be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the  accused, that is to  say, they should not be explainable on any other hypothesis except that the  accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so compete as not to leave any reasonable ground for  

the conclusion consistent with the innocence of the accused and must show that  in all human  

probability the act must have been done by the accused.

21. One of the other important circumstances is that the accused appellant had shown the  

place of incident where the dead body of the deceased was found lying. At the instance of the  

appellant his cycle and school bag of the deceased  were recovered and  the school bag was found  

containing anklets and earrings belonging to the deceased. Human blood was found on the T-shirt  

of the accused. The falsity of defence plea has been regarded as an additional link in the chain of  

circumstances.  The conviction  has therefore been rightly recorded by the trial Court and affirmed  

by the High Court.  

22. Coming to  the question of award of death sentence, this has to  be considered in the  

background of  factual scenario.

23. The law regulates social interests, arbitrates conflicting claims and demands.  Security  

of persons and property of the people is an essential function of the State.  It could be achieved  

through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living  

law must find answer to the new challenges and the courts are required to mould the sentencing  

system to meet the challenges. The contagion of lawlessness would undermine social order and lay  

it in ruins.  Protection of society and stamping out criminal proclivity must be the object of law  

which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the  

edifice of “order” should meet the challenges confronting the society. Friedman in his “Law in  

Changing Society” stated that, “State of criminal law continues to be – as it should be – a decisive  

reflection of social consciousness of society”.  Therefore, in operating the sentencing system, law  

should  adopt  the  corrective  machinery or  the  deterrence  based  on  factual  matrix.   By deft  

modulation sentencing process be stern where it should be, and tempered with mercy where it  

warrants  to  be.  The facts and given circumstances in each case,  the nature  of the crime, the  

manner in which it  was planned and committed,  the motive for commission of the crime, the  

conduct  of the accused,  the nature of weapons used and all other  attending circumstances are  

relevant facts which would enter into the area of consideration.  For instance a murder committed

due to deep-seated mutual and personal rivalry may not call for penalty of death.  But an organised  

crime  or  mass  murders  of  innocent  people  would  call  for  imposition  of  death  sentence  as  

deterrence.  In Mahesh v. State of M.P. (1987) 2 SCR 710), this Court while refusing to reduce  

the death sentence observed thus:

“It will be a mockery of justice to permit the accused to escape the extreme penalty of law when  faced with such evidence and such cruel acts. To give the lesser punishment for the accused would  be to  render the justicing system of the country suspect.   The common man will lose faith in  courts.  In such cases, he understands and appreciates the language of deterrence more than the  reformative jargon.”

24. Therefore, undue sympathy to impose inadequate sentence would do more harm to the  

justice system to undermine the public confidence in the efficacy of law and society could not long  

endure under  such serious threats.   It  is,  therefore,  the duty of every court  to  award  proper  

sentence having regard to the nature of the offence and the manner in which it was executed or  

committed etc.  This position was illuminatingly stated by this Court  in  Sevaka Perumal etc. v.  

State of Tamil Naidu (AIR 1991 SC 1463).  

25. The criminal law adheres in general to  the principle of proportionality in prescribing  

liability according to  the culpability of each kind of criminal conduct.  It  ordinarily allows some  

significant discretion to  the Judge in arriving at  a sentence in each case, presumably to  permit  

sentences that reflect more subtle considerations of culpability that are raised by the special facts  

of each case.   Judges in essence affirm that  punishment ought  always to  fit the crime; yet in  

practice sentences are determined largely by other considerations. Sometimes it is the correctional  

needs  of  the  perpetrator  that  are  offered to  justify a  sentence.  Sometimes the  desirability of  

keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these  

considerations cause a departure from just desert as the basis of punishment and create cases of  

apparent injustice that are serious and widespread.  

26. Proportion between crime and punishment is a goal respected in principle, and in spite  

of errant notions, it remains a strong influence in the determination of sentences. The practice of

punishing all serious crimes with equal severity is now unknown in civilized societies, but such a  

radical departure from the principle of proportionality has disappeared from the law only in recent  

times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a  

penalty of greatest severity for any serious crime is thought then to be a measure of toleration that  

is  unwarranted  and  unwise.  But  in  fact,  quite  apart  from  those  considerations  that  make  

punishment unjustifiable when it is out  of proportion to  the crime, uniformly disproportionate  

punishment has some very undesirable practical consequences.            

27. After giving due consideration to the facts and circumstances of each case, for deciding  

just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors  

and circumstances in which a crime has been committed are to be delicately balanced on the basis  

of really relevant circumstances in a dispassionate manner by the Court.  Such act of balancing is  

indeed a difficult task.  It has been very aptly indicated in Dennis Councle MCG Dautha v. State of  

California: 402 US 183: 28 L.D. 2d 711  that no formula of a foolproof nature is possible that  

would provide a reasonable criterion in determining a just  and appropriate  punishment in the  

infinite variety of circumstances that may affect the gravity of the crime.  In the absence of any  

foolproof formula which may provide any basis for reasonable criteria to correctly assess various  

circumstances germane to the consideration of gravity of crime, the discretionary judgment in the  

facts of each case, is the only way in which such judgment may be equitably distinguished.

28. In Jashubha Bharatsinh Gohil v. State of Gujarat (1994 (4) SCC 353), it has been held  

by this  Court  that  in the  matter  of  death  sentence,  the  Courts  are  required  to  answer  new  

challenges and mould the sentencing system to meet these challenges.  The object should be to  

protect the society and to deter the criminal in achieving the avowed object to law by imposing  

appropriate sentence. It is expected that the Courts would operate the sentencing system so as to  

impose such sentence which reflects the conscience of the society and the sentencing process has  

to be stern where it should be. Even though the principles were indicated in the background of

death sentence and life sentence, the logic applies to all cases where appropriate sentence is the  

issue.

29. Imposition of sentence without considering its effect on the social order in many cases  

may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences  

against women, dacoity, kidnapping, misappropriation of public money, treason and other offences  

involving moral turpitude or  moral delinquency which have great  impact  on social order,  and  

public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude  

by imposing meager sentences or taking too sympathetic view merely on account of lapse of time  

in respect  of such offences will be result-wise counter  productive in the long run and against  

societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the  

sentencing system.  

30. In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC 220), this Court has observed  

that  shockingly large number of criminals go unpunished thereby increasingly, encouraging the  

criminals and in the ultimate making justice suffer by weakening the system’s creditability. The  

imposition of appropriate punishment is the manner in which the Court responds to the society’s  

cry  for  justice  against  the  criminal.  Justice  demands  that  Courts  should  impose  punishment  

befitting the crime so that the Courts reflect public abhorrence of the crime.  The Court must not  

only keep in view the rights of the criminal but also the rights of the victim of the crime and the  

society at large while considering the imposition of appropriate punishment.

31. Similar view has also been expressed in  Ravji v.  State of Rajasthan, (1996 (2) SCC  

175). It has been held in the said case that it is the nature and gravity of the crime but not the  

criminal, which are germane for consideration of appropriate punishment in a criminal trial.  The  

Court will be failing in its duty if appropriate punishment is not awarded for a crime which has  

been committed not only against the individual victim but also against the society to  which the

criminal and victim belong.  The punishment to be awarded for a crime must not be irrelevant but  

it should conform to and be consistent with the atrocity and brutality with which the crime has  

been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond  

to  the society’s cry for justice against the criminal”. If for extremely heinous crime of murder  

perpetrated in a very brutal manner without any provocation, most deterrent punishment is not  

given, the case of deterrent punishment will lose its relevance.

