Supreme Court of India
SHANKAR KISANRAO KHADEversusSTATE OF MAHARASHTRA
- Citation
- 2013 INSC 281
- Decided
- 25 April 2013
- Disposal
- Disposed off
- Bench
- K S RADHAKRISHNAN
Holding
The conviction was upheld, but the death penalty was deemed unwarranted and was commuted to life imprisonment.
Summary
Shankar Kisanrao Khade, aged about 52, and his wife abducted an 11‑year‑old girl with moderate intellectual disability, repeatedly raped her and later strangulated her to death. The trial court and the High Court convicted Khade under IPC sections 302, 376, 366‑A, 363 r/w s.34 and sentenced him to death, while his wife received a term of imprisonment. On appeal, the Supreme Court held that the circumstantial evidence established guilt beyond reasonable doubt, but that the "rarest of rare" test for death penalty was not satisfied, noting that pendency of other criminal cases is not an aggravating factor and that the death sentence was therefore excessive. Consequently, the death sentence was commuted to rigorous imprisonment for life, with all other sentences to run consecutively, and the Court issued extensive directions on child protection and reporting obligations.
Issues considered
- The adequacy of the circumstantial evidence to prove guilt beyond reasonable doubt.
- Whether the offence qualifies as a 'rarest of rare' case warranting the death penalty under the Bachan Singh framework.
- Whether the pendency of other criminal cases against the accused constitutes an aggravating circumstance for death sentencing.
- The procedural lapse of not charging the accused under Section 377 IPC for sexual assault.
- The duty of the State and citizens to report sexual offences against children under constitutional and statutory provisions.
Legislation cited
- Code of Criminal Procedure, 1973s. 432
- Constitution of Indias. Article 15(3), s. Article 161, s. Article 39, s. Article 72
- Criminal Law (Amendment) Ordinance, 2013s. 375, s. 376, s. 376A, s. 376B, s. 376C, s. 376D
- Indian Evidence Act, 1872
- Indian Penal Code, 1860s. 201, s. 302, s. 34, s. 363, s. 366, s. 376
- Protection of Children from Sexual Offences Act, 2012s. 19, s. 20, s. 21
Subjects
death penaltyrarest of rare doctrinecircumstantial evidencechild sexual abuserape and murdersentencing jurisprudenceIPCCrPCProtection of Children from Sexual Offences Actreporting obligationconstitutional law
Judgment
[2013] 6 S.C.R. 949
SHANKAR KISANRAO KHADE A
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 362-363 of 2010)
APRIL 25, 2013
B
[K.S. RADHAKRISHNAN AND MADAN B. LOKUR, JJ.)
Penal Code, 1860 - ss. 302, 376, 366-A, 363 rlw. s. 34
- Rape and murder of minor and intellectually challenged girl
- By the accused aged about 52 years - Conviction and death c
sentence by courts below - Held: In view of the evidence of
· the case, guilt of the accused proved beyond reasonable
doubt - Conviction upheld - However, sentence of death
reduced to life imprisonment - All other sentences awarded,
directed to run consecutively. o
Evidence - Circumstantial evidence - Standard of proof
- Held: Circumstances relied upon, must be fully established
and chain of the circumstances must be complete, so as not
to leave any reasonable ground for a conclusion consistent
with the innocence of the accused. E
Crime Against Children - Sexual assault - On minor
children - Held: It is the duty of the State to protect the children
from all forms of sexual exploitation and abuse - It is a/so
duty of evel)' citizen to report the act of assault or abuse on a F
minor child to the police or Juvenile Justice Board - While
dealing with an issue of child abuse, approach of the court
should be child centric - Proper and sufficient safeguards a/so
need to be provided to persons who come forward to report
such incidents - Supreme Court as a parens patriae, gave G
certain directions to the State authorities, to educational
institutions, medical institutions and homes wherever children
are housed, to media, hotels, lodge, clubs, studios for
protection of children from sexual abuse - Further directed
949 H
950 SUPREME COURT REPORTS [2013] 6 S.C.R.
A that non-reporting of such crime would be a serious crime -
Constitution of India, 1950 - Articles 15(3) and 39 - United
Nations Convention on the Rights of Children - Articles 3(2)
and 34 - Protection of Children from Sexual Offences Act,
2012.
B Sentence/Sentencing:
Death sentence - Award of - Held: While awarding death
sentence, the courts should apply 'crime test', 'criminal test'
and 'rarest if rare test' - 'Crime test' has to be fully satisfied
c i.e. 100%, 'criminal test' i.e. no mitigating circumstance
favouring the accused should be 0% - 'Rarest of rare test'
should be 'society centric' and not Judge centric'.
Death sentence - Award of - By treating pendency of
criminal case against the accused as aggravating
D circumstance - Propriety of - Held: Pendency of criminal
cases as such is not aggravating circumstance unless the
accused is found guilty and convicted in those cases.
Death sentence - Rarest of Rare case principle -
E Applicability of - Held: Per Madan Lokur, J. - The principle
of rarest of rare cases is based on comparative evaluation of
the case with other cases - Due to lack of empirical data for
making two fold comparison, the application of the rarest of
rare principle becomes extremely delicate, thereby making
F the awarding of death sentence subjective or judge-centric -
While converting the death sentence to life imprisonment, the
judiciary applies the rarest of rare principle and the executive
applies the factors not known to the courts - Since the two
important organs of the State treat the life convicts with different
G standards, it is imperative that courts lay down jurisprudential
basis for awarding the death penalty - Death penalty and its
execution should not become matter of uncertainty - Law
Commission of India should examine whether death penalty
is a deterrent punishment or is retributive justice or seNes an
H
SHANKAR KISANRAO KHADE v. STATE OF 951
MAHARASHTRA
incapacitative goal - Code of Criminal Procedure, 1973 - s. A
432 - Constitution of India, 1950 - Arts. 72 and 161.
Death sentence - Commutation of - Need to record
reasons for commuting the sentence - Held: Per Madan
Lokur, J. - Normal rule is awarding life sentence and reasons B
are required to be recorded while awarding death sentence -
Therefore, courts not required to record reasons for
commuting death sentence to life imprisonment.
Appellant-accused No.1 and his wife accused No.2
were charged for the offences punishable u/ss. 363, 366- C
A, 376, 302, 201 r/w s. 34 IPC, for having, in furtherance
of their common intention, kidnapped a minor girl with
intellectual disability and then accused No.1 committed
rape on her several times and committed her murder by
strangulation. Trial court, relying on the witnesses and D
documentary evidence, convicted appellant-accused
No.1 u/ss. 302, 376, 366-A, 363 r/w. s.34 IPC and
sentenced him to death u/s. 302 IPC alongwith
punishment for other offences. Accused No.2 was
convicted for the offences punishable u/s.363A r/w. s. 34 E
IPC and was sentenced to 5 years RI. Accused No.1
preferred appeal before High Court, which was dismissed
and his death sentence was confirmed. Hence the
present appeal.
F
Dismissing the appeal, and converting the death
sentence to life imprisonment, the Court
HELD:
Per K.S. Radhakrishnan. J. G
1.1. The standard of proof required to convict a
person on circumstantial evidence is that the
circumstances relied upon in support of the conviction
must be fully established and the chain of evidence
H
952 SUPREME COURT REPORTS (2013] 6 S.C.R.
A furnished by those circumstances must be complete so
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused. In view of
t~!I evidence, it was the accused who had committed the
crime~ The trial court as. well as the High Court have
s correctly appreciated the evidence and documents
adduced and fo\Jnd that the guilt of the accused is
proved beyond reasonable doubt. [Para 18] [981-C-D]
1.2. Facts in the present case indicate that the
deceased was aged about 11 years on the date of the
C incident. PW 10, PW 11, PW 12 and PW 13 stated how the
girl was taken from the house of PW 13 and travelled to
difference places. Another clinching evidence which
conclusively proved that the girl was in the company of
the accused and his wife, was the evidence of PW 8. He
D deposed that the accused along with his wife and a minor
girl came to his house. The accused and his wife requested
that they be permitted to stay during night which PW 8
agreed. During night PW 8 heard the girl weeping and
became curious and when it was found that the accused
E was having sexual intercourse with the minor girl. PW 8
asked the accused and his wife to leave the place.
Accused then took away the girl on his bicycle leaving
his wife in the house of PW8. The above facts clearly
establish that the girl was last seen with the accused.
