# ~cit RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF GUJARAT

- **Citation:** [2009] 6 S.C.R. 1055
- **Court:** Supreme Court of India
- **Decided:** 2009-04-27
- **Case number:** Criminal Appeal No. 575 of 2007
- **Bench:** Dr. Arijit Pasayat, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/cit-rameshbhai-chandubhai-rathod-v-state-of-gujarat-25790
- **Pages:** 68

## Headnote

PENAL CODE, 1860:
c
ss. 363, 366, 376, 397 and 302 - A girl of.10 years
enticed away by accused, raped and murdered -
Circumstantial evidence - Conviction and sentence of death ·
awarded by trial court, confirmed by High Court - HELD:
'J
Conviction maintained - As regards the sentence, in view of
difference of opinion as to confirmation of death sentence or D
imposition of life imprisonment, matter referred to larger Bench
- .Circumstantial evidence.
The appellant-accused, a watchman, was prosecuted
for commission of offences punishable ulss 363, 366,
E
376, 397 and 302 IPC on the allegations that he enticed
,.,
'1
away a child of ten years from her apartment, ravished
her and then killed her. The prosecution case was based
on the circumstances, namely, (1) the victim was raped
and she died a homicidal death; (2) she was residing with
F
her parents in 'S' Apartment; (3) the accused was serving
as a watchman since long and was residing with his
family in the Apartment opposite to 'S' Apartment; (4) the
-.,
accused had won the confidence of the victim; (5)
,;.
between 8.45 P.M. and 9.00 P.M. on 17-12-1999 (the date
G
of incident), the accused was last seen playing
badminton with deceased in ·s· Apartment; (6) at about
10.30 P .M. when parents of victim returned home, they
found her missing; (7) between 9.00 P.M. to 9.30 P.M. on
1055
H
1056
SUPREME COURT REPORTS [2009] 6 S.C.R.
A 17-12-1999 P.W.24 saw the appellant taking the victim on
his cycle; (8) after disclosure of PW.24 to PW 6 about
accused taking the victim on a cycle, a search was made
for accused and he was found missing; (9) on the
morning of 19-12-1999, the accused made extra-judicial
B confession before PW-4; (10) the accused showed the
place of incident where the dead body of the victim was
lying; (11) at the instance of the accused his cycle and
the school bag of the decease_d containing her
belongings were recovered; and (12) human blood was
C found on the T-shirt of the accused for which he offered
no explanation. The trial court convicted the accused of
the offences charged and sentenced him to death. The
High Court affirmed the conviction and confirmed the
death sentence. Aggrieved, the accused filed the appeal.·
0 Referring the matter to the larger Bench the Court
HELD: By the Court:
Though the conviction is to be maintained, there
being difference of opinion whether death sentence has
E to be confirmed or life sentence is to be given, the matter
is referred to a larger bench only on the question of
sentence.
Per Pasayat, J
F
1.1. There is no doubt that conviction can be based
solely on circumstantial evidence, but it should be tested
by the touch-stone of law relating to circumstantial
evidence laid down by this Court. It has been consistently
laid down by this Court that where a case rests squarely
G on circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and
circumstances are found to be incompatible with the
innocence of the accused and the guilt of any other
person. (Paras 13 and 18) (1078-B-C; 1080-C-D]
H
-
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1057
GUJARAT
Hanumant Govind Nargundkar and Anr. V. State of A
Madhya Pradesh AIR 1952 SC 343; Hukam Singh v. State
of Rajasthan AIR 1977 SC 1063; Eradu and Ors. v. State of
Hyderabad AIR 1956 SC 316; Earabhadrappa v. State of
Kamataka AIR 1983 SC 446; State of U.P. v. Sukhbasi and
Ors. AIR 1985 SC 1224; Ba/winder Singh v. State of Punjab· B
AIR 1987 SC 350; Ashok Kumar Chatterjee v. State of M.P.
AIR 1989 SC 1890; Bhagat Ram v. State of Punjab AIR 1989
SC 1890; C . . Chenga Reddy and Ors. v. State of A.P. (1996)
10 SCC 193; Pada/a Veera Reddy v. State of A.P. and Ors.
AIR 1990 SC 79; State of UP. v. Ashok Kumar 'Srivastava c
(1992 Crl.LJ 1104 and Sharad Birdhichand Sarda v. State
of Maharashtra AIR 1984 SC 1622, referred to.
"Wills' Circumstantial Evidence" (Chapter VI) by Sir
Alfred Wills, referred to.
,,
--
.
1.2. In the instant case, the circumstances
highl

## Text

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[2009] 6 S.C.R. 1055
~cit
RAMESHBHAI CHANDUBHAI RATHOD
A
v.
STATE OF GUJARAT
(Criminal Appeal No. 575 of 2007)
APRIL 27, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
PENAL CODE, 1860:
c
ss. 363, 366, 376, 397 and 302 - A girl of.10 years
enticed away by accused, raped and murdered -
Circumstantial evidence - Conviction and sentence of death ·
awarded by trial court, confirmed by High Court - HELD:
'J
Conviction maintained - As regards the sentence, in view of
difference of opinion as to confirmation of death sentence or D
imposition of life imprisonment, matter referred to larger Bench
- .Circumstantial evidence.