32. These aspects have been elaborated in State of M.P. v. Munna Choubey [2005 (2) SCC  

712].

33. In  Bachan Singh v.  State  of Punjab [1980 (2)  SCC 684] a  Constitution  

Bench of this Court at para 132 summed up the position as follows: (SCC p.729)

“132. To sum up, the question whether or not death penalty serves any penological purpose is a  difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of  testing the constitutionality of the impugned provision as to death penalty in Section 302, Penal  Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is  not necessary for us to express any categorical opinion, one way or the other, as to which of these  two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say  that the very fact that persons of reason, learning and light are rationally and deeply divided in  their opinion on this issue, is a ground among others, for rejecting the petitioners’ argument that  retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If,  notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the  world over, including sociologists, legislators, jurists, judges and administrators still firmly believe  in the worth and necessity of capital punishment for the protection of society, if in the perspective  of  prevailing crime conditions in India,  contemporary public opinion channelised through the  people’s  representatives  in  Parliament,  has  repeatedly in  the  last  three  decades,  rejected  all  attempts,  including the one made recently, to  abolish or  specifically restrict  the area of death  penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in  most of the civilised countries in the world, if the framers of the Indian Constitution were fully  aware — as we shall presently show they were — of the existence of death penalty as punishment  for murder, under the Indian Penal Code, if the 35th Report and subsequent reports of the Law  Commission suggesting retention of death penalty, and recommending revision of the Criminal  Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that Code providing  for pre-sentence hearing and sentencing procedure on conviction for murder and other  capital  offences were before Parliament and presumably considered by it when in 1972-73 it took  up  revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not  possible to hold that the provision of death penalty as an alternative punishment for murder, in  Section 302, Penal Code is unreasonable and not  in the public interest.  We would, therefore,  conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of  Article 19."

34. Similarly, in  Machhi Singh v.  State  of Punjab [1983 (3)  SCC 470] in para  38 the  

position was summed up as follows: (SCC p. 489)

“38. In this background the guidelines indicated in Bachan Singh's case (surpa) will have to be  culled out and applied to the facts of each individual case where the question of imposing of death  sentence arises. The following propositions emerge from Bachan Singh's case (supra):

(i)  The  extreme  penalty of  death  need  not  be  inflicted  except  in  gravest  cases  of  extreme  culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken  into consideration along with the circumstances of the ‘crime’.

(iii)  Life imprisonment  is the  rule  and death  sentence is an exception.  In  other  words  death  sentence must be imposed only when life imprisonment appears to  be an altogether inadequate  punishment having regard  to  the relevant circumstances of the crime, and provided,  and only  provided,  the  option  to  impose  sentence  of  imprisonment  for  life cannot  be  conscientiously  exercised  having  regard  to  the  nature  and  circumstances  of  the  crime  and  all  the  relevant  circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing  so the mitigating circumstances have to be accorded full weightage and a just balance has to be  struck between the aggravating  and the mitigating circumstances before the option is exercised."

35. The position was again reiterated in  Devender Pal Singh v.  State  of NCT of Delhi  

[2002 (5)SCC 234 ] : (SCC p. 271, para 58)

“58. From Bachan Singh 's case (supra) and Machhi Singh's case (supra) the principle culled out  is that  when the collective conscience of the community is so shocked,  that  it will expect  the  holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as  regards  desirability or  otherwise of retaining death penalty, the same can be awarded.  It  was  observed:

The community may entertain such sentiment in the following circumstances:

(1)  When the murder  is committed in an extremely brutal,  grotesque,  diabolical, revolting, or  dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g.  murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-à- vis whom the murderer is in a dominating position or in a position of trust; or murder is committed  in the course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not  for personal reasons but in circumstances which arouse social wrath; or in cases of ‘bride burning’  or ‘dowry deaths’ or when murder is committed in order to  remarry for the sake of extracting

dowry once again or to marry another woman on account of infatuation.  

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or  almost all the members of a family or a large number of persons of a particular caste, community,  or locality, are committed.

(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or  a person vis-à-vis whom the murderer is in a dominating position, or  a public figure generally  loved and respected by the community.”

36. If  upon  taking  an  overall global view of  all the  circumstances  in the  light  of  the  

aforesaid propositions and taking into account the answers to the questions posed by way of the  

test  for the rarest  of rare cases, the circumstances of the case are such that  death sentence is  

warranted, the court would proceed to do so.

37. What is culled out from the decisions noted above is that while deciding the  

question as to whether the extreme penalty of death sentence is to be awarded, a balance sheet of  

aggravating and mitigating circumstances has to be drawn up.

38. The plea that  in a case of circumstantial evidence death  should not  be awarded is  

without  any logic. If the circumstantial evidence is found to  be of unimpeachable character  in  

establishing the guilt of the accused, that forms the foundation for conviction. That has nothing to  

do  with the  question of  sentence as  has been observed by this Court  in various  cases while  

awarding death sentence.  The mitigating circumstances and the aggravating circumstances have to  

be  balanced.   In  the  balance  sheet  of  such  circumstances,  the  fact  that  the  case  rests  on  

circumstantial evidence has no role to play. In fact in most of the cases where death sentence are  

awarded for rape and murder and the like, there is practically no scope for having an eye witness.  

They are not committed in the public view.  But very nature of things in such cases, the available  

evidence is circumstantial evidence. If the said evidence has been found to be credible, cogent and  

trustworthy  for  the  purpose  of  recording  conviction,  to  treat  that  evidence  as  a  mitigating  

circumstance, would amount to consideration of an irrelevant aspect. The plea of learned counsel  

for the appellant  that the conviction is based on circumstantial evidence and, therefore, the death

sentence should not be awarded is clearly unsustainable.

39. The case at  hand falls in the rarest  of rare category.  The circumstances highlighted  

establish the depraved acts of the accused and they call for only one sentence i.e. death sentence.

40.Looked at from any angle the judgment of the High Court confirming the death sentence does  

not want any interference.

41.  The appeal  fails and is dismissed.  

…………………………….J. (Dr. ARIJIT PASAYAT)

…………………………….J. (ASOK KUMAR GANGULY)

New Delhi, April 27, 2009

                                       REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 575  OF 2007

Rameshbhai Chandubhai Rathod ..Appellant

Versus

State of Gujarat  ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

Though both of us have agreed that conviction is to be maintained, one of us Pasayat, J  

has confirmed the death sentence while Ganguly, J has held that life sentence is to be given. The  

matter is referred to a larger bench  only on the question of sentence. The matter be placed before  

Hon’ble the Chief Justice of India for necessary orders.  

…………………………….J. (Dr. ARIJIT PASAYAT)

 ………………………………….J.

(ASOK KUIMAR GANGULY)

New Delhi, April 27, 2009

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.575 OF 2007    

Rameshbhai Chandubhai Rathod            .Appellant(s)

- Versus -

State of Gujarat                       Respondent(s)

J U D G M E N T

Ganguly, J

1. I have gone through the judgment prepared by My Lord Hon’ble Dr. Justice Pasayat, but I have not  

found myself in entire agreement with the conclusions reached by His Lordship.  I need hardly say  

that it is only with great respect to His Lordship that I venture to express a divergent opinion on  

the sentence and I consider it my sacred duty as a judge to do so.  In my view in this case death  

penalty cannot be inflicted on the appellant.  