F Evidence of PW8 discloses that the girl and the accused
were seen together at a point of time in proximity with the
time and date of the commission of the offence. Last seen
theory was successfully established by the prosecution
beyond any reasonable doubt. Evidence of PW 8 is very
G crucial and there is nothing to show that he had any enmity
or grudge against the accused so as to implicate him. PW8
had no difficulty in identifying the accused since he knew
them earlier. [Paras 12, 13, 14 and 15] [978-B, D, G-H; 979-
B-E, H; 980-A-B]
H
SHANKAR KISANRAO KHADE v. STATE OF 953
MAHARASHTRA
1.3. Medical evidence clearly indicates that the cause A
of the death was asphyxia due to strangulation and
though there was clear evidence of carnal intercourse,
the accused was not charged for that offence. On a close
scrutiny of the evidence, it can safely be concluded that
the deceased girl was subjected to the acts of rape for B
more than one occasion. [Para 17] [980-H; 981-A-B]
2.1. The tests that the courts have to apply, while
awarding death sentence, are "crime tesf', "criminal tesf'
and the 'Rarest of Rare Test'(R-R Test) and not "balancing C
tesf'. To award death sentence, the "crime test" has to
be fully satisfied, that is 100% and "criminal test" 0%, that
is no Mitigating Circumstance favouring the accused. If
there is any circumstance favouring the accused, like lack
of intention to commit the crime, possibility of
reformation, young age of the accused, not a menace to D
the society, no previous track record etc., the "criminal
test" may favour the accused to avoid the capital
punishment. Even, if both the tests are satisfied that is
the aggravating circumstances to the fullest extent and
no mitigating circumstances favouring the accused, still E
the courts have to apply finally the R-R Test. R-R Test
depends upon the perception of the society that is
"society centric" and not "Judge centric" that is, whether
the society will approve the awarding of death sentence
to certain types of crimes or not. While applying that test, F
the Court has to look into variety of factors like society's
abhorrence, extreme indignation and antipathy to certain
types of crimes like sexual assault and murder of minor
girls intellectually challenged, suffering from physical
disability, old and infirm women with those disabilities G
etc .. Courts award death sentence since situation
demands so, due to constitutional compulsion, reflected
by the will of the people and not the will of the judges.
[Para 28] [997-C-H]
H
954 SUPREME COURT REPORTS [2013] 6 S.C.R.
A Sangeet and Ors. vs. State of Haryana (2013) 2 SCC
452: 2012 (13) SCR 85 - relied on.
2.2. in the present case, so far as enormity of the
crime and execution thereof i.e. 'Crime Test' is concerned,
the victim was aged 11 years, totally innocent,
8
defenceless and having moderate intellectual disability.
She was physically handicapped, and was having
moderate mental retardation. Evidence of PW 10, PW 12
and PW13 also corroborates the fact that she was a minor
C girl with moderate intellectual disability, an aggravating
circumstance which goes against the accused: In view
of the ghastly manner in which the crime was executed,
the action of accused, not only was inhuman but barbaric.
Ruthless crime of repeated actions of rape followed by
murder of a young minor girl who was having moderate
D intellectual disability, shocks not only the judicial
conscience, but the conscience of the society. Thus the
crime test has been satisfied fully against the accused.
[Paras 29 to 32] [998-A-D, E, F-G]
E 2.3. In the facts and circumstances of the case,
criminal test has been fully satisfied against the accused.
The accused was aged 52 years at the time of incident, a
fatherly figure for the minor child. The accused was an
able bodied person and was the father of two children.
F The accused repeatedly raped the girl for few days,
ultimately strangulated her to death. Intellectually
challenged minor girls will not be safe in our society if the
accused is not given adequate punishment. Considering
the age of the accused, a middle ager of 52 years,
G reformation or rehabilitation is practically ruled out. The
only mitigating circumstance stated was that the accused
is having two sons aged 26 and 27 years and are
dependent on him, which is not a mitigating
circumstance and the "criminal test" is fully satisfied
H
SHANKAR KISANRAO KHADE v. STATE OF 955
MAHARASHTRA
against the accused. Both the crime test and criminal test A
are, therefore, independently satisfied against the
accused. [Para 33] [998-H; 999-A-D]
2.5. Even though all the tests namely, 'crime test',
'criminal test' and the 'R-R Test' have been satisfied in the B
present case, the extreme sentence of Death penalty is not
warranted. One of the factors which influenced the High
Court to award death sentence was the previous track
record of the accused. The High Court was of the view that
the pendency of criminal cases against the accused was C
a circumstance against the ae.cu.sed. The mere pendency
of few criminal cases as su~h is ilot an aggravating
circumstan~: to· be taken note of while awarding death
sentence unless the accused is found guilty and convicted
in those cases High Court was, therefore, in error in
holding thatthose were relevant factors to be considered D
in awarding appropriate sentence. [Paras 35, 36 and 38]
[999-G; 1ooocc, D; 1001-B]
Mohd. Farooq Abdul Gafur vs. State of Maharashtra
(2010) 14 sec 641: (2009) 12 SCR 1093 - relied on. E
Gurmugh Singh vs. State of Haryana (2009) 15 SCC
635: 2009 (13) SCR 548 - referred to
2.6. President of India on 3rd February, 2013
promulgated an ordinance titled "The Criminal Law F
(Amendment) Ordinance, 2013, further to amend the CPC,
1973, Indian Evidence Act, 1872 and the Indian Penal
Code, 1860. By the ordinance, ss. 375, 376, 376-A, 376-B,
376-C and 376-D IPC have been substituted by new
Sections. The word "rape" has been replaced by the word G
"sexual assault". Section 375 has also clarified that lack
of physical resistance is immaterial for constituting an
offence. A new s.376-A has been added a person, who
commits an offence punishable under sub-section (1)
and sub-section (2) of s. 376 and causes death shall be H
956 SUPREME COURT REPORTS [2013] 6 S.C.R.
A punishable with rigorous imprisonment for a term which
shall not be less than twenty years but which my extend
to imprisonment for life, which shall mean the remainder
of that person's natural life or with death. [Para 53) [1006-
D-G]
8 2.7. Thus, considering the entire facts and
circumstances of the case, the death sentence awarded
to the accused is converted to rigorous imprisonment for
life and all the sentences awarded, are directed run
consecutively. [Para 54) [1007-B]
c
Bachan Singh VS. State of Punjab (1980) 2 sec 684;
Machhi Singh and' Ors. vs. State of Punjab (1983) 3 SCC
470: 1983 (3) SCR 413; Nathu Garam vs. State of Uttar
Pradesh (1979) 3 SCC 366; Jumman Khan vs. State of Uttar
D Pradesh (1991) 1 SCC 752: 1990 (3) Suppl. SCR 398;
Dhananjoy Chatterjee vs. State of West Bengal (1994) 2 SCC
220: 1994 (1) SCR 37; Laxman Naik vs. State of Orissa
(1994) 3 SCC 381: 1994 (2) SCR 94; Kamta Tiwari vs.
State of Madhya Pradesh (1996) 6 SCC 250: 1996 (5)
E Suppl. SCR 507; Molai and Anr. vs. State of MP. (1999)
9 sec 581: 1999 (4) Suppl. SCR 104; Bantu VS. State of
Madhya Pradesh (2001) 9 SCC 615: 2001 (4) Suppl.
SCR 298; Devender Pal Singh vs. Government of NCT of
Delhi (2002) 5 SCC 234: 2002 (2) SCR 767; Shivaji @
Dadya Shankar A/hat vs. The State of Maharashtra (2008) 15
F SCC 269: 2008 (13) SCR 81; Mohd. Mannan@ Abdul
Mannan vs. State of Bihar (2011) 5 SCC 317: 2011 (5)
SCR 518; Rajendra Pralhadrao Wasnik vs. State of
Maharashtra (2012) 4 SCC 37: 2012 (2) SCR 225; Kumudi
Lal vs. State of U.P. (1994) 4 SCC 108; Raju vs. State of
G Haryana (2001) 9 SCC 50: 2001 (3) SCR 409; Bantu alias
Naresh Giri vs. State of M.P. (2001) 9 SCC 615: 2001 (4)
Suppl. SCR 298; State of Maharashtra vs. Suresh (2000) 1
SCC 471: 1999 (5) Suppl. SCR 215; Amrit Singh vs. State
of Punjab AIR 2007 SC 132: 2006 (8) Suppl. SCR 889;
H Rameshbhai Chandubhai Rathod vs. The State of Gujarat
SHANKAR KISANRAO KHADE v. STATE OF 957
MAHARASHTRA
(2011) 2 SCC 764: 2011 (1) SCR 829; Surendra Pal A
Shivbalak vs. State of Gujarat (2005) 3 SCC 127: 2004 (4)
Suppl. SCR 464; Amit vs. State of Maharashtra (2003) 8
SCC 93: 2003 (2) Suppl. SCR 285; Santosh Kumar
Satishbhushan Bariyar vs. State of Maharashtra (2009) 6
SCC 498: 2009 (9) SCR 90 - referred to. B
3. The police after booking the accused for offence
u/s. 377 IPC failed to charge sheet him, in spite of the fact
the medical evidence had clearly established the
commission of carnal intercourse on a minor girl with C
moderate intellectual disability. PW3, the doctor who
conducted the post mortem, had clearly spelt out the facts
of sodomy in his report as well as in his deposition.
Prosecuting agency also failed in his duty to point out the
same to the court that a case had been made out u/s. 377
IPC. [Para 39) [1001-C-D] D
State of Uttar Pradesh vs. Satish (2005) 3 SCC 114:
2005 (2) SCR 1132; Ramreddy Rajesh Khanna Reddy and
Anr. v. State of Andhara Pradesh (2006) 10 SCC 172: 2006
(3) SCR 348; Kusuma Ankama Rao v. State of Andhra E
Pradesh (2008) 13 SCC 257: 2008 (10) SCR 89 - relied on.
4.1. Non-reporting of sexual assault on minor children
is a disturbing trend in our society, which has happened
in the present case as well. PW-8 though was witness to
F
the crime he did not report the said fact to the police,
possibly due to the reason that there was no clear cut
legislative provision casting an obligation on him to
report to the J.J. Board or to the S.J.P.U. dealing with
sexual offences towards children after having witnessed
the incident. A duty cast on every citizen of country, if they G
witness or come to know any act of sexual assault or
abuse on a minor child to report the same to the police
or to the J.J. Board. They cannot keep mum so as to
screen the culprit from legal punishment. [Paras 40 and
41) [1001-F, H; 1002-A-B] H
958 SUPREME COURT REPORTS [2013) 6 S.C.R.
A 4.2. Article 15(3) of the Constitution confers upon the
State, powers to make special provision for children.