The appellant-accused, a watchman, was prosecuted
for commission of offences punishable ulss 363, 366,
E
376, 397 and 302 IPC on the allegations that he enticed
,.,
'1
away a child of ten years from her apartment, ravished
her and then killed her. The prosecution case was based
on the circumstances, namely, (1) the victim was raped
and she died a homicidal death; (2) she was residing with
F
her parents in 'S' Apartment; (3) the accused was serving
as a watchman since long and was residing with his
family in the Apartment opposite to 'S' Apartment; (4) the
-.,
accused had won the confidence of the victim; (5)
,;.
between 8.45 P.M. and 9.00 P.M. on 17-12-1999 (the date
G
of incident), the accused was last seen playing
badminton with deceased in ·s· Apartment; (6) at about
10.30 P .M. when parents of victim returned home, they
found her missing; (7) between 9.00 P.M. to 9.30 P.M. on
1055
H
1056
SUPREME COURT REPORTS [2009] 6 S.C.R.
A 17-12-1999 P.W.24 saw the appellant taking the victim on
his cycle; (8) after disclosure of PW.24 to PW 6 about
accused taking the victim on a cycle, a search was made
for accused and he was found missing; (9) on the
morning of 19-12-1999, the accused made extra-judicial
B confession before PW-4; (10) the accused showed the
place of incident where the dead body of the victim was
lying; (11) at the instance of the accused his cycle and
the school bag of the decease_d containing her
belongings were recovered; and (12) human blood was
C found on the T-shirt of the accused for which he offered
no explanation. The trial court convicted the accused of
the offences charged and sentenced him to death. The
High Court affirmed the conviction and confirmed the
death sentence. Aggrieved, the accused filed the appeal.·
0 Referring the matter to the larger Bench the Court
HELD: By the Court:
Though the conviction is to be maintained, there
being difference of opinion whether death sentence has
E to be confirmed or life sentence is to be given, the matter
is referred to a larger bench only on the question of
sentence.
Per Pasayat, J
F
1.1. There is no doubt that conviction can be based
solely on circumstantial evidence, but it should be tested
by the touch-stone of law relating to circumstantial
evidence laid down by this Court. It has been consistently
laid down by this Court that where a case rests squarely
G on circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and
circumstances are found to be incompatible with the
innocence of the accused and the guilt of any other
person. (Paras 13 and 18) (1078-B-C; 1080-C-D]
H
-
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1057
GUJARAT
Hanumant Govind Nargundkar and Anr. V. State of A
Madhya Pradesh AIR 1952 SC 343; Hukam Singh v. State
of Rajasthan AIR 1977 SC 1063; Eradu and Ors. v. State of
Hyderabad AIR 1956 SC 316; Earabhadrappa v. State of
Kamataka AIR 1983 SC 446; State of U.P. v. Sukhbasi and
Ors. AIR 1985 SC 1224; Ba/winder Singh v. State of Punjab· B
AIR 1987 SC 350; Ashok Kumar Chatterjee v. State of M.P.
AIR 1989 SC 1890; Bhagat Ram v. State of Punjab AIR 1989
SC 1890; C . . Chenga Reddy and Ors. v. State of A.P. (1996)
10 SCC 193; Pada/a Veera Reddy v. State of A.P. and Ors.
AIR 1990 SC 79; State of UP. v. Ashok Kumar 'Srivastava c
(1992 Crl.LJ 1104 and Sharad Birdhichand Sarda v. State
of Maharashtra AIR 1984 SC 1622, referred to.
"Wills' Circumstantial Evidence" (Chapter VI) by Sir
Alfred Wills, referred to.
,,
--
.
1.2. In the instant case, the circumstances
highlighted by the trial court and analysed in detail by the
High Court unerringly point at the accused to be author
of the crime. [Para 4) (1074-E]
State of U.P. v. Salish 2005 (3) SCC 114; Joseph and
Paulo v. State of Kera/a 2000 (5) SCC 197; Manive/ & Ors.
D
E
v. State of Tamil Nadu 2008(5) Supreme 577; Damodar v.
State of Karnataka 2000 SCC (Crl) 90, Ramreddy
Rajeshkhanna Reddy v. State of A.P. 2006 (10) SCC 172;
F
Jaswant Gir v. State of Punjab 2005(12)SCC 438 and
Kusuma Ankama Rao v State of A.P. 2008(9) SCALE 652,
referred to.
·
2.1. As regards the sentence, the facts and given
circumstances in each case, the nature of the crime, the
G
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
attendant circumstances are relevant facts which would
H
1058
SUPREME COURT REPORTS [2009] 6 S.C.R.
i.: ~
A enter into the area of consideration. After giving due
consideration to the facts and circumstances of each
.~
case, for deciding just and appropriate sentence to be
awarded for an offence, the aggravating and mitigating
factors and circumstances in which a crime has been
B committed are to be delicately balanced on the basis of
really relevant circumstances in a dispassionate manner
by the Court. [Para 23 and 27] [1082·F-G; 1084-D-E]
~ -
Mahesh v. State of M.P. (1987) 2 SCR 710, relied on.
c
Dennis Councle MCG v. State of California 402 US 183:
28 L.D. 2d 711, referred to.
"Law in Changing Society" by Friedman, referred to.