2. From the  judgment  of  His  Lordship,  it  appears  that  the  case  against  the  appellant  rests  on  

circumstantial evidence.  Those circumstances have been noted  by the Hon’ble High Court  and  

adverted to by His Lordship in the judgment.  Twelve circumstances have been noted and they are  

as follows:-

I. The 1st circumstance is that the deceased was raped and she died a homicidal death.

II. The 2nd circumstance is that the deceased victim who was aged about 10 years was  residing with her parents in flat No.A/2 of Sanudip Apartment located on Rander Road of Surat  City.

III. The 3rd circumstance is that the appellant was serving as a  Watchman since long and he  was residing with his family in a room located on ground floor of Happy Home Apartments situated  opposite Sanudip Apartment, Surat.

IV. The 4th circumstance is that  the accused appellant had won  the  confidence of  the  victim as a result of which the victim had reposed confidence in the appellant.

V. The 5th circumstance which is sought to  be proved is that  between 8.45 p.m. and  9.00  p.m.  on  December  17,  1999  the  appellant  was  last  seen  playing  badminton  with  the  deceased in Sanudip Apartment.

VI. The 6th circumstance which is sought to be proved is that  on December 17, 1999 at  about  10.30  p.m.  the  parents  of  the  victim  returned home and found that  the deceased was  missing.

VII. The 7th circumstance which is sought  to  be relied upon by  the  prosecution is that  between 9.00 p.m. and 9.30 p.m on December 17, 1999 Vishnubhai Bahadur (PW-24) had seen  the appellant taking the deceased on his cycle near Adajan Patia, Surat.

VIII. The 8 th circumstance is that  after PW-24 had disclosed before Shankarbhai (PW- 6)  and others  that  he had seen the appellant going on a  cycle towards  Jakat-Naka with the  deceased, a search was made and appellant was found missing.  

IX. The next circumstance which is sought to be relied upon by the prosecution is that in  the morning of December 19, 1999 witness Chandravadan who was going home had seen the  accused sitting at an open place near Bhulka Bhavan School and had approached the appellant  and on enquiry being made the appellant had made extra  judicial confession before him at that  time.

X. The other circumstance which is sought to be proved by the prosecution is that on  arrival of police at  Sanudip Apartment  after  being informed by complainant Nareshbhai the  appellant had shown the place of incident where the dead body of the deceased was found lying.

XI. The next circumstance is that at the instance of the accused appellant his cycle and  school bag of the deceased were recovered and school bag was found containing anklets and earrings  belonging to the deceased.

XII. Human  Blood  was  found  from T-shirt  of  the  accused  and  no  explanation  was  offered by the appellant as to how human blood was found on his T-shirt.

3. On going through those circumstances, to my mind, the first three circumstances, by themselves, do  

not fasten any guilt on the appellant. In conjunction with other circumstances they may be relevant.  

However  the 4th,  5th,  7th,  8th,  9th,  10th,  11th and 12th circumstances might have been considered  

relevant by His Lordship for bringing home the guilt of the appellant and then bringing the case

within the rarest of rare cases, a principle formulated by the majority judgment in Bachan Singh  

Vs. State of Punjab - AIR 1980 SC 898, by this Court for imposing death penalty.  

4. Since I differ with His Lordship on the question of inflicting the death penalty on the appellant, I  

propose to consider the evidence leading onto some of those circumstances.  

5. To prove the fourth circumstance, the prosecution examined witness Kailashben, who is the mother  

of the deceased.   Kailashben  deposed that the appellant used to take the victim to school on his  

cycle and leave her at school when the rickshawallah failed to turn up to take her to school. The  

same version has been given by another witness, Chandravadan Nagin Bhai Patel (PW.4). The High  

Court has also noted that the appellant, in his written statement had stated that the deceased would  

occasionally play with his daughter and come to his room and that he never misbehaved with the  

deceased. These pieces of evidence cannot be said to fasten any guilt on the appellant. However,  

the  High Court  on  appreciation  of  these  pieces  of  evidence  came to  the  conclusion that  the  

prosecution proved that the appellant had enticed the victim to come with him and the fact that the  

appellant took the victim on the bicycle on December 17, 1999 becomes “plausible and acceptable”.  

6. Therefore, the High Court’s conclusions on the 4th circumstance are not very definite. The High  

Court  itself  considered  its  conclusion  in  respect  of  the  4th circumstance  a  ‘plausible  one’.  

Imposition of death sentence by considering one of the circumstances which High Court  finds  

‘plausible’ is, to my mind, in defiance of any reasoning which brings a case within the category of  

the ‘rarest of rare cases’.   

7. In proving the 5th circumstance, the prosecution relied heavily on evidence of the child witness,  

namely Darshanaben. When she deposed,  before the Court  in 2004, she was 17 years old. The  

incident happened in 1999 and at that time, she must have been 12 years old.

8. In the examination-in-chief, she stated that she went to  Sanudip Apartments between 8 and 8:30  

p.m., she and the deceased were playing badminton.  At that time, one Jayanti Dada was sitting  

near the STD shop. However, the evidence of Jayanti Dada is not forthcoming even though the  

witness said when she went for dinner in the house of the deceased,  Jayanti Dada was playing  

badminton with the deceased. After dinner, the witness came back and again started playing with  

the deceased. Then, her father came and took her home. At this point, her evidence in chief is  

“thereafter, Khusbu (the deceased), was playing badminton with the appellant”.   According to her  

evidence, they were playing badminton at about 9 p.m.  

9. For the appreciation of the evidence of a child witness, this Court has evolved certain principles and  

in some of its judgments this Court has relied on the proposition formulated by Justice Brewer in  

Wheeler  Vs.  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 demands that it should be subjected to a close scrutiny. If on a close scrutiny, the Court  

finds it reliable, even conviction can be based on it.  

11. This  principle  laid  down  in  Wheeler (supra)  has  been  accepted  by this  Court  in  Ratansinh  

Dalsukhbhai Nayak  Vs.  State of Gujarat -  (2004) 1 SCC 64, at  pg. 67 and also in  Nivrutti   

Pandurang Kokate and Others Vs. State of Maharashtra - (2008) 12 SCC 565, at pg. 567.  

12. Even earlier than that, this Court in Dattu Ramrao Sakhare and Others Vs. 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 dependable evidence (See page 343).

13. In Suryanarayana Vs. State of Karnataka - (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).  

14. In this case, of course, there is some corroboration of the evidence of the child witness from the  

deposition given by Shankarbhai, who mentioned that, the accused was playing badminton with the  

deceased.  So far as the 5th circumstance is concerned, guilt of the appellant did not surface till then.  

15. So far as the 6th circumstance is concerned, the same is that the deceased was found missing by her  

parents when they returned home on 17.12.1999 at about 10.30 p.m.  This also does not indicate  

any guilt of the appellant.  

16. The 7th and 8th circumstances are very crucial and in this connection, the evidence of PW.24 is very  

vital for fastening the guilt on the appellant.  PW.24 in his evidence in chief said that he had seen  

the appellant taking the deceased on a bicycle between 9.00 to 9.30 p.m.  The said witness was  

having the business of selling Chinese food in a lorry near Adajan Patiya Char Rasta.  But in his  

cross-examination he has said “on the date of incident at about 8.00 p.m. I had seen Ramesh with  

Khushbu, who was going on cycle sitting behind Khushbu, on the road Adajan Patiya Char Rasta  

opposite to my lorry”.   

17. This is a vital discrepancy.  The evidence of the child witness corroborated by Shankarbhai is that,  

deceased was playing badminton till about 9.00 p.m.  The deceased was first playing with the child  

witness,  then with Jayanti Dada and then again with the child witness and ultimately with the  

appellant when the child witness left the apartment with her father for their house.  Therefore, the  

evidence of PW.24, which is adduced by the prosecution to prove the theory of ‘last seen’ is that  

on 8.00 p.m. PW.24 had seen the appellant and the victim going on a cycle in front of his lorry from  

which he was selling Chinese food.  

