JUDGMENT

HARJIT SINGH BEDI, J.

1. As the facts have been very comprehensively given in the order of Pasayat, J., we will only refer to such facts as are necessary for the disposal of the reference which has been made to us. Suffice it to say that the accused-appellant Rameshbhai Chandubhai Rathod, aged about 28 years, was employed as a watchman in Sanudip Apartments, Rander Road, Surat City. Flat No.A/2 was occupied by the complainant Nareshbhai Thakorebhai Patel, his wife, a son Brijesh, aged 16 years, and the deceased, a daughter, a Class IV student in Ankur School. The accused-appellant was residing with his wife Savita and two children in a one room tenement close by.

2. On the 17th December 1999, the complainant and his wife went to Udhana at about 8.00 p.m. to attend a religious ceremony and on returning therefrom found that their daughter was missing. Frantic enquiries made by the family, bore no result. The complainant thereupon lodged a FIR at 2.30 a.m. on the 18th December 1999 with the Rander Police Station to that effect. The complainant nevertheless continued to search for the child and in due course ascertained from one Bipinbhai Bhandari, one of his friends, who told him that his (Bhandari's) old servant Bishnubhai had told him that he had seen the appellant taking the girl with him on his bicycle. This information was conveyed to the police by the complainant.

3. The police made a search for the appellant but he could not be immediately found but was ultimately located the next day i.e. on the 19th December 1999 by Chandravadan Patel who spotted him sitting in an open space near the vegetable market. The appellant made an extra judicial confession to him that he had raped and killed the child. The police was, accordingly, informed and they took the appellant into custody. The appellant also made a disclosure to the complainant as to the place of incident and the dead body was recovered from that place.

4. On the completion of the investigation, the accused was charged for offences punishable under Sections 363, 366,376,302 and 397 of the IPC and brought to trial. The trial court on a minute appreciation of the evidence which was exclusively circumstantial in nature, held that the case against the appellant had been proved beyond doubt, and accordingly convicted him and sentenced him to death for the commission of the offence punishable under section 302 and to various terms of imprisonment for the other offences. The matter was, thereafter, referred to the High Court and the accused also filed an appeal challenging his conviction. The High Court confirmed the reference and dismissed the appeal.

5. The High Court also found that the case against the accused fell within the category of the rarest of the rare cases, as envisaged in Bachan Singh vs. State of Punjab 1980 (2) SCC 684 and Machi Singh vs. State of Punjab 1993 (3) SCC 470 as followed and clarified in a series of other judgments subsequently, particularly, in Dhanonjoy Chatterjee vs. State of West Bengal 1994 (2) SCC 220 and observing that in the balance sheet of the aggravating and mitigating circumstances, the former were pre-dominant, confirmed the death sentence.

6. The judgment of the High Court was challenged by the appellant in this Court and after the grant of special leave, the matter was heard by a Division Bench. The Bench delivered two judgments on the 25th February 2009 and while the two Hon'ble Judges were of the unanimous opinion that the conviction of the appellant was to be maintained, a difference of opinion arose as to the sentence that was to be awarded with Pasayat,J. observing that the case fell within the category of the rarest of rare cases as the deceased was a helpless child of tender age and that the appellant, being a watchman in the building in which she was residing with her parents, was in a position of trust, and as the murder and rape was particularly brutal, the death sentence was the only adequate one.

7. Ganguli, J. howe