D
2.2. 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
E
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
exempfary treatment. Any liberal attitude by imposing
meager sentences or taking too sympathetic view merely
.. -
~
on account of lapse of time in respect of such offences
F will be result-wise counter productive in the long run and
against societal interest which needs to be cared for and
strengthened by string of deterrence inbuilt in the
sentencing system. It is, therefore, the duty of every court
to award proper sentence having regard to the nature of
G the offence and the manner in which it was executed or
-·
....
committed etc. [Para 24 and 29] [1083-C-D; 1085-C-F]
-
Sevaka Perumal etc. v. State of Tamil Naidu AIR 1991
SC 1463; Jashubha Bharatsinh Gohil v. State of Gujarat 1994
H (4) SCC 353; Bachan Singh v. State of Punjab 1980 (2) SCC
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1059
GUJARAT
·~~
684; Machhi Singh v. State of Punjab 1983 (3) SCC 470;
A
Devender Pal Singh v. State of NCT of Delhi 2002(50) SCC
234; State of M.P. v. Munna Choubey 2005 (2) SCC 712;
Ravji v. State of Rajasthan 1996 (2) SCC 175 and Dhananjoy
Chatterjee v. State of W.B. 1994 (2) SCC 220, relied on.
2.3. If upon taking an overall global view of all the
B
circumstances in the light of the propositions laid down
'-'
by this Court and taking into account the answers to the
questions posed by way of t.he test for the rarest of rare
cases, the circumstances of the case are such that death c
sentence is warranted, the court would procee~ to do so.
What is culled out from the decisions of this Court is that
while deciding the question as to wheth.er the extreme
penalty of death sentence is to be awarded, a balance
sheet of aggravating and mitigating circumstances has
D
~·
to be drawn up. (Para 36 and 37] (1090-C-E; 1090-E-F]
3.1. The plea that in a case of circumstantial evidence
death should not be awarded is without any logic. If the
circumstantial evidence is found to be of unimpeachable
character in establishing the guilt of the accused, that
E
forms the foundation for conviction. That has nothing to
do with the question of sentence as has been observed
-· ,.
by this Court in various cases while awarding death
sentence. The mitigating circumstances and the
aggravating circumstances have to be balanced. In the
F
balance sheet of such circumstances, the fact that the
case rests on circumstantial evidence has no role to play.
In fact, in most of the cases where death sentences are
awarded for rape and murder and the like, there is
practically no scope for having an eye witness. They are G
·-
not committed in the public view. But by 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
H
1060
SUPREME COUR~ REPORTS [2009] 6 S.C.R.
A a mitigating circumstance, would amount to
consideration of an irrelevant aspect. [Para 38) [1090-FH; 1091-A-C]
3.2. The case at hand falls in the rarest of rare
8 category. The circumstances highlighted establish the
depraved acts of the accused and they call for only one
sentence i.e. death sentence. Looked at from any angle,
the judgment of the High Court confirming the death
I. -
sentence does not warrant any interference. [Para 39)
C [1091-C-D]
Per Ganguly, J.
1. On going through the circumstances enumerated,
the first three circumstances, by themselves, do not
0 fasten any guilt on the appellant. In conjunction with
other circumstances they may be relevant. However the
4th, 5th and 7th to 12th circumstances might have been
considered by courts below relevant for bringing home
the guilt of the appellant, but the same cannot be said to
E bring the case within the rarest of rare category. [Para 3)
[1093-E-F]
F
Bachan Singh v. State of Punjab AIR 1980 SC 898 and
Ediga Anamma v. State of Andhra Pradesh AIR 1974 SC
799, relied on.
Ratansinh Oalsukhbhai Nayak v. State of Gujarat (2004)
1 sec 64; Nivrutti Pandurang Kokate and Others v. State of
Maharashtra (2008) 12 sec 565; Oattu Ramrao Sakhare and
Others v. State of Maharashtra (1997) 5 SCC 341;
G Suryanarayana v. State of Karnataka (2001) 9 SCC 129;
Megh Singh v. State of Punjab (2003) 8 SCC 666 and
Jagmohan Singh v. State of U.P. AIR 1973 SC 947, referred
to.
Khujji alias Suendra Tiwari v. State of Madhya Pradesh
H AIR 1991 SC 1853, held inapplicable.

1062
SUPREME COURT REPORTS [2009] 6 S.C.R.
A
3.1. In a criminal trial where the prosecution seeks to
~__,...
make out a case for imposition of death sentence, it has
to discharge a very heavy and onerous burden. In such
cases, the prosecution must, and must discharge this
burden by demonstrating the existence of aggravating
B circumstances and the ccnsequential absence of
mitigating circumstances. In discharging such a burden
the prosecution must not only prove beyond reasonable
doubt that the accused has committed the crime but in
I -
order to make out a case for death sentence, it also has
c to prove beyond any reasonable doubt how the crime
has been committed and specially the aggravating
circumstances which warrant a death penalty. In the
instant case, the prosecution has not discharged any
burden at all required to be discharged in a case of death
D sentence. [Para 68 and 71] [1110-C-F; 1112-8-C]
Bachan Singh v. State of Punjab AIR 1980 SC 898 -
relied on.