Article 39 inter alia provides that the State shall, in
particular, direct its policy towards securing that the
tender age of children are not abused and their childhood
B and youth are protected against exploitation and they are
given facilities to develop in a healthy man ner and in
conditions of freedom and dignity. [Para 42] [1002-C-D]
4.3. The United Nations Convention on the Rights of
C Children, rectified by India, requires the State Parties to
undertake all appropriate national, bilateral and
multilateral measures to prevent the inducement or
coercion of child to engage in any unlawful sexual
activity, the exploitative use of children in prostitution or
other unlawful sexual practices etc. Articles 3(2) and 34
0
of the Convention have placed a specific duty on the
State to protect the child from all forms of sexual
exploitation and abuse. [Para 43] [1002-D-F]
4.4. Parliament passed the Act titled The Protection
E of Children from Sexual Offences Act, 2012, which
provides for reporting of sexual offences and the
punishment for failure to report or record punishment for
filing false complaint and/or false information. The Act
also provides for a Justice Delivery System for child
F victims and few other provisions to safeguard the interest
of children. [Para 48] [1003-G-H]
4.5. In large numbers of cases, children are abused
by persons known to them or who have influence over
G them. Criminal Courts in this country are galore with
cases where children are abused by adults addicted to
alcohol, drugs, depression, marital discord etc. Preventive
aspects have seldom been given importance or taken
care of. Penal laws focus more on situations after
commission of offences like violence, abuse, exploitation
H
SHANKAR KISANRAO KHADE v. STATE OF 959
MAHARASHTRA
of the children. Witnesses of many such heinous crimes A
often keep mum taking shelter on factors like social
stigma, community pressure, and difficulties of
navigating the criminal justice system, total dependency
on perpetrator emotionally and economically and so on.
Sexual abuse can be in any form like sexually molesting B
or assaulting a child or allowing a child to be sexually
molested or assaulted or encouraging, inducing or
forcing the child to be used for the sexual gratification of
another person, using a child or deliberately exposing a
child to sexual activities or pornography or procuring or C
allowing a child to be procured for commercial
exploitation and so on. [Para 50] [1004-H; 1005-A-C, D-E]
4.6. Whenever the Court deals with an issue of child
abuse, it must apply the best interest child standard,
D
since best interest of the child is paramount and not the
interest of perpetrator of the crime. The approach must
be child centric. Complaints received from any quarter,
of course, have to be kept confidential without casting
any stigma on the child and the family members. But, if
the tormentor is the family member himself, he shall not E
go scot free. Proper and sufficient safeguards also have
to be given to the persons who come forward to report
such incidents to the police or to the Juvenile Justice
Board. [Para 51] [1005-F-H]
F
4.7. The conduct of the police for not registering a
case u/s. 377 IPC against the accused, the agony
undergone by a child of 11 years with moderate
intellectual disability, non-reporting of offence of rape
committed on her, after having witnessed the incident G
either to the local police or to the J.J. Board, compels the
Court to give certain directions for compliance in future
which are necessary to protect the children from such
sexual abuses. This Court as parens patriae has a duty
to do so because Court has guardianship ove~ minor H
960 SUPREME COURT REPORTS [2013] 6 S.C.R.
A children, especially with regard to the children having
intellectual disability, since they are suffering from legal
disability. Prompt reporting of the crime in this case could
have perhaps, saved the life of a minor child of moderate
intellectual disability. [Para 52] [1006-A-C]
B
Mohd. Chaman vs. State (NCT of Delhi) (2001) 2 SCC
28; Surendra Pal Shivbalakpal vs. State of Gujarat (2005) 3
SCC 127: 2004 (4) Suppl. SCR 464; State of Maharashtra
vs. Mansingh (2005) 3 SCC 131; State of Rajasthan vs. Kashi
C Ram (2006) 12 SCC 254: 2006 (8) Suppl. SCR 501; Sushi/
Murmu vs. State of Jharkhand (2004) 2 SC 338: 2003 (6)
Suppl. SCR 702; Shivu and Anr. vs. Registrar General,
High Court of Kamataka and Anr. (2007) 4 SCC 713: 2007
(2) SCR 555; B.A. Umesh vs. Registrar General, High Court
of Karnataka (2011) 3 SCC 85: 2011 (2) SCR 367; Mohd.
D Mannan Alias Abdul Mannan vs. State of Bihar (2011) 5 SCC
317: 2011 (5) SCR 518; Sebastian vs. State of Kera/a (2010)
1 SCC 58; Aloke Nath Dutta and Ors. vs. State of West
Bengal (2007) 12 SCC 230: 2006 (10) Suppl.
SCR 662; Swamy Shraddananda Alias Murali Manohar
E Mishra vs. State of Karnataka (2007) 12 SCC 288: 2007 (7)
SCR 616 - referred to.
Per Madan B. Lokur, J. (Concurring)
1. In *Swamy Shraddananda (2) case this Court noted
F that the expression "the rarest of rare cases" in **Bachan
Singh case indicated a relative category based on a
comparison with other cases. The Court also expressed
the view that there is hardly any field available for
comparison. In other words, the Court highlighted the
G difficulty in the practical application of the "rarest of rare"
principle since there is a lack of empirical data for making
the two-fold comparison. It is this inability to make a
comparative evaluation and clarity on the issue due to a
lack of information and any detailed study that the
H application of the rarest of rare principle becomes
SHANKAR KISANRAO KHADE v. STATE OF 961
MAHARASHTRA
extremely delicate thereby making the awarding of a A
death sentence subjective or judge-centric. [Paras 2 and
3) (1009-G; 1010-A-D]
**Bachan Singh vs. State of Punjab (1980) 2 SCC 684
- followed.
B
*Shraddananda (2) vs. State of Karnataka (2008) 13
SCC 767: 2008 (11) SCR 93; Sangeet and Ors. vs. State
of Haryana (2013) 2 SCC 452: 2012 (13) SCR 85 - referred
to.
2. The Constitution Bench in Bachan Singh case
c
concluded that normally the punishment for murder is life
imprisonment and a death penalty may be imposed only
if there are special reasons for doing so. In other words,
special reasons are required to be recorded not for
awarding life imprisonment but for awarding death D
sentence. It was further held that the normal rule is of
awarding life sentence but death sentence may be
awarded only if the alternative of life sentence is
unquestionably foreclosed. Therefore, this Court is not
required to record reasons for commuting the death E
sentence to one of life imprisonment - it is only required
to record reasons for either confirming the death
sentence or awarding it. [Paras 5 to 7) (1011-8-C, E, H;
1012-A]
F
Bachan Singh vs. State of Punjab (1980) 2 SCC 684 -
followed.
3.1. There are several reasons, cumulatively taken,
for converting the death penalty to that of imprisonment
for life. However, some of the factors that have had an G
influence in commutation include (1) the young age of the
accused; (2) the possibility of reforming and rehabilitating
the accused; (3) the accused had no prior criminal
record; (4) the accused was not likely to be a menace or
threat or danger to society or the community. A few other H
962 SUPREME COURT REPORTS [2013] 6 S.C.R.
A reasons such as the accused having been acquitted by
one of the Courts; the crime was not premeditated; the
case was one of circumstantial evidence. Commutation
has also been ordered since there was apparently no
'exceptional' feature warranting a death penalty and
B because the Trial Court had awarded life sentence but the
High Court enhanced it to death. [Para 29] [1024-H; 1025-
A-F]
Nirmal Singh vs. State of Haryana (1999) 3 SCC 670:
1999 (2) SCR 1; Kumudi Lal vs. State of Uttar Pradesh (1999)
C 4 SCC 108; Akhtar vs. State of Uttar Pradesh (1999) 6 SCC
60; State of Maharashtra vs. Suresh (2000) 1 SCC 471;
Mohd. Chaman vs. State (NCT of Delhi) (2001) 2 SCC 28;
Raju vs. State of Haryana (2001) 9 SCC 50: 2001
(3) SCR 409; State of Maharashtra vs. Bharat Fakira Dhiwar
D (2002) 1 SCC 622: 2001 (5) Suppl. SCR 12; Amit vs. State
of Maharashtra (2003) 8 SCC 93: 2003 (2) Suppl.
SCR 285; Surendra Pal Shivbalakpal vs. State of Gujarat
(2005) 3 SCC 127: 2004 (4) Suppl. SCR 464; State of
Maharashtra vs. Mansingh (2005) 3 SCC 131; Rahul vs.
E State of Maharashtra (2005) 10 SCC 322; Amrit Singh vs.
State of Punjab (2006) 12 SCC 79: 2006 (8) Suppl.
SCR 889; Bishnu Prasad Sinha vs. State of Assam (2007)
11 SCC 467: 2007 (1) SCR 916; Santosh Kumar Singh vs.
State (2010) 9 SCC 747: 2010 (13) SCR 901; Rameshbhai
F Chandubhai Rathod (2) vs. State of Gujarat (2011) 2 SCC
764: 2011 (1) SCR 829; Haresh Mohandas Rajput vs. State
of Maharashtra (2011) 12 SCC 56: 2011 (14) SCR 921; Amit
vs. State of Uttar Pradesh (2012) 4 SCC 107: 2012 (1)
SCR 1009 - referred to.