18. In that case, the deceased and the appellant must have left the apartment before 8 p.m. Thus there  

is a very vital discrepancy about time between the evidence of child witness as corroborated by  

Shankarbhai and the evidence of PW.24 on the question of ‘last seen’. The prosecution sought to  

prove this ‘last seen’ theory on the basis of the 5th and 7th circumstances.  This discrepancy has not  

been noticed either by the High Court or in the judgment of His Lordship.   

19. The next, the 8th circumstance, as noted in the judgment of His Lordship is that after PW.24 had  

disclosed before Shankarbhai (PW.6) that he had seen the appellant going on a cycle towards Jakat  

Naka  with the  deceased,  a  search was made and the  appellant  was  found missing.  From the  

evidence of Vishnu Bahadur (PW.24), it appears that on the date of the incident i.e. 17.12.1999,  

after he saw the appellant going  with the deceased on a cycle and he called  the  appellant  to  stop,   

the  appellant  did  not   stop    the   cycle and  was  going  towards Jakat Naka.   Thereafter his  

evidence in chief is that he closed the lorry at about 11.00 p.m. and went to his house and slept.  On  

17.12.1999  Vishnu Bahadur  (PW.24)  did not  meet  Shankarbhai (PW.6).  On the  next  day i.e.  

18.12.1999 at about 1.00 to 1.30 p.m., Vishnu Bahadur (PW.24) after cooking Chinese food in his  

house went to Sanudip Apartment and met Shankarbhai (PW.6).  When he went to that Apartment,  

he saw a crowd there.  Then his evidence is, “I asked Shankarbhai, what is happened.  In reply,  

Shankarbhai told me that Khushbu is missing since last night.  At that time I informed Shankarbhai  

that yesterday evening I have seen Ramesh, who was going on cycle with Khushbu.  The police had  

inquired him.”  

20. It is clear from the aforesaid evidence that Vishnu Bahadur (PW.24) met Shankarbhai (PW.6) on  

the  next  day i.e.  on  18.12.1999  quite  late  and  which is after  mid day and then  he informed  

Shankarbhai about  the  incident  of  the  appellant  going on  a  cycle with the  deceased.   So  the  

information by PW.24 to PW.6 that he saw on 17.12.1999 the appellant and the deceased going  

together on a cycle towards Jakat Naka was not given before 1.00 to 1.30 p.m. on 18.12.1999.

21. The  9th circumstance  which  introduces  the  extra  judicial  confession  by  the  appellant  to  

Chandravadan (PW.4) shows a different sequence of events.  Evidence of Chandravadan (PW.4) is  

that on the night of 17.12.1999, Nareshbhai and Kailashben, the parents of the deceased, came to  

his house for the purpose of searching the deceased. Then Chandervadan went with them to search  

the deceased and stayed at the place of Nareshbhai and then he went to the house of his mother-in-

law, where he stayed the whole night then left for his house to have a bath which is obviously the  

next day i.e. 18.12.1999.  When he was leaving for his house on a motorcycle, he saw the appellant  

sitting behind Bhulka Bhavan School in an open plot.   He went to  the appellant and asked him  

about  Khusbhu and then the appellant made his confessional statement  of allegedly raping and  

murdering Khushbu.  Chandravadan (PW.4) then took the appellant “to the house of Nareshbhai”  

where Nareshbhai and others interrogated the appellant and before them appellant is alleged to have  

made  the  same  confessional  statement.   Then  Nareshbhai ‘called  up  the  Police  Station’  and  

‘informed the police’.  PW.4 also deposed, ‘Before police came, I left the house of Nareshbhai and  

went to  my house to  have a bath’ – this is the evidence of PW.4 in chief.  It  is clear from the  

aforesaid evidence of PW.4 that he took the appellant to the father of the deceased on the next day  

and police was immediately informed before he could go to his house to take his bath.   

22. To my mind this discloses major discrepancies in the sequence of events, which formed the core of  

7th, 8th and 9th circumstances and are very vital to establish the guilt of the appellant.   According to   

my reading of the  evidence there  is no chance of  the  appellant  being found missing after  the  

reporting of the incident by PW.24 on 18.12.1999 at about 1.00 to 1.30 p.m. in as much as PW.4  

brought the appellant to  the apartment in the morning hours of 18.12.1999 and the police was  

immediately called.  In between the confession was allegedly made by the appellant.   

23. It appears that in his statement under Section 313 Cr.P.C., the appellant submitted that he wants to  

give a written statement and he actually had given a written statement to the Trial Court.  The same  

was marked as Exhibit 133.  In the said written statement dated 1.4.2005 he has inter alia stated:-

“I have not made any confession before the residents of the society or the police, because  I  have not  committed any offence.  Moreover,  I  have not  shown dead body of Khushbu to  the  Police.   I  had not  led police to  the  place where  dead body was lying.   I  have not  made any  confession before the police or panch persons.  I  have not  drawn the police to  the place of my  residence.  I have not given anything from the school bag.  The police had created these evidences  with a view to involve me in the case falsely.”

24. This has to be treated as part of the accused’s statement under Section 313.  The provision under  

Section 313 of the Code is for the benefit of the accused [see Basavaraj R. Patil & others Vs.  

State of Karnataka and others – (2000) 8 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.   

26. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that  the  

Court must invariably accept the retraction.   But at the same time it is unsafe for the court to rely  

on the retracted confession, unless the Court on a consideration of the entire evidence comes to a  

definite conclusion that the retracted confession is true. If the Court wants to reject the retraction,  

Court must give cogent reasons before the Court rejects it. (See the Division Bench Judgment of  

Calcutta High Court in King Emperor Vs. Biseswar Dey and 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 Vs. State of West Bengal reported in JT 2008(11) SC 658 at 665 of the  

report. (See para 21).   

27. It does not appear that the High Court has given any reason for not accepting the retraction of the  

confession by the accused.  The High Court dealt with so-called extra judicial confessions by the  

appellant and held that the second extra judicial confession by the appellant before the police is hit  

by Section 25 of the Evidence Act.  But about the retraction of his first extra judicial confession in  

the written statement of the appellant, which is part of his 313 statement, there is no discussion in

the judgment of the High Court.   

28. In paragraph 13 of the High Court judgment, the High Court merely referred to the general denials  

by the appellant in the course of his examination under Section 313 Cr.P.C. and held that the non-

explanation of the suspicious circumstances under which the deceased had died will be treated as an  

additional link against the appellant.  In a case where death penalty has been imposed, this Court   

expects the High Court to consider the evidence with greater care and circumspection.   

29. This Court finds that the written statement of the appellant was accepted by the High Court while  

formulating various  circumstances  against  the  appellant.   A part  of  the  written  statement  was  

considered for formulating the 4th circumstance against him.  So High Court cannot accept one part  

of the statement to the total non-consideration of the other part in which the appellant has retracted  

his confession and especially when it was affirming death sentence against the appellant.   

30. The 12th circumstance against the appellant is that blood was found on his T-shirt.  But the High  

Court observed that the blood group of the deceased was ‘A’ and the blood group found on T-shirt  

of the appellant couldn’t be determined.  So, in my view, the mere fact that blood stain was found  

on the T-Shirt of the appellant cannot be taken as a circumstance against him.