3.2. In a case where the court imposes the death
E sentence both the provisions, namely, s.235(2) and
s.354(3) of the Code of Criminal Procedure, 1973, which
supplement each other, assume signal significance and
they must be harmoniously and conjointly appreciated
and read. Section 235(2) provides for a 'bifurcated trial'.
,,. --
F It gives the accused (i) a right of pre-sentence hearing,
in which he can (ii) bring on record material or evidence
which may not be (iii) strictly relevant to or connected
with the particular crime but (iv) may have a bearing on
the choice of sentence. Therefore, it has to be a regular
G hearing like a trial and not a mere empty formality or an
exercise in an idle ritual. This is a statutory obligation
,..
loo
which is cast on the court in a case where both s. 235(2)
r/w s.354(3) apply. Therefore, regardless of whether the
accused asks for such a hearing, the same must be
H offered to the accused and an adequate opportunity for
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF1063.
"'
GUJARAT
..... ..,
'
bringing materials on record must be given to him A
especially in case where s. 354(3) comes into play. It is
--·
only after undertaking that exercise that 'special reasons'
for imposing death penalty can be recorded by the court.
The mandate of Article 141 of the Constitution in view of
the ratio in Bachan Singh cannot be ignored either by the
8
trial court or the High Court. [Para 64 and 70-72) [1109D; 1111-G-H; 1112-A, C-E]
-·-
Bachan Singh v. State of Punjab AIR 1980 SC 898 and
J
Arshad v. State of Kamataka (1994) 4 SCC 383, relied on. c
3.3. In the instant case, it does not appear that
adequate and effective hearing was given to the accused
'
by the trial court before imposing the death sentence on
'
him. It appears that the trial court returned a finding of
guilt of the appellant on 18.5.2005 and on that day itself D
.~
)..-
heard the appellant on the sentence and imposed the
J.
death sentence. That is not the purpose of s.235(2) of the
Code. Besides, in the order imposing death sentence,
the trial Judge has not even once referred to s. 354(3) of
the Code. Therefore, the imposing of death sentence by
E
~
the trial court is wholly illegal and contrary to the
provisions of the Code and the law laid down by this
Court in Bachan Singh*. [Para 69 and 73) [1111-E-F; 1112-
-- •
F]
~
*Bachan Singh v. State of Punjab AIR 1980 SC 898;
F
'
Muniappan v. State of Tamil Nadu (1981) 3 SCC 11;
-!
'
Allauddin Mian v. State of Bihar (1989) 3. SCC 5 and Malkiyat
•
Singh and Others v. State of Punjab, (1991) 4 SCC 341, relied
on.
G
....
3.4. The High Court, which is the first appellate court,
-,I
Iboth on facts and in law, has confirmed the death
'!
sentence without pointing out the glaring illegalities in
~
sentencing procedure of the trial court and especially in
a case where a death penalty has been imposed. It failed
H
1064
SUPREME COURT REPORTS [2009] 6 S.C.R.
A to correct the flawed sentencing procedure followed by
·r~
the tria1 court, and erred in law by confirming the death
sentence which led to an obvious miscarriage of justice.
[Para 80 & 82] (1115-D; 1116-B]
B
3.5. The challenge to the constitutionality of death
sentence was repelled in Bachan Singh only in view of the
legislative safeguards given in the sentencing policy in
the provisions of ss. 235(2) and 354(3) of the Code. The
Court has held that such procedure "cannot, by any
~ ~
c
reckoning, be said to be unfair, unreasonable and
unjust". It appears that this· Court upheld the
constitutionality of death penalty on the doctrine of 'due
process' which has been introduced in our constitutional
jurisprudence in Maneka Gandhi's case. Therefore
D
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 ss. 235(2) and 354(3) of the Code.
These two provisions virtually assimilate the concept of
"procedure established by law" within the meaning of
E Article 21 of the Constitution. As has been laid down by
this Court in Bachan Singh, before imposing death
-
sentence, an abiding concern for the dignity of human life
must be shown by court. [Para 83, 89 and 91] [1116-B-D;
1117-C-D, F-G]
• -
F
Smt. Maneka Gandhi v. Union of India and another AIR
1978 SC 597, referred to.
Furman v. Georgia 408 U.S. 238 and Mcgautha v.
California 402 U.S. 183, 196 (1971), referred to.
G
4.1. The expression ·rarest of rare cases' is not to be
,...
lo:
read as a mere play on words or a tautologous
expression. In upholding the constitutional validity of
capital punishment, the Constitution Bench of this Court
H
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1065
GUJARAT
.... ___,,
used that expression in Bachan Singh in order to read
A
down and confine the imposition of capital punishment
to extremely limited cases. This is a very loaded
expression and is not to be trifled with. It is pregnant with
respect for the inviolability of human life. That is why the
word ·rare' has been used twice and once in a superlative
B
sense. [Para 95 and 96) [1118-E-G]
- ).
