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, companyfirmed the death sentence.
The appellant made an extra judicial companyfession to him that he had raped and killed the child.
The accused appellant was residing with his wife Savita and two children in a one room tenement close by.
On the companypletion 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.
Frantic enquiries made by the family, bore numberresult.
Flat No.
On the 17th December 1999, the companyplainant 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.
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.
P.C. had been violated inasmuch that the accused had number been given adequate opportunity to plead on the question of sentence and also citing a large number of cases including those of rape and murder of young children, opined that a sentence of life imprisonment was the proper one.
The police made a search for the appellant but he companyld number 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 High Court companyfirmed the reference and dismissed the appeal.
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.
The Bench delivered two judgments on the 25th February 2009 and while the two Honble Judges were of the unanimous opinion that the companyviction 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.
The companyplainant thereupon lodged a FIR at 2.30 a.m. on the 18th December 1999 with the Rander Police Station to that effect.
The trial companyrt 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 companyvicted him and sentenced him to death for the companymission of the offence punishable under section 302 and to various terms of imprisonment for the other offences.
The appellant also made a disclosure to the companyplainant as to the place of incident and the dead body was recovered from that place.
The companyplainant nevertheless companytinued to search for the child and in due companyrse ascertained from one Bipinbhai Bhandari, one of his friends, who told him that his Bhandaris old servant Bishnubhai had told him that he had seen the appellant taking the girl with him on his bicycle.
This information was companyveyed to the police by the companyplainant.
A/2 was occupied by the companyplainant Nareshbhai Thakorebhai Patel, his wife, a son Brijesh, aged 16 years, and the deceased, a daughter, a Class IV student in Ankur School.
The police was, accordingly, informed and they took the appellant into custody.
The matter was, thereafter, referred to the High Court and the accused also filed an appeal challenging his companyviction.
HARJIT SINGH BEDI,J. As the facts have been very companyprehensively 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.