G 3.2. The principal reasons for confirming the death
penalty include (1) the cruel, diabolic, brutal, depraved
and gruesome nature of the crime; (2) the crime results
in public abhorrence, shocks the judicial conscience or
the conscience of society or the community; (3) the
H reform or rehabilitation of the convict is not likely or that
SHANKAR KISANRAO KHADE v. STATE OF 963
MAHARASHTRA
he would be a menace to society; (4) the victims were A
defenceless; (5) the crime was either unprovoked or that
it was premeditated. The antecedents or the prior history
of the convict was taken into consideration. [Para 45]
[1037-0-H; 1038-A]
B
Jumman Khan vs. State of Uttar Pradesh (1991) 1 SCC
752: 1990 (3) Suppl. SCR 398; Dhananjoy Chatterjee vs.
State of West Bengal (1994) 2 SCC 220:1994 (1) SCR 37;
Laxman Naik vs. State of Orissa (1994) 3 SCC 381: 1994 (2)
SCR 94; Kamta Tiwari vs. State of Madhya Pradesh (1996) C
6 SCC 250: 1996 (5) Suppl. SCR 507; Nirmal Singh vs.
State of Haryana (1999) 3 SCC 670: 1999 (2) SCR 1; Jai
Kumar vs. State of Madhya Pradesh (1999) 5 SCC 1: 1999
(3) SCR 426; Molai & Anr. vs. State of M.P. (1999) 9 SCC
581: 1999 (4) Suppl. SCR 104; State of Uttar Pradesh v.
Satish (2005) 3 SCC 114: 2005 (2) SCR 1132; Shivu and D
Anr. vs. Registrar General, High Court of Karnataka (2007) 4
SCC 713: 2007 (2) SCR 555; Bantu vs. State of Uttar
Pradesh (2008) 11 SCC 113: 2008 (11) SCR 184; Shivaji
vs. State of Maharashtra (2008) 15 SCC 269: 2008 (13)
SCR 81; Ankush Maruti Shinde vs. State of Maharashtra E
(2009) 6 SCC 667: 2009 (7) SCR 182; B.A. Umesh vs.
Registrar General, High Court of Karnataka (2011) 3 SCC 85:
2011 (2) SCR 367; Mohd. Mannan vs. State of Bihar (2011)
5 SCC 317: 2011 (5) SCR 518; Rajendra Pralhadrao
Wasnik vs. State of Maharashtra (2012) 4 SCC 37: 2012 (2) F
SCR 225; State of Maharashtra v. Bharat Fakira Dhiwar
(2002) 1 SCC 622: 2001 (5) Suppl. SCR 12 - referred to.
3.3. However, there are cases where the factors taken
into consideration for commuting the death penalty were G
given a go-bye in cases where the death penalty was
confirmed. The young age of the accused was not taken
into consideration or held irrelevant. The possibility of
reformation or rehabilitation was ruled out, without any
expert evidence. Even though the crime was not
H
964 SUPREME COURT REPORTS (2013) 6 S.C.R.
A premeditated, the death penalty was confirmed.
Circumstantial evidence was held not to be a 'mitigating'
factor. [Para 46] [1038-B-F]
Dhananjoy Chatterjee vs. State of West Bengal (1994)
2 SCC 220: 1994 (1) SCR 37; Rameshbhai Chandubhai
B Rathod (2) vs. State of Gujarat (2011) 2 SCC 764: 2011 (1)
SCR 829; Amit vs. State of Maharashft-a (2003) 8 SCC 93:
2003 (2) Suppl. SCR 285; Rahul vs. State of Maharashtra
(2005) 10 SCC 322; Amrit Singh vs. State of Punjab (2006)
12 SCC 79: 2006 (8) Suppl. SCR 889; Santosh Kumar
C Satishbhushan Bariyar vs. State of Maharashtra (2009) 6
SCC 498: 2009 (9) SCR 90; Amit vs. State of Uttar Pradesh
(2012) 4 SCC 107: 2012 (1) SCR 1009; Jai Kumar vs. State
of Madhya Pradesh (1999) 5 SCC 1: 1999 (3) SCR
426; B.A Umesh vs. Registrar General, High Court of
D Karnataka (2011) 3 SCC 85: 2011 (2) SCR 367; Mohd.
Mannan Alias Abdul Mannan vs. State of Bihar (2011) 5 SCC
317: 2011 (5) SCR 518;Nirmal Singh vs. State of Haryana
(1999) 3 SCC 670: 1999 (2) SCR 1; Mohd.Chaman vs. State
(NCT of Delhi) (2001) 2 SCC 28; Raju vs. State of Haryana
E (2001) 9 SCC 50: 2001 (3) SCR 409; Bantu alias Naresh Giri
vs. State of M.P. (2001) 9 SCC 615: 2001 (4) Suppl. SCR
298; Surendra Pal Shivbalak vs. State of Gujarat (2005) 3
SCC 127: 2004 (4) Suppl. SCR 464; State of Uttar Pradesh
vs. Satish (2005) 3 SCC 114: 2005 (2) SCR 1132; State of
F Tamil Nadu vs. Suresh (1998) 2 SCC 372: 1997 (6) Suppl.
SCR 203; Ankush Maruti Shinde vs. State of Maharashtra
(2009) 6 SCC 667: 2009 (7) SCR 182 - referred to.
4. Bachan Singh case is more than clear that the
crime is important (cruel, diabolic, brutal, depraved and
G gruesome) but the criminal is also important and this, has
been overlooked in several cases in the past. It is this
individualized sentencing that has made this Court wary,
in the recent past, of imposing death penalty and instead
substituting it for fixed term sentences exceeding 14
H years (the term of 14 years or 20 years being erroneously
SHANKAR KISANRAO KHADE v. STATE OF 965
MAHARASHTRA
equated with life imprisonment) or awarding consecutive A
sentences. [Para 47] [1038-G-H; 1039-A-B]
5. There have been several cases where life sentence
has been awarded by this Court with a minimum fixed
term of incarceration. This Court has been seriously
reconsidering, though not in a systemic manner, 8
awarding life sentence as an alternative to death penalty
by applying (though not necessarily mentioning) the
"unquestionably foreclosed" formula laid down in
Bachan Singh case. The issue as regards the
interpretation of "life sentence" - whether it means C
imprisonment for only 14 years or 20 years or it mean for
the life of the convict has been laid to rest. It has been
unequivocally laid down that a sentence of imprisonment
for life means imprisonment for the rest of the normal life
of the convict. The convict is not entitled to any remission D
in a case of sentence of life imprisonment, as is
commonly believed. However, if the convict is sought to
be released before the expiry of his life, it can only be by
following the procedure laid down in Section 432 of the
Code of Criminal Procedure or by the Governor E
exercising power under Article 161 of the Constitution or
by the President exercising power under Article 72 of the
Constitution. There is no other method or procedure.
[Paras 48, 65 and 66] [1039-C; 1048-C-G]
Aloke Nath Dutta vs. State of West Bengal (2007) 12 F
SCC 230: 2006 (10) Suppl. SCR 662; Subhash Chander
vs. Krishan Lal (2001) 4 SCC 458: 2001 (2) SCR 864; Shri
Bhagwan vs. State of Rajasthan (2001) 6 SCC 296: 2001 (3)
SCR 656; Prakash Dhawal Khairnar (Patil) vs. State of
Maharashtra (2002) 2 SCC 35: 2001 (5) Suppl. SCR 612; G
Ram Anup Singh vs. State of Bihar (2002) 6 SCC 686: 2002
(1) SCR 586; Mohd. Munna vs. Union of India (2005) 7 SCC
417: 2005 (3) Suppl. SCR 233; Jayawant Dattatraya
Suryarao vs. State of Maharashtra (2001) 10 SCC 109: 2001
(5) Suppl. SCR 54; Nazir Khan vs. State of Delhi (2003) 8 H
966 SUPREME COURT REPORTS [2013] 6 S.C.R.
A SCC 461: 2003 (2) Suppl. SCR 884; Sebastian vs. State
of Kera/a (2010) 1 SCC 58; Ramnaresh vs. State of
Chhattisgarh (2012) 4 SCC 257: 2012 (3) SCR 630; Neel
Kumar vs. State of Haryana (2012) 5 SCC 766: 2012 (5)
SCR 696; Sandeep vs. State of UP. (2012) 6 SCC 107:
s 2012 (5) SCR 952; Brajendrasingh vs. State of Madhya
Pradesh (2012) 4 SCC 289: 2012 (3) SCR 599; State of
Uttar Pradesh vs. Sanjay Kumar (2012) 8 SCC 537: 2012 (7)
SCR 359; Gurvail Singh vs. State of Punjab (2013) 2 SCC
713; Ravindra Trimbak Chouthmal vs. State of Maharashtra
C (1996) 4 SCC 148: 1996 (2) SCR 1009; Ronny vs. State of
Maharashtra (1998) 3 SCC 625: 1998 (2) SCR 162;
Sandesh VS. State of Maharashtra (2013) 2 sec 479;
Sanaul/ah Khan vs. State of Bihar MANU/SC/0165/2013 -
referred to.