Bachan Singh v. State of Punjab AIR 1980 SC 898 ;
Bantu @ Naresh Giri v. State of Uttar Pradesh AIR 2002 SC
70; Surendra Pal Singh v. State of Gujarat (2002) 3 SCC 127, c
Amrit Singh v. State of Punjab AIR 2002 SC 132 and
Ku/winder Singh v. State of Punjab AIR 2007 SC 2868, relied
on.
4.2. In the instant case, accused is a young man and
his age was 28 years as per the version in the chargeD
:
~
sheet. He is married and has two daughters. He has no
criminal antecedents, at least none has been brought on
record. His behaviour in general was not objectionable
and certainly not with the deceased girl prior to the
incident. The unfortunate incident is possibly the first
E
crime committed by the appellant. He is not otherwise a
criminal. Such a person is not a threat to the society.
[Para 104] [1120-E-F]
.,.,,
'+
4.3. In view of the principles enshrined in various
F
decisions of the Court and in view of mitigating
circumstances and the law laid down in Bachan Singh,
and keeping in view the various gaps in the prosecution
evidence, death sentence cannot be awarded to the
appellant as it does not come under the ·rarest of rare
G
....
cases'. Apart from that, in the instant case, proper
-,i
sentencing procedure was not followed by the trial court,
and the High Court erred by approving the same. In the
circumstances, a sentence of rigorous imprisonment for
life will serve the ends of justice. (Para 106 and 108)
H
(1121-D-G]
1066
SUPREME COURT REPORTS [2009] 6 S.C.R.
A
Case Law Reference:
Y""'
2005 (3) sec 114
referred to
Para 6
2006 (10) sec 112
referred to
Para 7
8
2005{12)SCC 438
referred to
Para 8
2008(9) SCALE 652
referred to
Para 8
2008(5) Supreme 577
referred to
Para 8
\ ~
c
(2000) 5 sec 197
referred to
Para 9
2000 sec (Crl) 90
referred to
Para 10
AIR 1977 SC 1063
referred to
Para 13
D
AIR 1956 SC 316
referred to
Para 13
-..(
'
AIR 1983 SC 446
referred to
Para 13
AIR 1985 SC 1224
referred to
Para 13
E
AIR 1987 SC 350
referred to
Para 13
AIR 1989 SC 1890
referred to
Para 13
(1996) 10 sec 193
referred to
Para 14
'¥ --'
F
AIR 1990 SC 79
referred to
Para 15
(1992 Crl.LJ 1104
referred to
Para 16
1952 SC 343
referred to
Para 19
G
AIR 1984 SC 1622
referred to
Para 20
,..
..
(1987) 2 SCR 710
relied on
Para 23
AIR 1991 SC 1463
relied on
Para 24
H
402 US 183: 28 L.D. 2d 711 reffered to
Para 27
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1067
GUJARAT
.... 'f
1994 (4l sec 353
relied on
Para 28
A
1994 (2) sec 220
relied on
Para 30
1996 (2) sec 175
relied on
Para 31
2005 (2) sec 112
relied on
Para 32
B
1980 (2) sec 684
relied on
Para 33
-·
1983 (3) sec 470
relied on
Para 34
2002(50) sec 234
relied on
Para 35 c
AIR 1980 SC 898
relied on
Para 3
159 us 523 1895
referred to
Para 9
(2004) 1 sec 64
referred to
Para 9
(1997) 5 sec 341
referred to
Para 12
D
)..
, ..
(2001) 9 sec 129
referred to
Para 13
(2000) 8 sec 740
relied on
Para 24
26 C.W.N. 1010
referred to
Para 26
E
JT 2008(11) SC 658
relied on
Para 26
AIR 1991 SC 1853
neld inapplicable Para 31
- ..
(1994) 2 sec 220
distinguished.
Para 37
F .
(2003) 8 sec 666
distinguished
Para 51
AIR 1973 SC 947
relied on
Para 56
AIR 1974 SC 799
relied on
Para 56
(1981) 3 sec 11
relied on
Para 74
G
-.
-;I
(1989) 3 sec 5
relied on
Para 75
(1991) 4 sec 341
relied on
Para 78
(1994) 4 sec 383
relied on
Para 79
H
1068
SUPREME COURT REPORTS [2009J 6 S.C.R.
A
AIR .1978 SC 597
referred to
Para 84
y""
408 U.S. 238
referred to
Para 86
402 U.S. 183, 196 (1971) referred to
Para 86
B
AIR 2002 SC 70
relied on
Para 99
(2002) 3 sec 121
relied on
Para 100
AIR 2002 SC 132
relied on
Para 101
-\ -
AIR 2007 SC 2868
relied on.
Para 103
c
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 575 of 2007.
From the Judgment & Order dated 1'6.2.2006 of the High
D
Court of Gujarat at Ahmedabad in Confirmation Case No. 4 of
2005 with the Criminal Appeal No. 1221 of 2005.
-1'
Sudhir Kulshreshtha for the Appellant.
