RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF GUJARAT

Judgment

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

2.1. As regards the sentence, the facts and given circumstances in each case, the nature of the crime, the 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. 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 E

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 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 the offence and the manner in which it was executed or committed etc. [Para 24 and 29] [1083-C-D; 1085-C-F] G Sevaka Perumal etc. v. State of Tamil Naidu AIR 1991 SC 1463; Jashubha Bharatsinh Gohil v. State of Gujarat 1994 (4) SCC 353; Bachan Singh v. State of Punjab 1980 (2) SCC H i.: ~ .~ ~ - .. -~ .... - -· ·~~ '- ' ~· -· ,. ·- ,,;. RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF 1059 GUJARAT 684; Machhi Singh v. State of Punjab 1983 (3) SCC 470; A Devender Pal Singh v. State of NCT of Delhi 2002(50) SCC 234; State of M.P. v. Munna Choubey 2005 (2) SCC 712; Ravji v. State of Rajasthan 1996 (2) SCC 175 and Dhananjoy Chatterjee v. State of W.B. 1994 (2) SCC 220, relied on. B

2.3. If upon taking an overall global view of all the circumstances in the light of the propositions laid down by this Court and taking into account the answers to the questions posed by way of t.he test for the rarest of rare cases, the circumstances of the case are such that death 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 to be drawn up. (Para 36 and 37] (1090-C-E; 1090-E-F] D

3.1. The plea that in a case of circumstantial evidence death should not be awarded is without any logic. If the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, that E forms the foundation for conviction. That has nothing to do with the question of sentence as has been observed by this Court in various cases while awarding death sentence. The mitigating circumstances and the aggravating circumstances have to be balanced. In the F balance sheet of such circumstances, the fact that the case rests on circumstantial evidence has no role to play. In fact, in most of the cases where death sentences are awarded for rape and murder and the like, there is practically no scope for having an eye witness. They are not committed in the public view. But by very nature of - things in such cases, the available evidence is 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 G H 1060 SUPREME COUR~ REPORTS [2009] 6 S.C.R. A a mitigating circumstance, would amount consideration of an irrelevant aspect. [Para 38) [1090-F H; 1091-A-C] 8

3.2. 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. Looked at from any angle, the judgment of the High Court confirming the death sentence does not warrant any interference. [Para 39) I. - C [1091-C-D] Per Ganguly, J. 0

#1. On going through the circumstances enumerated, 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 and 7th to 12th circumstances might have been considered by courts below relevant for bringing home the guilt of the appellant, but the same cannot be said to E bring the case within the rarest of rare category. [Para 3) [1093-E-F] Bachan Singh v. State of Punjab AIR 1980 SC 898 and Ediga Anamma v. State of Andhra Pradesh AIR 1974 SC 799, relied on. F Ratansinh Oalsukhbhai Nayak v. State of Gujarat (2004) 1 sec 64; Nivrutti Pandurang Kokate and Others v. State of Maharashtra (2008) 12 sec 565; Oattu Ramrao Sakhare and Others v. State of Maharashtra (1997) 5 SCC 341; G Suryanarayana v. State of Karnataka (2001) 9 SCC 129; Megh Singh v. State of Punjab (2003) 8 SCC 666 and Jagmohan Singh v. State of U.P. AIR 1973 SC 947, referred to. Khujji alias Suendra Tiwari v. State of Madhya Pradesh H AIR 1991 SC 1853, held inapplicable. 1062 SUPREME COURT REPORTS [2009] 6 S.C.R. A

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

3.2. In a case where the court imposes the death E sentence both the provisions, namely, s.235(2) and s.354(3) of the Code of Criminal Procedure, 1973, which supplement each other, assume signal significance and they must be harmoniously and conjointly appreciated and read. Section 235(2) provides for a 'bifurcated trial'. F It gives the accused (i) a right of pre-sentence hearing, in which he can (ii) bring on record material or evidence which may not be (iii) strictly relevant to or connected with the particular crime but (iv) may have a bearing on the choice of sentence. Therefore, it has to be a regular hearing like a trial and not a mere empty formality or an exercise in an idle ritual. This is a statutory obligation which is cast on the court in a case where both s. 235(2) r/w s.354(3) apply. Therefore, regardless of whether the accused asks for such a hearing, the same must be offered to the accused and an adequate opportunity for G H ~__,... I - ,,. -- ,.. "' ..... .., --· -·- J )..- ' ' .~ J. ~ -- • ~ ' -! ' • .... -,I I- '! ~ RAMESHBHAI CHANDUBHAI RATHOD v. STATE OF1063. GUJARAT ' bringing materials on record must be given to him A especially in case where s. 354(3) comes into play. It is only after undertaking that exercise that 'special reasons' for imposing death penalty can be recorded by the court. The mandate of Article 141 of the Constitution in view of the ratio in Bachan Singh cannot be ignored either by the 8 trial court or the High Court. [Para 64 and 70-72) [1109- D; 1111-G-H; 1112-A, C-E] Bachan Singh v. State of Punjab AIR 1980 SC 898 and Arshad v. State of Kamataka (1994) 4 SCC 383, relied on. c 3.3. In the instant case, it does not appear that adequate and effective hearing was given to the accused by the trial court before imposing the death sentence on him. It appears that the trial court returned a finding of guilt of the appellant on 18.5.2005 and on that day itself D heard the appellant on the sentence and imposed the 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

ORDER Though both of us have agreed that conviction is to be maintained, one of us Pasayat, J has confirmed the death B sentence while Ganguly, J has held that life sentence is to be given. The matter is referred to a larger bench only on the question of sentence. The matter be placed before Hon'ble the Chief Justice of India for necessary orders. C R.P. Matter referred to larger Bench. , . ./