D 6. The two important organs of the State that is the
Judiciary and the Executive are treating the life of
convicts convicted of an offence punishable with death
with different standards. While the standard applied by
the Judiciary is that of the rarest of rare principle (however
E subjective or judge-centric it may be in its application) the
standard applied by the Executive in granting
commutation is not known. Therefore, it is imperative, in
this regard, that the Courts lay down a jurisprudential
basis for awarding the death penalty and when the
F alternative is unquestionably foreclosed so that the
prevailing uncertainty is avoided. Death penalty and its
execution should not become a matter of uncertainty nor
should converting a death sentence into imprisonment
for life become a matter of chance. The Law Commission
G of India can resolve the issue by examining whether
death penalty is a deterrent punishment or is retributive
justice or serves an incapacitative goal. It could happen
(and might well have happened) that in a given case the
Sessions Judge, the High Court and the Supreme Court
H are unanimous in their view in awarding the death penalty
SHANKAR KISANRAO KHADE v. STATE OF 967
MAHARASHTRA
to a convict, any other option being unquestionably A
foreclosed, but the Executive has taken a diametrically
opposite opinion and has commuted the death penalty.
This may also need to be considered by the Law
Commission of India. [Paras 71 and 72) [1052-E-H; 1053-
A-C] B
Case Law Reference:
In the Judgment of K.S. Radhakrishnan, J.:
(2001) 2 sec 28 referred to Para 9 c
2004 (4) Suppl. SCR 464 referred to Para 9
(2005) 3 SCC 131 referred to Para 9
2006 (8) Suppl. SCR 501 referred to Para 9
D
2009 (12) SCR 1093 referred to Para 10
2003 (6) Suppl. SCR 702 referred to Para 1O
2007 (2) SCR 555 referred to Para 10
2011 (2) SCR 367 referred to Para 10 E
2011 (5) SCR 518 referred to Para 10
(2010) 1 sec 58 referred to Para 10
2006 (10) Suppl. SCR 662 referred to Para 10 F
2007 (7) SCR 616 referred to Para 10
2005 (2) SCR 1132 relied on Para 14
2006 (3) SCR 348 relied on Para 14
G
2008 (10) SCR 89 relied on Para 14
(1980) 2 sec 684 referred to Para 20
1983 (3) SCR 413 referred to Para 21
H
968 SUPREME COURT REPORTS [2013] 6 S.C.R.
A (1979) 3 sec 366 referred to Para 22(1)
1990 (3) Suppl. SCR 398 referred to Para 22(2)
1994 (1) SCR 37 referred to Para 22(3)
1994 (2) SCR 94 referred to Para 22(4)
B
1996 (5) Suppl. SCR 507 referred to Para 22(5)
1999 (4) Suppl. SCR 104 referred to Para 22(6)
2008 (11) SCR 184 referred to Para 22(7)
c 2008 (13) SCR 81 referred to Para 22(8)
2012 (2) SCR 225 referred to Para 22(9)
2011 (5) SCR 518 referred to Para 22(10)
o 1994) 4 sec 108 referred to Para 23(1)
2001 (3) SCR 409 referred to Para 23(2)
2001 (4) Suppl. SCR 298 referred to Para 23(3)
E 1999 (5) Suppl. SCR 215 referred to Para 23(4)
2006 (8) Suppl. SCR 889 referred to Para 23(5)
2011 (1) SCR 829 referred to Para 23(6)
2004 (4) Suppl. SCR 464 referred to Para 23(7)
F
2003 (2) Suppl. SCR 285 referred to Para 23(8)
2009 (9) SCR 90 referred to Para 26
•
2012 (13) SCR 85 relied on Para 27
G 2009 (13) SCR 548 referred to Para 37
2009 (12) SCR 1093 relied on Para 37
In the Judgment of Madan B. Lokur, J.:
H 2008 (11) SCR 93 referred to Para 2, 48
SHANKAR KISANRAO KHADE v. STATE OF 969
MAHARASHTRA
(1980) 2 sec 684 followed Para 2, 5 A
2012 (13) SCR 85 referred to Para 2
1999 (2) SCR 1 referred to Para 10, 29
(1999) 4 sec 108 referred to Para 11 B
(1999) 6 sec 60 referred to Para 12
1999 (5) Suppl. SCR 215 referred to Para 13
(2001) 2 sec 2s referred to Para 14
c
2001 (3) SCR 409 referred to Para 15
2001 (4) Suppl. SCR 298 referred to Para 16, 29
2001 (5) Suppl. SCR 12 referred to Para 17
2003 (2) Suppl. SCR285 referred to Para 18, 29 D
2004 (4) Suppl. SCR464 referred to Para 19
2005 (3) sec 131 referred to Para 20
(2005) 10 sec 322 referred to Para 21, 29 E
2006 (8) Suppl. SCR 889 referred to Para 22, 29
2007 (1) SCR916 referred to Para 23
2010 (13) SCR 901 referred to Para 24
F
2011 (1) SCR 829 referred to Para 25, 29
2011 (14) SCR 921 referred to Para 27, 29
2012 (1) SCR 1009 referred to Para 28
G
1997 (6) Suppl. SCR 203 referred to Para 29
1994 (1) SCR 37 referred to Para 29
2009 (9) SCR 90 referred to Para 29
1999 (3) SCR 426 referred to Para 29 H
970 SUPREME COURT REPORTS (2013] 6 S.C.R.
A 2011 (2) SCR 367 referred to Para 29
2011 (5) SCR 518 referred to Para 29
(2001) 2 sec 28 referred to Para 29
2001 (3) SCR 409 referred to Para 29
B
2004 (4) Suppl. SCR 464 referred to Para 29
2005 (2) SCR 1132 referred to Para 29
1997 (6) Suppl. SCR 203 referred to Para 29
c
2009 (7) SCR 182 referred to Para 29
2001 (5) Suppl. SCR 12 referred to Para 29
1990 (3) Suppl. SCR 398 referred to Para 30
D 1994 (1) SCR 37 referred to Para 31
1994 (2) SCR 94 referred to Para 32
1996 (5) Suppl. SCR 507 referred to Para 33
E 1999 (2) SCR 1 referred to Para 34
1999 (3) SCR 426 referred to Para 35
1999 (4) Suppl. SCR 104 referred to Para 36
2005 (2) SCR 1132 referred to Para 37
F
2007 (2) SCR555 referred to Para 38
2008 (11) SCR 184 referred to Para 39
2008 (13) SCR81 referred to Para 40
G
2009 (7) SCR 182 referred to Para 41
2011 (2) SCR367 referred to Para 42
2011 (5) SCR518 referred to Para 43
H 2012 (2) SCR225 referred to Para 44
SHANKAR KISANRAO KHADE v. STATE OF 971
MAHARASHTRA
2009 (9) SCR 90 referred to Para 47 A
2006 (10) Suppl. SCR662 referred to Para 48
2001 (2) SCR 864 referred to Para 49
2001 (3) SCR 656 referred to Para 49
B
2001 (5) Suppl. SCR 612 referred to Para 49
2002 (1) SCR 586 referred to Para 49
2005 (3) Suppl. SCR233 referred to Para 51
2001 (5) Suppl. SCR 54 referred to Para 52
c
2003 (2) Suppl. SCR884 referred to Para 52
(201 O) 1 sec 58 referred to Para 54
2012 (3) SCR630 referred to Para 55 D
2012 (5) SCR696 referred to Para 56
2012 (5) SCR 952 referred to Para 57
2012 (3) SCR599 referred to Para 58 E
2012 (7) SCR359 referred to Para 59
(2013) 2 sec 113 referred to Para 60
1996 (2) SCR 1009 referred to Para 61
F
19~8 (2) SCR 162 referred to Para 62
(2013) 2 sec 479 referred to Para 63
MANU/SC/0165/2013 referred to Para 64
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G
No. 362-363 'l!)f 2010.
From the l\.idgment & Order dated 27.06.2008 of the High
Court of Judica\U~ at Bombay Bench at Nagpur in Criminal
Appeal No. 512 o'f :2()0.7. H
972 SUPREME COURT REPORTS (2013) 6 S.C.R.
A Ajay Kumar Talesara for the Appellant.
Aprajita Singh (for Asha Gopalan Nair) for the Respondent.
The Judgments of the Court was delivered by
B K.S. RADHAKRISHNAN, J. 1. We are in these appeals
concerned with a gruesome murder of a minor girl with
intellectual disability (moderate) after subjecting her to series
of acts of rape by a middle ager, who has now been sentenced
to death by the High Court of Bombay.
c 2. Appellant, Shankar Kisanrao Khade (Accused No.1)
and his present wife Mala Shankar Khade (Accused No.2) were
charge sheeted, for the offences punishable under Sections
363, 366-A, 376, 302, 201 read with Section 34 IPC, for having,
in furtherance of their common intention, kidnapped a minor girl
D and accused No.1 had committed rape on her several times
and committed the murder by strangulation. The Additional
Sessions Court in Sessions Case No. 165/2006 convicted the
first accused and sentenced him to death under Section 302
IPC, subject to confirmation by the High Court and was also
E awarded imprisonment for life and to pay a fine of Rs.1,000/-
in default to suffer rigorous imprisonment (for short RI) for six
months for offences under Section 376 IPC, further seven years
RI and to pay a fine of Rs.500/- in default to suffer RI for three
months under Section 366-A IPC and five years RI and to pay
F a fine of Rs.500/- in default to suffer RI for one month for
offences punishable under Section 363 IPC, read with Section
34 IPC. The second accused - his wife, was convicted for the
offences punishable under Section 363A read with Section 34
IPC and sentenced to suffer RI for five years and to pay a fine
G of Rs.500/- in default and to suffer RI for one month. The
Accused No.2 had already suffered the punishment, hence did
not file any appeal against the order of the sessions judge. The
accused preferred Criminal Appeal No.512 of 2007 before thE
High Court and the Court heard the appeal along wit~.