H. Wahi, E. Enatoli Serna and Mamta Tushar for the
E Respondent.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. A large number of cases in
recent times coming before this Court involving rape and/or
•
~
F murder of girls of tender age is a matter of concern. In the instant
case the victim who had not seen even ten summers in her life
is the victim of sexual assault and animal lust of the accused
appellant. She was not only raped but was murdered by the
accused appellant. The accused was found guilty for offences
G punishable under Sections 363, 366, 376, 397 and 302 of the
Indian Penal Code, 1860 (in short the 'IPC'). He was sentenced
.-
"
to 7 years, 10 years, imprisonment for life, 7 years and death
senten~e for the aforesaid offences. Conviction was recorded
and sentences were imposed by learned Additional Sessions
H Judge, Fast Track Court No.9, Surat. In view of the award of
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1069
.... '1
GUJARAT [DR. ARIJIT PASAYAT, J.]
the death sentence reference was made under Section 366 of
A
. the Code of Criminal Procedure, 1973 (in short the 'Code'). The
, accused appellant had also preferred an appeal which was
dismissed by the impugned judgment. Both the confirmation
case and the criminal appeal were disposed of. Death
sentence was confirmed while the criminal appeal was
B
dismissed.
-·>
2. Prosecution version as unfolded during trial is as
follows:
The complainant i.e. Nareshbhai Thakorebhai Patel is c
residing in flat No. A/2 of Sanudip Apartment, located on
Rander Road of Surat City, with his family. On the Ground Floor
of the apartment, he is running a grocery shop as well as· a STD
PCO Booth. The name of his wife is Ms. Kailashben. They were
?>-
blessed with two children. The eldest is boy named Brijesh who
D
was aged about 16 years at the time of incident. The deceased
was student of IVth Standard, in Ankur School, situated near
Sardar Circle, Surat, whereas son of the complainant was
prosecuting studies in Swaminarayan Gurukul and was staying
in hostel of Swaminarayan Temple: The appellant was
E
employed as Watchman of Sanudip Apartment and was
residing with his wife Savita and two children in a room of the
-
1
apartment which is opposite Sanudip Apartment. The incident
took place on December 17, 1999. The complainant with his
wife, Ms. Kailashben, went to Udhana at about 8 PM to attend
F
a religious ceremony. After return from Udhana, the
complainant did not find the victim. Therefore, he made
inquiries about the victim from his relatives. Those staying in
the apartment informed the complainant that sometime before
.. ~
his return from Udhana, the deceased was playing badminton,
G
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
H
1070
SUPREME COURT REPORTS f2009] 6 S.C.R.
A complainant was recorded by Head Constable Ramdas Barko
.,. ....
Borde, who was PSO of the Police Station. Head Constable
Borde handed over investigation of complaint lodged by the
complainant to ASI Mr. Ashokbhai H. Patil. After lodging the
complaint, the complainant continued search of the victim. On
B December 18, 1999, one Mr. Bipinbhai Bhandari, who is a
friend of the complainant, came to the house of the complainant
and informed the complainant that his old servant, Vishnubhai,
~ -
had informed him that he had spotted the appellant taking the
deceased with him on his cycle. Mr. Bipinbhai also informed
c the complainant that he was told by Vishnubhai that he had
shouted at the appellant but the appellant had not stopped. On
learning these facts, the complainant started search of the
appellant, who was employed as Watchman of the apartment.
The complainant also informed the police as to what was
D 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
E 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
)f -
victim and killed her. Therefore, Mr. Chandravadan brought the
F appellant to the house of the complainant. On being asked, the
appellant informed the complainant and others, who had
collected near the house of the complainant, that he had taken
the deceased on December 17, 1999 with him on his bicycle
and raped her and as he had feared that she would disclose
G the incident to others, he had killed her. Thereupon, the ....
complainant informed the police, who arrived at the house of
the complainant within no time. The appellant took the
complainant and police to the place of incident where dead
body of the deceased was found lying. The complainant,
H thereupon, lodged First Information Report about rape of his
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF1071
GUJARAT [DR. ARIJIT PASAYAT, J.]
..... ,,
daughter and her murder, against the appellant on December
A
19, 1999. On the basis of complaint of the complainant,
offences were registered against the appellant. The complaint
of the complainant was investigated by Pl SA Desai, who held
inquest on the dead body of the. deceased and made
arrangements for sending the same to hospital for postmortem
B
examination. From the place of incident, a broken bottle
containing Castor oil and a knife, were recovered. The
·- ,.
appellant was arrested and pursuant to disclosure statement
made by him, the cycle used by him, for carrying the deceased
to the place of incident, and school-bag of the deceased, c
containing gold and silver ornaments, were recovered. Silver
and gold ornaments recovered from the school-bag were
identified by mother of the deceased as belonging to the
deceased. Pl Desai recorded statements of those persons who
were supposed to be conversant with the facts of the case.
D
·~
Incriminating articles seized during the course of investigation
were sent to Forensic Science Laboratory (in short the 'FSL')
fpr analysis. The post-mortem examination of the body of the
deceased indicated that the deceased was subjected to rape
and was, thereafter, murdered. The appellant, who was arrested,
E
was forwarded to Dr. Meghrekhaben Mehta for Medical
Examination. Before Dr. Megrekhaben Mehta, the appellant
stated that he had sustained injuries while committing rape and
-
~
murder. On completion of investigation, the appellant was
charge-sheeted in the Court of learned Chief Judicial
F
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
f
Sessions Case No. 79 of 2000.