31. But  the  High Court  glossed over  this gap  in the  prosecution evidence by citing  Khujji  alias  

Surendra Tiwari Vs. 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  

accused is not determined, the same is of no consequence when there is direct evidence against the  

accused that he inflicted a knife blow on the deceased.   

32. This ratio cannot be applied here as there is no direct evidence. This is a case of circumstantial  

evidence.  Therefore, in the absence of any proof that the group of the blood stain found on the T-

shirt of the accused is that of the deceased, the 12th circumstance cannot be said to be one pointing  

towards the guilt of the accused and especially in a case where death penalty is affirmed by the  

High Court.

33. In the complaint,  which was filed by the father  of the  deceased girl,  there  is no allegation of  

robbery.  In the evidence led in this case and on which adverse circumstances have been formulated  

against the appellant, it appears that the deceased girl went with the appellant on her own.  In the  

circumstances noted against the appellant, there is no allegation of robbery against the appellant.   

34. In his statement under Section 313, the accused was not told that he has committed robbery.  Only  

in some of the questions it was put to him that the deceased girl was wearing golden earrings and  

silver anklets.  It was never put to him that he has committed any robbery.  Even then the Hon’ble  

High Court after assessment of the evidence in this case and while confirming the death sentence  

reached its finding that the appellant has committed robbery.  The question which was put to the  

appellant in connection with those ornaments is as follows:-

“This witness has further stated in her deposition that, her daughter was going to school  by rickshaw.  Some times Mr. Ramesh was going to put her on school on his cycle when rickshaw  was not available.  Moreover, this witness has identified cloths, golden earrings and silver anklets of  deceased Ms. Khushbu.  What you want to say about it?”

35. From the aforesaid question, it cannot be said that it was put to the appellant that he committed  

robbery but the High Court reached a finding that the appellant committed robbery and held:

“It  is  obvious  that  a  most  heinous  type  of  barbaric  rape,  murder  and  robbery was  committed on a helpless and defenseless girl aged 10 years.”

36. I am constrained to hold that appreciation of evidence by the High Court in this case, in affirming  

death penalty, has not been on a proper perspective and keeping in mind the parameters of ‘rarest  

of rare cases’ formulated in Bachan Singh (supra).   

37. The High Court while confirming death sentence in this case, compared this case with the decision

of this Court in the case of Dhananjoy Chatterjee alias Dhana Vs.  State of W.B. – (1994) 2  

SCC 220, and justified the death penalty in this case as similar penalty was imposed in the case of  

Dhananjoy (supra).   

38. There are vital differences in the facts of the two cases.  In the present case, there is no allegation  

that the appellant ever misbehaved with the deceased.

39. In Dhananjoy (supra), prior to the date of crime, there were many occasions when the victim had  

been teased by Dhananjoy on her way to and back from her school. The latest being on 2nd March,  

1990, three days prior to her death, when Dhananjoy had asked the deceased to accompany him to  

watch a movie. To that the deceased protested and had told her mother about it.  Then her father  

had consulted some neighbours and thereafter,  filed a written complaint to  the security agency  

which  had  hired  Dhananjoy and  deployed  in  their  apartment.  The  agency had  arranged  for  

Dhananjoy to be transferred to another apartment. Thus there was a motive and a sense of revenge  

in the mind of Dhananjoy in committing the crime against the deceased.

40. Here the facts are totally different.  

41. In Dhananjoy (supra), about the time or after the commission of the crime, two  PWs  saw  him  

come out in the balcony of the same flat in which the victim girl stayed when they called out his  

name.  Dhananjoy should not have gone to that flat as the father of the victim girl filed a complaint  

against him upon the same his transfer from the apartment was under consideration.  Dhananjoy  

was immediately asked to come down by those who called him and in response to  their call, he  

came out on the balcony of that flat.  Thus Dhananjoy’s presence in the scene of crime at or about  

the time of commission of the crime is not merely based on the circumstantial evidence.     

42. Third point of difference is with respect to the behaviour of Dhananjoy after the crime.

43. In Dhananjoy (supra) there are two very suspicious conduct of his. One is after he came down  

from the flat, Dhananjoy absconded.

44. After he came down, he spoke with the supervisor in a hurry and left the place. And thereafter, he  

did not report back to the office for many days nor did he come to collect his salary. He was later  

on found from his native village and his plea of alibi was found to be “belated and vague” by this  

Court.

45. In this case the appellant did not abscond.  He came to the same apartment on the next day.

46. In  Dhananjoy (supra), a cream coloured shirt button was found in the place of occurrence and  

which matched with the buttons of his shirt handed over by the accused to the police after he was  

apprehended.  Also, a broken chain was found which was proved to have been worn by Dhananjoy  

as it was recognized as being given to him by one of the PWs.   

47. Also, another item, i.e. a watch which was found from the Dhananjoy’s house had been taken by  

him from the flat and belonged to the mother of the deceased.   

48. Thus, these items connected unerringly Dhananjoy with the crime and are crucial in nature.

49. There is no such evidence in this case.

50. Therefore imposition of death penalty in Dhananjoy (supra) does not justify the imposition of the  

same sentence here.

51. In Megh Singh Vs. 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.

52. Criminal cases depend on facts and a single significant factual detail may alter the entire conclusion  

(para 18 page 671).

53. Death Penalty is a vexed subject in our legal system. In the 35 th Report of the Law Commission  

on Capital Punishment,  arguments  for  both  its  retention and abolition were  considered.  The  

matter  came to  be considered by the Law Commission as, Raghunath Mishra, Member of the  

Lok Sabha, moved a resolution in the House for its abolition. And in the course of the debate, it  

was agreed that the question be referred to the Law Commission.  

54. The  Commission  gave  a  detailed  Report  running  into  several  volumes.  Ultimately  the  

Commission recommended its retention but also recommended certain amendments of the Code  

of Criminal Procedure and the Indian Penal Code. Those recommendations given in Appendix  

XLIV of the report run as under:

“1). The Code of Criminal Procedure, 1898 - A provision requiring reasons for imposing either  sentence (of death or  imprisonment for life) for an offence which is punishable with death or  imprisonment for life in an alternative, should be inserted in the Code. [Paragraphs 820-822 of  the body of the Report]

2) Indian Penal Code - Persons below 18 years of age at the time of Commission of the offence  should not be sentenced to death. [Paragraphs 878 and 887 of the body of the Report]”

55. The Commission’s recommendations for its retention were given in a guarded language and they  

may be quoted:-

“Having regard, however, to the conditions in India, to the variety of the social up-bringing of its  inhabitants, to the disparity in the level of morality and education in the country, to the vastness  of its area, to the diversity of its population and to the paramount need for maintaining law and  order  in the country  at  the present  juncture  ,  India cannot  risk the experiment of abolition of  capital punishment.”  

(Emphasis added)

56. Despite these recommendations, the validity of death sentence came up for consideration before  

this Court on several occasions.  In one of the earliest cases, in the case of Jagmohan Singh Vs.  

State of U.P – AIR 1973 SC 947, this Court upheld its validity, even though, it acknowledged that  

this is a difficult and controversial subject.  Soon thereafter the matter came up for consideration  

before this Court again in Ediga Anamma Vs. 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 against death sentence under Indian law.  