H Confirmation Case No.1 of 2007. The High Court dismissec
SHANKAR KISANRAO KHADE v. STATE OF 973
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
the appeal and the reference made by the Sessions Court was A
accepted and the death sentence was confirmed. Appellant has
preferred these two appeals against those orders.
3. The facts giving rise to these appeals are as follows:
The deceased, a minor girl, aged about 11 years was B
living with her grandmother (PW-13) at Gunwant Khandare in
Gunwant Maharaj Sansthan at Lakhnwadi. On 20.7.2006, in the
evening, both the accused came to Sansthan and stayed there.
On seeing the minor girl the accused and his wife offered
mango sweets. On the morning of 21.07.2006 also the accused c
offered her sweets and attracted her attention. At about 12.00
O'clock on the same day, both the accused and his wife
induced her to come with them and the girl accompanied them.
PW-13, the grandmother of the girl child was informed by some
of the ladies residing in the neighbourhood that they saw the D
girl being taken away by the first accused towards the place
called Puja - Dhuni. PW-13 met village Madhan and informed
him that fact and also to her son, Ramesh (PW-12), but the girl
could not be traced. Facts revealed that the girl was taken by
the accused persons to a weekly mar!<et at Paratwada and E
stayed there during night and the first accused had committed
the act of rape on her and which was repeated at Gayatri
Mandir at Paratwada where they had stayed on 22.7.2006.
4. The accused persons then on 23.07.2006 took the girl
F
to the house of one Ravindra Lavate (PW-8) whom they know
earlier. PW8 and the son of the accused were friends. On the
date of incident, they stayed there. The accused and the girl
were sleeping in the verandah when PW-8 heard the cries of
the minor girl and found the accused committing rape on her
which was objected to by him and his wife. The accused then G
took the girl on a bicycle in the field bearing No.62 of Shantaram
Jawarkar at about 9.00 pm. and after committing rape
strangulated and murdered her. Vinod Jaswarkar (PW 14) and
Sanjay (PW 9) found the dead body nf the minor girl from the
field. PW 9 approached the police station Asegaon and H
974 SUPREME COURT REPORTS [2013] 6 S.C.R.
A submitted Ext.48 report about the incident. The Investigating
Officer A.P.I. Baviskar (PW18) went to the place of occurrence
with the panchas and staff and noticed that the minor girl was
raped and murdered. The spot panchnama was prepared in
the presence of the staff. Articles found at the spot were seized
s and Ext.16 inquest panchnama was also prepared and dead
body was sent for the post mortem. Dr. Mohan Kewade (PW
3) conducted the post-mortem and submitted the report Ext. 27
dated 25.07.2006.
5. Ramesh (PW12) informed Asegaon police station that
C his sister's daughter was missing since 21.7.2006 and her
dead body was identified by him. PW3, who conducted the post
mortem, came to the conclusion that the deceased was raped
and murdered and he had also opined that the deceased was
subjected to carnal intercourse and the death was due to
D asphyxia due to strangulation. Devsingh Baviskar, API (PW18)
recorded the statement of several witnesses and arrested the
accused and his wife on 2.8.2006 and the charge sheet was
filed before the Judge, First Class, Chandur Bazar who later
committed the case to the Court of Sessions.
E
6. The prosecution examined 18 witnesses and relied
upon several documents including the experts evidence. No
witness was examined on the side of the defence. The
Sessions Court found both the accused guilty and convicted the
F 1st accused and sentenced him with death penalty which was
confirmed. We are in these appeals primarily concerned with
the question whether the death sentence awarded to Shankar
Kisanrao Khade is sustainable or not and whether the case falls
under the category of rarest of rare cases warranting capita
G punishment.
7. We heard Shri. A.K. Talesera, learned counse
appearing for the accused and Ms.Aprajita Singh, learnec
counsel appearing for the State at length. Shri Taleser~
submitted that the prosecution had failed to prove beyonc
H reasonable doubt that it was the accused who had committee
SHANKAR KISANRAO KHADE v. STATE OF 975
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
the offence of rape and murder of the deceased girl. He A
submitted that PW 8 is not a natural witness and his evidence
inspires no confidence. Further, it was pointed out that there
was delay in recording the statement of PW8 by the Police and
he was a planted witness. Learned counsel also pointed out
that if PW 8 had witnessed the accused committing the crime, B
he would have informed the police at the earliest point of time.
Learned counsel also pointed out that even though the wife of
PW 8 was also present in the house, she was not examined
as a witness. Further it was pointed out that, the test
identification parade conducted also suffered from serious c
infirmities. Further it is also pointed out that there were material
inconsistencies, contradictions and omissions which had
seriously affected the prosecution version and that the important
links in the chain of circumstances that it was the accused who
had committed the crime were missing. Learned counsel 0
submitted that in any view of the matter, the case would not fall
under the rarest of rare category warranting capital punishment. _
8. Ms. Aparjita Singh, learned counsel appearing for the
respondent-State submitted that the prosecution has
succeeded in proving the guilt of the accused beyond E
reasonable doubt. Learned counsel submitted that PW 8 is a
natural witness and he had no motive or any enmity with the
accused so as to rope him in the crime. On the other hand his
son and accused's son were friends. Learned counsel
submitted that the evidence adduced in this case proved F
beyond doubt that it was the accused who had kidnapped the
minor girl and committed rape on her and later strangulated her
to death. Learned counsel also submitted that the medical
evidence clearly establishes that over and above the
commission of the offence of rape, the accused had committed G
the offence of sodomy as well. Further it was pointed out that
the accused was aged about 52 years and had committed the
ghastly crime of rape on the girl aged between 11 to 12 years
having moderate intellectual disability. Facts, according to the
counsel, clearly indicate that the deceased was subjected to H
976 SUPREME COURT REPORTS [2013] 6 S.C.R.
A rape for more than one occasion and later strangulated her to
death. Learned counsel placed reliance on an affidavit and
submitted that the accused had previous history of committing
various crimes. Reference was made to Crime No.18 of 2006,
charged against the accused for committing the offence under
B Sections 457 and 380 of IPC, which was registered at Asegaon
police station. Reference was also made to Criminal Case
No.264 of 2006 pending before the Judicial Magistrate, First
Class, Chandurbazar. Further it was also pointed that the
accused was arrayed as accused in Sessions Trial No.52 of
c 2007 for offences punishable under Section 302 IPC for '
committing the murder of one lady.
9. Counsel appearing on either side placed reliance on a
number of judgments of this Court to bring home their
respective contentions. Learned counsel appearing for the
D accused placed reliance on the judgments of this Court in
Bachan Singh v. State of Punjab (1980) 2 SCC 684, Mohd.
Chaman vs. State (NCT of Delhi) (2001) 2 SCC 28, Surendra
Pal Shivbalakpal vs. State of Gujarat (2005) 3 SCC 127, State
of Maharashtra v. Mansingh (2005) 3 SCC 131 and State of
E Rajasthan v. Kashi Ram (2006) 12 SCC 254.
10. Learned counsel appearing for the prosecution placed
reliance on the judgments of this Court in Gurmukh Singh v.
State of Haryana (2009) 15 SCC 635, Mohd. Farooq Abdul
F Gafur and others. v. State of Maharashtra (2010) 14 SCC 641,
Sushi/ Murmu v. State of Jharkhand (2004) 2 SC 338, Shivu
and another v. Registrar General, High Coult of Kamataka
and another (2007) 4 SCC 713, B.A. Umesh v. Registra1
General, High Coult of Karnataka (2011) 3 SCC 85, Mohd.
G Mannan Alias Abdul Mannan v. State of Bihar (2011) 5 SCC
317, Sebastian v. State of Kera/a (2010) 1 SCC 58, Alok6
Nath Dutta and others v. State of West Bengal (2007) 12 SCC
230 and Swamy Shraddananda Alias Murali Manohar Mishr<-
v. State of Karnataka (2007) 12 SCC 288.
H 11. I have critically and minutely gone through the evidence
SHANKAR KISANRAO KHADE v. STATE OF 977
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
adduced by the prosecution as well as by the defence and A
examined whether the prosecution had succeeded in
establishing the following circumstances to prove the charges
levelled against the accused.
(i) The accused went to Gunwant Maharaj Sansthan at B
Lakhanwadi on 20.07.2006 and stayed there for one
day along with accused No.2 and on 21.7.2006
took the deceased to Dhuni.
(ii) On 22.7.2006 accused took deceased to Gayatri
Mandir. c
(iii) On 23.7.2006 the accused along with his wife and
deceased went to the house of Ravindra Lavate
(P.W.B) and stayed there.
D
(iv) On 23.7.2006 at night the accused committed rape
on deceased.
(v) '
On 23.7.2006 during the night time the accused left
on the bicycle with the deceased and on 24.7.2006
he came back to the house of PWB to take his wife E
accused No.2.
(vi) False explanation given by accused to PWB that he
had dropped the deceased at Lakhanwadi.
(vii) On 24.7.2006 dead body of the deceased was F
foutid rn the field of the father of Sanjay Jawarkar
(P.W.9).
(viii) Death of deceased was homicidal and that
deceased was subjected to sexual intercourse on G
more than one occasion.
(ix) Deceased was suffering from moderate intellectual
disability.
(x) Identification of the accused by the witnesses. H
978 SUPREME COURT REPORTS [2013] 6 S.C.R.
A (xi) Spot Punchanama and discovery of articles at the
instance of the accused."