G
'j
Since the accused persons pleaded innocence trial was
. held. Thirty four witnesses were examined. In addition, certain
documents were placed on record. The case primarily was
based on circumstantial evidence as there was no eye witness.
H
1072
SUPREME COURT REPORTS [2009) 6 S.C.R.
The circumstances highlighted by the trial Court and the High
't .....
A
Court are as follows:
1.
The first circumstance is that the deceased was
raped and she died a homicidal death.
B
2.
The second circumstance is that the deceased
victim who was aged about 10 years was residing
with her parents in flat No.N2 of Sanudip Apartment
..\ -
located on Rander Road of Surat City.
c
3.
The third circumstance is that the appellant was
serving as a Watchman since long and he was
residing with his family in a room located on ground
floor of Happy Home Apartments situated opposite
Sanudip Apartment, Surat.
D
4.
The fourth circumstance is that the accused
appellant had won the confidence of the victim as
a result of which the victim had reposed confidence
in the appellant.
E
5.
The fifth circumstance which is sought to be proved
is that between 8.45 p.m. and 9.00p.m. on
December 17, 1999 the appellant was last seen
playing badminton with the deceased in Sanudip
~
....
Apartment.
F
6.
The sixth circumstance which is sought to be proved
is that the on December 19, 1999 at about 10.30
p.m. the parents of the victim returned home and
found that the deceased was missing.
G
7.
The seventh circumstance which is sought to be
relied upon by the prosecution is that between 9.00
"'
p.m. and 9.30 p.m on December 17, 1999
Vishnubhai Bahadur (PW-24) had seen the
appellant taking the deceased on his cycle near
H
Adajan Patia, Surat.
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1073
GUJARAT [DR. ARIJIT PASAYAT, J.]
.....
~
A
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.
B
9.
The next circumstance which is sought to be relied
upon by the prosecution is that in the morning of
-->
December 1999 witness Chandravadan who was
going home had seen the accused sitting at an
open place near Bhulka Bhavan School and had c
approached the appellant anq on enquiry being
made the appellant had m~de extra judicial
confession before him at.that time.
10.
The other circumstance which is sought to be
proved by the prosecution is that on arrival of police
D
)..
at Sanudip Apartment after being informed by
complainant Nareshbhai the appellant had shown
the place of incident where the dead body of the
deceased was found lying.
11.
The next circumstance is that at the instance of the
E
accused appellant his cycle and school bag of the
deceased were recovered and school bag was
- •
found containing anklets and earrings belonging to
the deceased.
F
12.
Human Blood was found from T-shirt of the accused
and no explanation was offered by the appellant as
to how human blood was found on his T-shirt.
. ...,
The High Court found the circumstances to be credible,
G
~
cogent and reliable. The High Court while referring the
circumstances as noted by the High Court upheld the
conviction. It did not find any substance in the plea of the
accused appellant that the evidence of the child witness (PW17) cannot be relied upon and the extra judicial confession
H
1074
SUPREME COURT REPORTS [2009] 6 S.C.R.
A cannot also be relied upon as police was present. ·The concept
) ...
of last seen together cannot be pressed into service in the
instant case as PW-24 was not sure of the date or the time.
.A'-
Additionally, it was submitted that in a case where circumstantial
evidence is the foundation for conclusion of guilt the death
B sentence cannot be awarded. The High Court noted that the
evidence of the child witness PW-17 after careful analysis has
been found to be acceptable and, therefore there is no infirmity
in the conclus_ion of the High Court. Similarly, the plea relating
~ ,
to the extra judicial confession was also not accepted. The High ·
c Court held that several witnesses have seen the accused and
the deceased together in close proximity time at the time of
occurrence and, therefore, the accused was required to explain
the circumstances as to how immediately thereafter the
deceased was found to be dead. Therefore, the appeal filed
D 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.
E
4. It is to be noted that the circumstances highlighted by
the trial Court and analysed in detail by the High Court unerringly
point at the accused to be author of the crime in the present
case.
•
F
5. So far as the last seen aspect is concerned PWs 4, 5,
6, 17 and 24 had categorically stated that the deceased was
seen in the company of the accused just before the time of
death. Additionally, the extra judicial confession was not
recorded in the presence of the police. It is clear from the
G evidence of the witnesses that when the first confession was
,,.,
recorded police personnel were not present. So far as the
'"
evidence of PW-24 regarding the last seen aspect is
concerned his evidence has to be read alongwith the evidence
of PWs 5 and 6. Though PW-17 was a child witness
H nevertheless the Court has taken care of analyzing his
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF1075
GUJARAT [DR. ARIJIT PASAYAT, J.]
--; ¥
evidence after being satisfied that child was speaking the truth.
A.
