2009 Supreme(SC) 843

2009(3) Supreme 585
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.
Rameshbhai Chandubhai Rathod — Appellant
versus
State of Gujarat — Respondent
Criminal Appeal No. 575 of 2007
Decided on : 27-04-2009

IMPORTANT POINT
Death sentence is not against public policy, but it should be imposed in rarest of rare cases.

Headnote:(a) Criminal Trial – Last seen aspect – 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 – However, courts should look for some corroboration. (Paras 6 and 7)

        (2005)3 SCC 114; (2006)10 SCC 172; (2005)12 SCC 438; 2008 (9) SCALE 652; 2008 (5) Supreme 577 – Relied upon.

        (b) Criminal Trial – Circumstantial evidence – The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts – In such a case, 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. (Para 12)

        AIR 1977 SC 1063; AIR 1956 SC 316; AIR 1983 SC 446; AIR 1985 SC 1224; AIR 1987 SC 350; AIR 1989 SC 1890; AIR 1954 SC 621; (1996) 10 SCC 193 – Relied upon.

        (c) Criminal Trial – Circumstantial evidence – Tests that should be satisfied by circumstantial evidence stated. (Para 15)

        AIR 1990 SC 79; AIR 1952 SC 343 – Relied upon.

        (d) Criminal Trial – Circumstantial evidence – Great care must be taken in evaluating circumstantial evidence – If the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted – 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. (Para 16)

        1992 Crl.LJ 1104 – Relied upon.

        (e) Criminal Trial – Circumstantial evidence – Onus to prove that the chain of circumstances is complete is on the prosecution – Infirmity or lacuna in prosecution cannot be cured by false defence or plea – Fully establishing the circumstances is the condition precedent. (Para 20)

        AIR 1984 SC 1622 – Relied upon.

        (f) Sentencing Policy – Punishment should be proportionate to the offence – Lesser punishment would render the justicing system of the country suspect. (Paras 23 and 24)

        (1987) 2 SCR 710; AIR 1991 SC 1463 – Relied upon.

        (g) Sentencing Procedure – Factors for determination stated and need for proportionality emphasised – Sentence should reflect conscience of the society – Social impact of the crime should also be considered while sentencing. (Paras 26 and 27)

        402 US 183: 28 L.D. 2d 711; (1994)4 SCC 353; (1994)2 SCC 220; (1996)2 SCC 175; (2005)2 SCC 712 – Relied upon.

        (h) Indian Penal Code, 1860 – Section 302 – Death penalty – 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 – Factors to be considered for imposing death penalty culled out. (Paras 33 to 37)

        (1980)2 SCC 684; (1983)3 SCC 470; (2002)5 SCC 234 – Relied upon.

        (i) Indian Penal Code, 1860 – Section 302 – Circumstantial evidence – Conviction and sentence – Unimpeachable circumstantial evidence forms the basis for conviction – It has nothing to do with the question of sentence. (Para 38)

       Facts of the case :

        1. 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.

        2. The accused was found guilty for offences punishable under Sections 363, 366, 376, 397 and 302 of 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.

        3. In view of the award of the death sentence reference was made under Section 366 of the Code of Criminal Procedure, 1973. The accused appellant had also preferred an appeal which was dismissed by the impugned judgment.

        4. Both the confirmation case and the criminal appeal were disposed of. Death sentence was confirmed while the criminal appeal was dismissed.

       Finding of the Court :

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

       Result : Appeal dismissed. Matter referred to larger bench.