12. Facts in this case indicate that the deceased was
aged about 11 years on the date of the incident and was
studying in the 4th standard. On the age of the girl, there was
8
some dispute. Certificate Ext.94 issued by the Handicap Board
stated the age of girl was 9 years on 6.12.2005. Post-mortem
report Ext.27 mentions her age as 14 years and the opinion of
the Medical Officer Ext. 29 shows that the approximate age of
the deceased was about 14 years. Ramesh PW 12, the
C maternal uncle stated that her age was between 10-12 years.
PW 13 - grandmother of the deceased stated her age was
about 1O years. Taking into consideration all the versions of the
witnesses and the documents produced, it is safe to conclude
that her age was around 11 years.
D
13. PW 10, PW 11, PW 12 and PW 13 stated how the
girl was taken from the house of PW 13 and travelled to
difference· places, including the mandir. PW 1O who was
present at Gunwant Maharaj Sansthan had deposed that on
E 20.7.2006 at about 7.00 pm accused and his wife came to
mandir and stayed in the,hall of the mandir and one girl aged
about 11 years was also wi(h them.,PW 11, who was conducting
the hotel business opposite to 1the tnandir, stated that on
20.7.2006 at about 7.00pm one man and woman had come to
F his hotel and on the next day at about 1.00 pm they came witb
a girl aged about 10-11 years and went to the mandir and he
identified both the accused persons in the court. P.W. 12, the
uncle of the deceased stated that on 23.7.2006 his mother had
come to his house and informed that the deceased was
missing. Further, a watchman of the mandir PW 16 had also
G deposed that he saw a lady and a man with the girl aged about
12 years coming come to the mandir. Another clinching
evidence which conclusively proved that the girl was in the
company of the accused and his wife was the evidence of PW
8. PW 8 deposed that his son and Santosh, son of the
H
SHANKAR KISANRAO KHADE v. STATE OF 979
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
accused, were friends and he used to go to the house of the A
accused. PW 8 deposed that, on 19.6.2006, the accused and
his wife had stayed in his house stating that they had come to
meet one of the relatives who had been admitted in a nearby
hospital. On 23.7.2006, again the accused along with his wife
came to the house of PW 8 on a bicycle along with a minor B
girl who was wearing a white shirt and green skirt. The accused
and his wife requested that they be permitted to stay during
night which PW 8 agreed. The accused was sleeping in the
verandah during night along with the girl. PW 8 heard the girl
weeping and became curious and when it was found that the c
accused was having sexual intercourse with the minor girl PW
8 asked the accused and his wife to leave the place. Accused
then took away the girl on his bicycle leaving his wife in the
house of PW8.
14. The above facts would clearly establish that the girl was D
last seen with the accused. PWB evidence discloses that the
girl and the accused were seen togethj;Jr at a point of time in
proximity with the tirhe ,a~~ ..~IJ)!j!,
f6r the commission of the
offence. Last seen theory was successfully established by the
prosecution beyond any reasonable doubt. This Court in State E
of UP. v. Satish (2005) 3 SCC 114 has held that 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 is so small that possibility
of any person other than the accused being the author of the F
crime is impossible. This test, in my view, is fully satisfied in
the instant case. Reference may also be made to the judgment
of this Court in Ramreddy Rajesh ·Khanna Reddy and Another
v. State of Andhara Pradesh (2006) 10 SCC 172, Kusuma
Ankama Rao v. State of Andhra Pradesh (2008) 13 SCC 257 G
and Manivel and Others v. State of Tamil Nadu.
15. PW8 stated on the next day of the incident that the
accused came alone to his house without the girl and left the
house along with his wife. Evidence of PW 8 is very crucial and
H
980 SUPREME COURT REPORTS [2013] 6 S.C.R.
A there is nothing to show that he had any enmity or grudge
against the accused so as to implicate him. PW8 had no
difficulty in identifying the accused since he knew them earlier.
16. Further, apart from the evidence of witnesses
B discussed above, another crucial evidence is the medical
evidence. PW 3, Dr. Mohan Kewade, who had conducted the
post-mortem on the dead body of the deceased, noticed the
following external injuries:
(i) Labia Majera and Minora swelled, tear of size two
c inch x % inch over interior part of labia Majera,
extending to vagina present with clots of blood.
(ii) Anal tear of size 1 inch x % inch posteriorly present
swelling of anal opening and dilation of anal
D opening about 2 inch ween.
(iii) Bruises of size 3 cm x 2 cm over both side of neck
present about three in number on each side.
(iv) Bruise of size 2 cm x 2 cm over medial surface thigh
E and thigh folds present.
(v) Perianal bruises of size 1 cm x 1cm about three in
number present, probable age of injuries are about
2 to 3 days.
F On internal examination he found following injuries:
(i) Injuries over larynx Trachea and bronchi; Evidence
of fracture of upper two tracheal rings and larynx
present.
G (ii) Organs of generation.
(iii) Tear of cervix about 3 cm interiorly present wit~
echoymetic."
H 17. Medical evidence clearly indicates that the cause o-
SHANKAR KISANRAO KHADE v. STATE OF 981
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
the death was asphyxia due to strangulation and though there A
was clear evidence of carnal intercourse, the accused was not
charged for that offence. On a close scrutiny of the evidence, it
can safely be concluded that the deceased girl was subjected
to the acts of rape for more than one occasion.
B
18. I have extensively, critically and minutely gone through
the evidence adduced in this case and I have no doubt in mind
that it was the accused who had committed the crime. The
standard of proof required to convict a person on circumstantial
evidence is well established by a series of judgments of this C
Court. The circumstances relied upon in support of the
conviction must be fully established and the chain of evidence
furnished by those circumstances must be complete so as not
to leave any reasonable ground for a conclusion consistent with
the innocence of the accused. The Sessions Court as well as
the High Court has correctly appreciated the evidence and D
documents adduced in this case and found that the guilt of the
accused is proved beyond reasonable doubt with which we fully
concur.
19. The only question that now remains to be decided is E
whether this case falls in the category of rarest of rare cases,
justifying capital punishment. This Court in several Judgments
has awarded capital punishment, where rape and murder have
been committed on a minor girl, after striking a balance
between the aggravating and mitigating circumstances. Several F
other factors like the young age of the accused, the possibility
of reformation, lack of intention to murder consequent to rape
etc. have also gone into the judicial mind.
20. In Ba~han Singh (supra), while determining the
constitutional validity of the death penalty, this Court also G
examined the sentencing procedure embodied in sub-section
(3) of Section 354 Cr.P.C. and held as follows:
"While considering the question of sentence to be imposed
for the offence of murder under Section 302 of the Penal H
982 SUPREME COURT REPORTS [2013] 6 S.C.R.
A Code, the court must have regard to every relevant
circumstance relating to the crime as well as the criminal.
If the court finds, but not otherwise, that the offence is of
an exceptionally depraved and heinous character and
constitutes, on account of its design and the manner of its
B execution, a source of grave danger to the society at large,
the court may impose the death sentence."
21. In Machhi Singh and others v. State of Punjab (1983)
3 sec 4 70 this Court held that case fell in the category of rarest
C of rare cases calling for capital punishment since the victim of
murder was an innocent child who could not have or had not
provided even an excuse, much less a provocation for murder
or the murder was committed in an extremely brutal, grotesque,
diabolical, revolting or dastardly manner which arose intense
and extreme indignation of the community. The motivation of
D the perpetrator, the vulnerability of the victim, the enormity of
the crime, the execution thereof are factors which normally
weigh with the court in awarding the death sentence terming it
as the rarest of the rare cases. Reference to few judgments of
this Court where death penalty has been awarded for rape and
E murder of minor girls and judgments, where it has been
commuted may be apposite.
22. DEATH PENALTY AWARDED
1. Nathu Garam v. State of Uttar Pradesh ((1979)
F
3 sec 366]
This Court in that case upheld the death sentence awarded
by the trial Court, confirmed by the High Court, for causing
death of a 14 year old girl by a person aged 28 years after
G luring her into the house for committing criminal assault.
Judgment was delivered prior to Bachan Singh (supra),
therefore, the mitigating circumstances concerning the crimina(
were not seen addressed. Stress was more on "crime test".
2. Jumman Khan v. State of Uttar Pradesh ((1991)
H
1 sec 1s21
SHANKAR KISANRAO KHADE v. STATE OF 983
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
This Court, in this case, was hearing a writ petition moved A
by a convict, not to extend the death sentence. Writ Petition
was dismissed after referring to the order passed by this Court
in S.L.P. (Criminal) No. 558 of 1986, confirming the death
sentence, noticing the degree of criminality and the
reprehensive and gruesome manner the crime was committed B
on a six year old child. "Criminal test" is not prima facie seen
satisfied, but only the "crime test".
3. Dhananjoy Chatterjee v. State of West Bengal
[(1994) 2 sec 2201
c
This Court dealt with a case of rape and murder of a young
girl of about 18 years. The Court opined that a real and abiding
concern for the dignity of human life is required to be kept in
mind by courts while considering the confirmation of the
sentence of death but a cold-blooded and pre-planned murder D
without any provocation, after committing rape on an innocent
and defenceless young girl of 18 years exists in a rarest of rare
cases which calls for no punishment other than capital
·punishment.