Those guidelines are as follows:-

“26. Where the murderer is too young or too old the clemency of penal justice helps him. Where the  offender suffers from socio-economic, psychic or penal compulsions insufficient to  attract  a legal  exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other  general social pressures, warranting judicial notice, with an extenuating impact may, in special cases,  induce the lesser penalty. Extraordinary features  in the judicial process,  such as that  the death  sentence has hung over the head of the culprit excruciatingly long, may persuade the Court to be  compassionate. Likewise, if others involved in the crime and similarly situated have received the  benefit of life imprisonment or if the offence is only constructive, being under Section 302, read with  Section  149,  or  again  the  accused  has  acted  suddenly  under  another’s  instigation,  without  premeditation, perhaps the Court  may humanly opt  for life, even like where a just cause or real  suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons  used and the manner of their use, the horrendous features of the crime and hapless, helpless state of  the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed  into a judicial computer all such situations since they are astrological imponderables in an imperfect  and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual  predilection and so  we have sought  to  objectify to  the  extent  possible,  abandoning retributive  ruthlessness,  amending  the  deterrent  creed  and  accenting  the  trend  against  the  extreme  and  irrevocable penalty of putting out life.”

(Emphasis supplied)

57. Those formulations by Justice Krishna Iyer have been accepted in Amnesty International Report of  

Death Penalty (See Amnesty International Publication, page 80 to 81).

58. The aforesaid formulations must be kept  in mind by Courts  while exercising their discretion in  

imposing death  penalty.   His Lordship was of the  view that  individualization of  sentencing is  

normally achieved by a judicial ‘hunch’ which according to His Lordship was a procedural defect.  

In  my judgment  His Lordship’s formulation of  the  principles in  Ediga  Anamma  (supra)  is a  

systematic  statement,  which,  in  the  language  of  Justice  Homes,  may  be  called  “inarticulate

premises” which Court should consider before imposing the death sentence.  In Ediga Anamma  

(supra) Justice Krishna Iyer while tracing the history of capital punishment observed that its history  

“hopefully reflects the march of civilization from terrorism to humanism and the geography of death  

penalty depicts retreat from country after country.” (See para 22 page 805).

59. The Constitution Bench in  Bachan Singh (supra)  considered the decision in  Ediga Anamma  

(supra) and did not express a contrary view on those guidelines.  On the other hand, it shared the  

same view, by quoting from Ediga in paragraph 207, page 945 of the report.

60. But the categories of mitigating circumstances are never close and in paragraph 204 (page 944 of  

the said report) of Bachan Singh (supra), this Court recorded the submissions of Dr. Chitaley, the  

learned counsel who suggested some further mitigating factors.  They are:-

“Mitigating circumstances:— In the exercise of its discretion in the above cases, the court  shall  take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute  a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence  prove that the accused does not satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified  in committing the offence.

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

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

61. After recording the submissions of the learned counsel, the Court in Paragraph 205 at page 944 of  

the  report  accorded  its  approval  to  the  same by saying that  those  are  “undoubtedly relevant  

circumstances and must be given great weight in the determination of sentence”.  Therefore apart  

from the mitigating circumstances formulated in Ediga Anamma, those suggested by Dr. Chitaley  

and approved by this Court,  unless they overlap,  form part  of the ratio  in  Bachan  Singh as

mitigating circumstances accepted by this Court.

62. In paragraph 207, the learned Judges held that there are numerous other circumstances justifying  

the passing of the lighter sentence, as there may be circumstances of aggravation.

63. In paragraph 207,  in  Bachan Singh,  the learned Judges explained the principles in sentencing  

policy under Section 354(3)  of the Code of Criminal Procedure.  In my view the provisions of  

Section 354(3) must be read conjointly with Section 235(2) of the said Code.

64. In a  case  where  the  Court  imposes  the  death  sentence both  the  aforesaid provisions,  namely,  

Section 235(2) and Section 354(3) of the Code assume signal significance.

65. The Constitutional validity of Section 354(3) was upheld in Bachan Singh (supra) as the learned  

Judges have said that the legislative policy in sentencing is discernable from those two Sections.

66. In my judgment both those two Sections supplement each other and in a case where death penalty  

is imposed, both the Sections must be harmoniously and conjointly appreciated and read.

67. In Bachan Singh (supra), this Court interpreted those Sections almost in the similar view as would  

appear from paragraphs 164 and 165 (page 936 of the report).  The Constitution Bench held :-

“164. ......Section  235(2)  provides  for  a  bifurcated  trial and  specifically gives  the  accused  person a right of pre-sentence hearing, at which stage, he can bring on record material or evidence,  which may not  be strictly relevant to  or  connected with the particular crime under inquiry, but  nevertheless, have, consistently with the policy underlined in Section 354(3), a bearing on the choice  of sentence. The present legislative policy discernible from Section 235(2) read with Section 354(3)  is that in fixing the degree of punishment or making the choice of sentence for various offences,  including one  under  Section  302,  Penal  Code,  the  court  should  not  confine its  consideration  “principally” or merely to the circumstances connected with the particular crime, but also give due  consideration to the circumstances of the criminal.

68. In a criminal trial where the prosecution seeks to make out a case for imposition of death sentence,  

it has to discharge a very heavy and an onerous burden.  In such cases, the prosecution must, and I

repeat, must discharge this burden by demonstrating the existence of aggravating circumstances and  

the  consequential  absence  of  mitigating  circumstances.   In  discharging  such  a  burden  the  

prosecution must not  only prove beyond reasonable doubt  that  the accused has committed the  

crime but  in order  to  make out  a  case  for  death  sentence,  it  also  has  to  prove  beyond  any  

reasonable doubt how the crime has been committed and specially the aggravating circumstances  

which warrant a death penalty.  In such exercise by the prosecution, the accused must be given a  

real and effective chance of rebuttal and to  disprove the existence of aggravating circumstance.  

Therefore apart from his examination under Section 313, the accused must be separately heard on  

the sentence to  be imposed on him where he can demonstrate  all the mitigating circumstances.  

Those must be weighed in the balance and they must receive a liberal and expansive interpretation  

by Court.  In this context the following observations in Bachan Singh (supra) are very pertinent:-

“…Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in  

the area of death penalty must receive a liberal and expansive construction by the courts in accord  

with the sentencing policy writ  large in Section 354(3).   Judges should never be blood thirsty.  

Hanging of murderers has never been too  good  for them.  Facts and figures albeit incomplete,  

furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with  

extreme infrequency…………. It is, therefore, imperative to voice the concern that courts, aided by  

the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore  

scrupulous care and humane concern, directed along the highroad of legislative policy outlined in  

Section 354(3), viz.,  that for persons convicted of murder, life imprisonment is the rule and death  

sentence an exception.  A real and abiding concern for the dignity of human life postulates resistance  

to taking a life through law’s instrumentality.  

 (Emphasis supplied)

69. From the records, it does not appear that adequate and effective hearing was given to the accused  

by the trial court on the aforesaid basis before imposing the death sentence on him.  It appears that  

the Additional Sessions Judge,  9th Fast  Track Court,  Gujarat  returned a finding of guilt of the  

present appellant on 18.5.2005 and on that day itself allegedly heard the appellant on the sentence  

and imposed death sentence on that day.  Unfortunately that is not the purpose of Section 235(2) of

the Code.

70. Section 235(2) as interpreted by this Court in Bachan Singh (supra), and quoted above, provides  

for a ‘bifurcated trial’. It gives the accused (i) a right of pre-sentence hearing, on which he can (ii)  

bring on record material or evidence which may not be (iii) strictly relevant to or connected with  

the particular crime but (iv) may have a bearing on the choice of sentence.  Therefore it has to be a  

regular hearing like a trial and not a mere empty formality or an exercise in an idle ritual.  In view  

of  the  mitigating circumstances  endorsed  in  Bachan  Singh (supra)  the  State  must  prove,  by  

adducing evidence, that accused does not satisfy clause (3) and (4) of the circumstances mentioned  

in paragraph 204 (page 944 of the report) as those mitigating circumstances were accepted in para  

205 (page 944 of the report) in Bachan Singh (supra).