6. So far as the last seen aspect is concerned it is
necessary to take note of two decisions of this court. In State
of UP. v. Satish [2005 (3) sec 114] it was noted as follows:
"22. The last seen theory comes into play where the timeB
gap between the point of time when the accused and the
-)
deceased were seen last alive and when the deceased
is found dead is so small that possibility of any person
other than the accused being the author of the crime
becomes impossible. It would be difficult in some cases c
to positively establish that the deceased was last seen with
the accused when there is a long gap and possibility of
other persons coming iil between exists. In the absence
of any other positive evidence to conclude that the
accused and the deceased were last seen together, it
D
would be hazardous to come to a conclusion of guilt in
those cases. In this case there is positive evidence that
the deceased and the accused were seen together by
witnesses PWs. 3 and 5, in addition to the evidence of
PW-2." ·
E
7. In Ramreddy Rajeshkhanna Reddy v. State of A.P.
[2006 (10) sec 172] it was noted as follows:
-1'
"27. The last~seen theory, furthermore, comes into play
where the time gap between the point of time when the
F
accused and the deceased were last seen alive and the
deceased is found dead is so small that possibility of any
person other than the accused being the author of the
crime becomes impossible. Even in such a case the courts
;
should look for some corroboration".
G
"'
j
(See also Bodh Raj v. State of J&K (2002(8) SCC
45).)"
- · 8. A similar view was also taken in Jaswant Gir v. State
of Punjab [2005(12) SCC 438], Kusuma Ankama Rao v State
f-1
1076
SUPREME COURT REPORTS [2009] 6 S.C.R.
'1 ,..
A of A.P. (2008(9) SCALE 652) and in Manivel & Ors. v. State
of Tamil Nadu ( 2008(5) Supreme 577).
9. In Joseph and Paulo v. State of Kera/a [2000(5) SCC
197] it was, inter alia, held as follows:
B
"The formidable incriminating circumstances against the
appellant, as far as we could see, are that the deceased
was taken away from the convent by the appellant under
~~
a false pretext and she was last seen alive only in his
company and that it is on the information furnished by the
c
appellant in the course of investigation that jewels of the
deceased which were sold to PW 11 by the appellant,
were seized."
"The incriminating circumstances enumerated above
D
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
E
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
F
opportunity but stood self-condemned. Such incriminating
links of facts could, if at all, have been only explained by
the appellant, and by nobody else, they being personally
and exclusively within his knowledge. Of late, courts have,
from the falsity of the defence plea and false answers given
..
G
to court, when questioned, found the missing links'to be
~
supplied by such answers for completing the chain of
incriminating circumstances necessary to connect the
person concerned with the crime committed.(See: State
of Maharashtra v. Suresh). That missing link to connect the
H
->
RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1077
GUJARAT [DR. ARIJIT PASAYAT, J.]
accused appellant, we find in this case provided by the
A
blunt and outright denial of every one and all that
incriminating circumstances pointed out which, in our view,
with sufficient and reasonable certainty on the facts proved,
connect the accused with the death and the cause of the
death of Gracy and for robbing her of her jewellery worn
B
by her -
MOs 1 to 3, under Section 392. The deceased
meekly went with the accused from the Convent on account
of the misrepresentation made that her mother was
seriously ill and hospitalised apparently reposing faith and
confidence in him in view of his close relationship- being c
the husband of her own sister, but the appellant seems to
have not only betrayed the confidence reposed in him but ,
also took advantage of the loneliness of the hapless
woman. The quantum of punishment imposed is
commensurate with the gravity of the charges held proved
D ·
and calls for no interference in our hands, despite the fact
that we are not agreeing with the High Court in respect of
the findings relating to the charge under Section 376.
10. In Damodar v. State of Kamataka (2000 SCC (Crl) 90]
it was, inter alia, observed as follows:
E
11. "From the evidence of PWs. 1,6,7 & 8 the prosecution
has satisfactorily established that the appellant was last seen
with the deceased on 30.4.91. The appellant either in his
Section 313 Cr.P.C. statement or by any other evidence has
F
not established when and where he and the deceased parted
company after being last seen. n
12. Before analyzing factual aspects it may be stated that
for a crime to be proved it is not necessary that the crime must
be seen to have been committed and must, in all circumstances
G
be proved by direct ocular evidence by examining before the
Court those persons who had seen its commission. The offence
can be proved by circumstantial evidence also. The principal
fact or factum-probandum may be proved indirectly by means
of certain inferences drawn from factum probans, that is, the
H
1078
SUPREME COURT REPORTS [2009J 6 S.C.R.
~
A evidentiary facts. To put it differently circumstantial evidence is ·
'I
~
'
not direct to the point in issue but consists of evidence of
various other facts which are so closely associated with the fact
in issue that taken together they form a chain of circumstances
from which the existence of the principal fact can be legally
8 inferred or presumed.
13. It has been consistently laid down by this Court that
where a case rests squai"ely on circumstantial evidence, the
inference of guilt can be justified only when all the incriminating
,\ -
c facts and circumstances are found to be incompatible with the
innocence of the accused or the guilt of any other person. (See
Hukam Singh v: State of Rajasthan AIR (1977 SC 1063);
Eradu and Ors. v. State of Hyderab.ad (AIR 1956 SC 316);
Earabhadrappa v. State of Kamataka (AIR 1983 SC 446);
D
State of U.P. v. Sukhbasi and Ors.