71. Here prosecution has not discharged any burden at all for less the burden referred to above.  This is  

a statutory obligation which is cast on the Court in a case where both Sections 235(2) read with  

Section 354(3) apply in view of the law laid down in Bachan Singh  (supra).   The mandate of  

Article 141 of the Constitution cannot be ignored either by the trial Court or the High Court.  

72. Therefore, regardless of whether the accused asks for such a hearing, the same must be offered to  

the accused and an adequate opportunity for bringing materials on record must be given to  him  

especially in case where Section 354(3) comes into play.  It is only after undertaking that exercise  

that ‘special reasons’ for imposing death penalty can be recorded by the Court.

73. In the order imposing death sentence, the learned trial Judge has not even once referred to Section  

354(3) of the Code.  Therefore, the imposing of death sentence by the learned trial Court is wholly  

illegal and contrary to the provisions of the Code of Criminal Procedure and contrary to the law  

laid down by this Court in Bachan Singh (supra).

74. Even without referring to Bachan Singh, in Muniappan Vs. 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 the accused on sentence was not to be discharged without putting formal questions to the  

accused. The obligation of hearing the accused under Section 235(2) CrPC has been explained as  

follows:-

“The Judge  must  make  a  genuine effort  to  elicit  from the  accused  all information  which will  eventually bear on the question of sentence... question which the Judge can put to the accused under  Section 235(2) and the answers which the accused makes to those questions are beyond the narrow  constraints of the Evidence Act. The court,  while on the question of sentence is in an altogether  different domain in which facts and factors which operate are of an entirely different order than  those which come into play on the question of conviction”.

75. Relying on the principles laid down in Bachan Singh in  Allauddin Mian Vs.  State of Bihar –  

(1989)  3  SCC  5,  the  Supreme Court  deprecated  the  practice  of  the  trial  Court  which,  after  

recording the finding of guilt and before the accused could “absorb and overcome the shock of  

conviction” asked the accused to say on the question of sentence.   In the instant case, the same  

procedure was adopted as pointed out in Para 67 herein above.  The learned Judges held that by  

doing so the purpose of Section 235(2) is not served.

76. The learned judges held that the provision of Section 235(2) of the CrPC serves a dual purpose and  

those purposes are as follows:

“...The said provision therefore satisfies a dual purpose; it satisfies the rule of natural  justice by according to the accused an opportunity of being heard on the question of sentence and at  the same time helps the court to choose the sentence to be awarded. Since the provision is intended  to  give the accused an opportunity to  place before the court  all the relevant material having a  bearing on the question of sentence there can be no doubt that the provision is salutary and must be  strictly followed. It is clearly mandatory and should not be treated as a mere formality”.

77. After  observing  as  such,  this  Court  mandated  a  general  rule  which  should  be  followed  in  

sentencing, specially in cases of sentencing of Death Sentences and those general principles are as  

follows:-

“...We think as a general rule the trial courts  should after recording the conviction adjourn the  matter  to  a future date  and call upon both the prosecution as well as the defence to  place the

relevant material bearing on the question of sentence before it and thereafter pronounce the sentence  to be imposed on the offender.”

78. In a subsequent three judge bench judgment of Malkiyat Singh and others Vs. 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:-

“Hearing contemplated  is  not  confined merely to  oral  hearing  but  also  intended  to  afford  an  opportunity to the prosecution as well as the accused to place before the court facts and material  relating to  various factors  on the question of sentence, and if interested by either side, to  have  evidence adduced to  show mitigating circumstances to  impose a  lesser sentence or  aggravating  grounds to  impose death penalty. Therefore, sufficient time must be given to  the accused or the  prosecution on the question of sentence, to show the grounds on which the prosecution may plead  or the accused may show that the maximum sentence of death may be the appropriate sentence or  the minimum sentence of life imprisonment may be awarded,  as the case may be. No doubt  the  accused declined to adduce oral evidence. But it does not prevent to show the grounds to impose  lesser sentence on A-1. This Court in the aforestated Allauddin and Anguswamy cases held that the  sentence awarded on the same day of finding guilt is not in accordance with the law”.

79. In  Arshad v.  State of Karnataka -  (1994) 4 SCC 383, this Court through Justice Anand (as his  

Lordship was then) again deplored the practice of proving guilt and sentencing on the same day. In  

that  case,  both was done on 8-5-92 itself and by a cryptic  order.   This Court   held that  the  

objective for which Section 235(2) was brought into the Code was  completely  ignored by the  

Session  Judge and the Learned  Judge  disapproved the sentencing procedure in a cryptic manner.  

It was held that it exposes the lack of sensitiveness on the part of the Court in dealing with such  

cases. (Para 17, pg. 389 of report).   

80. The High Court, unfortunately as the first appellate Court, both on facts and in law, has confirmed  

the death sentence without pointing out these glaring illegalities in sentencing procedure of the trial  

Court and especially in a case where a death penalty has been imposed.

81. The duties cast on the High Court, while dealing with reference for confirmation of death penalty  

under Sections 366, 367, 368, 369 and 370 of Code were also pointed out in Bachan Singh in

paragraphs 157, 158, 159 at  page 934 of the report.   In paragraph 159, the position has been  

summed up as under:-

“159. The High Court  has been given very wide powers under these provisions to  prevent any  

possible miscarriage of justice. In  State of Maharashtra v.  Sindhi, AIR 1975 SC 1665 this Court  

reiterated,  with emphasis, that  while dealing with a reference for confirmation of a sentence of  

death, the High Court must consider the proceedings in all their aspects, reappraise, reassess and  

reconsider the entire facts and law and, if necessary, after taking additional evidence, come to its  

own conclusions on the material on record in regard to  the conviction of the accused (and the  

sentence) independently of the view expressed by the Sessions Judge”.

82. Unfortunately in this case High Court failed to correct the flawed sentencing procedure followed by  

the  trial  Court  and  erred  in  law by confirming the  death  sentence  which led  to  an  obvious  

miscarriage of justice.

83. The challenge to the constitutionality of death sentence was repelled in Bachan Singh (supra) only  

in view of the legislative safeguards given in the sentencing policy in the aforesaid provisions of  

Sections 235(2) and 354(3) of the Code.  The Court has held that such procedure “cannot, by any  

reckoning, be said to be unfair, unreasonable and unjust” (para 167, page 937).

84. Thus,  it  appears  that  this Court  upheld the constitutionality of  death  penalty on the aforesaid  

doctrine of ‘due process’ which has been introduced in our constitutional jurisprudence in the case  

of Smt. Maneka Gandhi Vs. Union of 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 penalty in view of  

the  reasonable,  fair and just  procedures  which are  provided in the  sentencing policy by those  

Sections in the Criminal Procedure Code (paras 135 and 136, page 930 of the report).

86. Similarly in Furman V. Georgia - 408 U.S. 238 (1972),U.S. Supreme Court impliedly overruled  

its earlier decision in McGautha V. California – 402 U.S. 183, 196 (1971). In this context it may  

be  mentioned that  in nine separate  opinions the  learned  Judges  struck  down in  Furman Vs.  

Georgia by a majority of 5-4, the death penalty statutes at issue as cruel and unusual  in view of the  

denial of the ‘due process’ guaranteed by the Fourteenth Amendment.

87. Learned Judges in Furman observed that the sentencing policy was not properly structured and,  

therefore, it causes denial of Fundamental Rights.

88. The  Supreme Court  in  Bachan  Singh (supra)  also  insisted  on  the  importance  of  structured  

sentencing policy in death sentence cases to uphold its validity and held that  structured sentencing  

policy has  been  achieved in  view of the aforesaid two provisions, namely, Section 354(3) and  

Section 235(2) of the Code.

89. Therefore fairness, justice and reasonableness which constitute the essence of guarantee of life and  

liberty epitomized in Article 21 of the Constitution also pervades the sentencing  policy in Sections  

235(2)  and  354(3)  of  the  Code.   Those  two  provisions  virtually assimilate  the  concept  of  

“procedure established by law” within the meaning of Article 21 of the Constitution.  

90. Thus, a strict compliance with those provisions in the way it was interpreted in  Bachan Singh  

(supra) having regard to the development of constitutional law by this Court, is a must before death  

sentence can be imposed.   

91. While I fully share my learned Brother’s anxiety about the expectation of society to the adequacy of

the sentence to the nature of the crime, at the same time, we cannot be oblivious of the person who  

is alleged to have committed the crime and his rights under a fair and structured sentencing policy.  

This Court  laid down in Bachan Singh (supra) that before imposing death sentence, an abiding  

concern for the dignity of human life must be shown by Court.  

92. We must recognize that ‘cry for justice’ is not answered by frequent awarding of death sentence on  

a purported faith on ‘deterrence creed’.  Before choosing the option for death sentence, the Court  

must consciously eschew its tendency of ‘retributive ruthlessness’.

93. In Bachan Singh (supra), the majority opinion warned in paragraph 125, page 927:-

“that Judges should not take upon themselves the responsibility of becoming oracles or spokemen of  public opinion: Not  being representatives of the people, it is often better,  as a matter  of judicial  restraint,  to  leave the  function of assessing public opinion to  the  chosen representatives of the  people in the legislature concerned.

94. Therefore, this Court cannot afford to prioritise the sentiments of outrage about the nature of the  

crimes committed over the requirement to  carefully consider whether the person committing the  

crime is a threat to the society.  The Court must consider whether there is a possibility of reform or  

rehabilitation of the man committing the crime and which must be at the heart of the sentencing  

process.  It is only this approach that can keep imposition of death sentence within the ‘rarest of the  

rare cases’.

95. The expression ‘rarest of rare cases’ is not to be read as a mere play on words or a tautologous  

expression.

96. In upholding the constitutional validity of capital punishment, the Constitution Bench of this Court  

used that expression in Bachan Singh in order to read down and confine the imposition of capital  

punishment to extremely limited cases.  This is a very loaded expression and is not to trifled with.

It is pregnant with respect for the inviolability of human life.  That is why the word ‘rare’ has been  

used twice and once in a superlative sense.  Therefore, the significance of this expression cannot be  

watered down on a perceived notion of a ‘cry for justice’.

97. I now propose rely on a few decisions to show how this expression ‘rarest of rare case’ has been  

interpreted by this Court even where the accused was found guilty of both murder and rape and  

death sentence was awarded by the trial Court and the High Court confirmed it.

98. In  the  case  of  Chaman Vs.  Stae  of  NCT-  (2001)  2  SCC  28,  the  Court  after  finding the  

commission of crime held that a girl of 1 and ½ years was raped and killed but did not approve of  

the death sentence imposed on him by the Courts below and imposed on him a life sentence as this  

Court found that the appellant is not a dangerous person to endanger the society and the case is not  

coming within the parameters of the ‘rarest of rare case’.

99. In the case of Bantu @ Naresh Giri Vs. 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  of the said  

judgment, the Learned judges after considering the age of the accused and also the fact that he did  

not have any past criminal record held that the accused will not be a grave danger to society and  

further  held that  the case does  not  fall under  the rarest  of rare  cases and death sentence was  

commuted to life sentence.

100.In Surendra  Pal Singh Vs.  State of Gujarat-  (2005) 3 SCC 127, a minor girl was raped and  

killed and the Sessions Court imposed death penalty and the High Court of Gujarat also affirmed  

the same. But  this Court  found that  the case does  not  fall under  the rarest  of rare  cases and  

considering that the appellant was 36 years old and has no previous criminal record, held that he  

was not a menace to society. This Court held that it was not a rarest of rare cases and confirmed  

the conviction but commuted the sentence from death sentence to life imprisonment.

101.In Amrit Singh Vs. 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  due to  

excessive bleeding from her private parts. In that case, the Trial Court sentenced the accused to  

death sentence which was confirmed by the High Court  of Punjab and Haryana in a reference  

proceeding before it.  

102.In para 21 of page 136 of the judgment, this Court held that the imposition of death sentence in  

such cases was improper and it cannot be put in the category of rarest of rare cases and the Court  

imposed a sentence of rigorous imprisonment for life on that ground.  

103.In the case of Kulwinder           Singh   Vs. 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 person, Joginder Kaur also died in the same  

incident as a result of injuries received from gandashi blows inflicted on the neck by the accused. In  

that case, the death sentence was commuted to  imprisonment for life as the Court  found that it  

cannot be brought in the category of rarest of rare cases.     

104.Keeping these principles in mind, I find that in the instant case the appellant is a young man and his  

age was 28 years old as per the version in the charge-sheet. He is married and has two daughters.  

He has no criminal antecedents, at least none has been brought on record. His behaviour in general  

was not objectionable and certainly not with the deceased girl prior to the incident. The unfortunate  

incident is possibly the first crime committed by the appellant. He is not otherwise a criminal. Such  

a person is not a threat to the society. His entire life is ahead of him.  

105.Before  I  conclude,  if I  may quote  a  few lines from Sir  Winston Churchill about  Crime and

Punishment  and  which have  been quoted  by C.H.  Rolph in “Commonsense about  Crime and  

Punishment, page 175”. Those matchless words of Sir Winston Churchill are as under:-

“The mood and temper of the public with regard to the treatment of crime and criminals is one of  the unfailing tests of the civilization of any country.  A calm, dispassionate, recognition of the rights  of the accused – and even of the convicted – criminal against the State; a constant heart-searching  by all charged with the duty of punishment; a desire and eagerness to rehabilitate in the world of  industry those who have paid their due in the hard coinage of punishment; tireless efforts towards  the discovery of curative and regenerative processes; unfailing faith that there is a treasure, if you  can only find it, in the heart of every man; these are the symbols which in the treatment of crime and  criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living  virtue in it”.     

106.For the reasons discussed above and in view of mitigating circumstances and the law laid down in  

Bachan Singh  (supra)  and the various gaps in the prosecution evidence,  pointed hereinabove,  

death sentence cannot be awarded to the appellant as in my view it does not come under the ‘rarest  

of rare cases’. Apart from that in the case of the appellant proper sentencing procedure was not  

followed by the trial Court and the Hon’ble High Court erred by approving the same.  But I do not  

agree with his conviction on charges of robbery which, in my opinion, was not proved and on the  

alleged conviction on robbery no sentence was awarded to the appellant.   

107.I agree with His Lordship that the appellant has to be convicted on other charges. However, his  

conviction does not automatically lead to his death sentence.  

108.In my humble opinion instead of death sentence a sentence of rigorous imprisonment for life will  

serve the ends of justice.   

109.With the aforesaid modification on the sentence the appeal is dismissed to  the extent indicated  

above.  

.......................J. New Delhi (ASOK KUMAR GANGULY) April 27, 2009