E
Paras 14 and 15 of the judgment would indicate that this
Court was more on crime test; not on criminal test, which are
extracted below:
"14. In recent years, the rising crime rate-particularly
violent crime against women has made the criminal F
sentencing by the courts a subject of concern. Today there
are admitted disparities. Some criminals get very harsh
sentences while many receive grossly different sentence
for an essentially equivalent crime and a shockingly large
number even go unpunished, thereby encouraging the G
criminal and in the ultimate making justice suffer by
weakening the system's credibility. Of course, it is' not
possible to lay down any cut and dry formula relating to
imposition of sentence but the object of sentencing should
be to see that the crime does not go unpunished and the H
984 SUPREME COURT REPORTS [2013] 6 S.C.R.
A victim of crime as also the society has the satisfaction that
justice has been done to it. In imposing sentences, in the
absence of specific legislation, Judges must consider
variety of factors and after considering all those factors and
taking an over-all view of the situation, impose sentence
B which they consider to be an appropriate one. Aggravating
factors cannot be ignored and similarly mitigating
circumstances have also to be taken into consideration.
15. In our opinion, the measure of punishment in a
given case must depend upon the atrocity of the crime; the
c conduct of the criminal and the defenceless and
unprotected state of the victim. Imposition of appropriate
punishment is the manner in which the courts respond to
the society's cry for justice against the criminals. Justice
demands that courts should impose punishment fitting to
D the crime so that the courts reflect public abhorrence of the
crime. The courts must not only keep in view the rights of
the criminal but also the rights of the victim of crime and
the society at large while considering imposition of
appropriate punishment."
E
Prima facie, it is seen that criminal test has not been satisfied,
since there was not much discussion on the mitigating
circumstances to satisfy the 'criminal test'.
4. Laxman Naik v. State of Orissa [(1994) 3 SCC
F
381]
This Court again confirmed the death sentence on an
accused for the offence of rape followed by murder of 7 year
old girl by her own uncle. The Court opined that the accused
G seems to have acted in a beastly manner. After satisfying his
lust, he thought that the victim might expose him for the
commission of offence on her to her family members and
others, the accused with a view to screen the evidence of the
crime, put an end to the life of that innocent girl. The Court
H noticed how diabolically the accused had conceived his plan
SHANKAR KISANRAO KHADE v. STATE OF 985
MAHARASHTRA [K.S. RADHAKRISHNAN, J.)
and brutally executed it in such a calculated cold blooded and A
brutal murder of a very tender age girl after committing rape
on her which, according to the Court, undoubtedly falls in the
rarest of rare case attracting no punishment other than capital
punishment.
B
In this case aggravating circumstances, that is, "crime test"
is seen fully satisfied, but on mitigating circumstances (criminal
test), this Court held as follows:
"26. This brings us to the question of sentence to be
imposed upon the appellant for the offences for which he C
has been found guilty by the two Courts below as well as
by us discussed above. In this connection it may be
pointed out that this Court in the case of Bachan Singh
v. State of Punjab (1980) 2 SCC 684: 1980 SCC (Cri)
580 while discussing the sentencing policy, also laid down D
norms indicating the area of imposition of death penalty
taking into consideration the aggravating and mitigating
circumstances of the case and affirmed the view that the
sentencing discretion is to be exercised judicially on well
recognized principles, after balancing all the aggravating E
and mitigating circumstances of the crime guided by the
Legislative Policy discernible from the provision contained
in Sections 253(2) and 354(3) of the CrPC. In other words,
the extreme penalty can be inflicted only in gravest cases
of the extreme culpability and in making choice of the F
sentence, in addition to the circumstances of the offender
also. Having regard to these principles vyith regard to the
imposition of the extreme penalty it may be noticed that
there are absolutely no mitigating circumstances in the
present case. On the contrary the facts of the case disclose G
only aggravating circumstances against the appellant
which we have to some extent discussed above and at the
risk of repetition shall deal with that again briefly.
27. The hard facts of the present case are that the
appellant Laxman is the uncle of the deceased and almost H
986 SUPREME COURT REPORTS [2013] 6 S.C.R.
A occupied the status and position that of guardian.
Consequently the victim who was aged about 7 years must
have reposed complete confidence in the appellant must
have believed in his bona fide also and it was on account
of such a faith and belief that she acted upon the
B command of the appellant in accompanying him under the
impression that she was being taken to her village
unmindful of the pre-planned unholy designs of the
appellant. The victim was totally a helpless child there
being no one to protect her in the desert where she was
c taken by the appellant misusing his confidence to fulfill his
just. It appears that the appellant had pre-planned to
commit the crime by resorting to diabolical methods and
it was with that object that he took the girl to a lonely place
to execute his dastardly act."
D Both the tests "crime test" and "criminal test", ii is seen,
have been satisfied against the accused for awarding capital
punishment.
5. Kamia Tiwari v. State of M.P. ((1996) 6 SCC 250]
E
This Court dealt with a case of rape followed by ml!rder
of a 7 year old girl. Evidence disclosed that the accused was
close to the family of the father of the deceased and the
deceased used to call him "uncle". This Court noticed the
closeness to the accused and the accused encouraged her to
F go to the grocery shop where the girl was kidnapped by him
and was subjected to rape and later strangulated to death
throwing the dead body in a well. This Court described the
murder as gruesome and barbaric and pointed out that a
person, who was in a position of a trust, had committed the
G crime and the motivation of the perpetrator, the vulnerability of
the victim, the enormity of the crime, the execution thereof
persuaded this Court to hold that case as a rarest of rare cases
where death sentence was warranted. The Court was following
the guidelines laid down in Machhi Singh (supra), held as
H follows:
SHANKAR KISANRAO KHADE v. STATE OF 987
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
"8. Taking an overall view of all the facts and A
circumstances of the instant case in the light of the above
propositions we are of the firm opinion that the sentence
of death should be maintained. In vain we have searched
for mitigating circumstances - but found aggravating
circumstances aplenty. The evidence on record clearly B
establishes that the appellant was close to the family of
Parmeshwar and the deceased and her siblings used to
call him 'Tiwari uncle'. Obviously her closeness with the
appellant encouraged her to go to his shop, which was
near the saloon where she had gone for a haircut with her c
father and brother, and ask for some biscuits. The
appellant readily responded to the request by taking ·her
to the nearby grocery shop of Budhsen and handing over
a packet of biscuits apparently as a prelude to his sinister
design which unfolded in her kidnapping, brutal rape and D
gruesome murder - as the numerous injuries on her person
testify; and the finale was the dumping of her dead body
in a well. When an innocent hapless girl of 7 years was
subjected to such barbaric treatment by a person who was
in a position of her trust his culpability assumes the E
proportion of extreme depravity and arouses a sense of
revulsion in the mind of the common man. In fine, the
motivation of the perpetrator, the vulnerability of the victim,
the enormity of the crime, the execution thereof persuade
us to hold that this is a 'rarest of rare' cases where the
sentence of death is eminently desirable not only to deter F
others from committing such atrocious crimes but also to
give emphatic expression to society's a abhorrence of
such crimes."
Court was giving thrust on crime test rather than criminal G
test against the accused.
6. Molai and another v. State of M.P. [(1999) 9 SCC
581]
A three-Judge Bench of this Court justified death sentence H
988 SUPREME COURT REPORTS [2013) 6 S.C.R.
A in a case where a 16 year old girl, preparing for her Tenth
Standard Examination was raped and strangulated to death.
The Court noticed the gruesome manner in which rape was
committed and the way in which she was strangulated to death
and the dead body was immersed in the septic tank. On
B sentence, the Court held as follows:
36. We have very carefully considered the
contentions raised on behalf of the parties. We have also
gone through various decisions of this Court relied upon
by the parties in the courts below as well as before us and
c in our opinion the present case squarely falls in the
category of one of the rarest of rare cases, and if this be
so, the courts below have committed no error in awarding
capital punishment to each of the accused. It cannot be
overlooked that Naveen, a 16 year old girl, was preparing
D for her 10th examination at her house and suddenly both
the accused took advantage of she being alone in the
house and committed a most shameful act of rape. The
accused did not stop there but they strangulated her by
using her under-garment and thereafter took her to the
E septic tank along with the cycle and caused injuries with a
sharp edged weapon. The accused did not even stop there
but they exhibited the criminality in their conduct by throwing
the dead body into the septic tank totally disregarding the
respect for a human dead body. Learned Counsel for the
F accused (appellants) could not point any mitigating
circumstances from the record of the case to justify the
reduction of sentence of either of the accused. In a case
of this nature, in our considered view, the capital
punishment to both the accused is the only proper
G punishment and we see no reason to take a different view
than the one taken by the courts below."
The three-Judge Bench, it is seen, has applied both the tests
Crime test as well as the Criminal test and found that the case
H falls in the category of rarest of rare cases.
SHANKAR KISANRAO KHADE v. STATE OF 989
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
7. Bantu v. State of Uttar Pradesh [(2008) 11 SCC A
113]
This Court confirmed death sentence in a case where a
minor girl of 5 years was raped and murdered. This Court,
following the principles laid down in Bachan Singh, pointed out B
that when the victim of the murder is an innocent child or a
helpless woman or old or infirm person or a person vis-a-vis
whom the murderer is in a dominating position, or a public figure
generally loved and respected by the community, it is a vital
factor justifying award of capital punishment. In this judgment C
also, this Court stressed on drawing of a balance sheet of
mitigating and aggravating circumstances, following the
judgment in Devender Pal Singh v. Government of NCT of
Delhi (2002) 5 SCC 234. Court was applying the "balancing
test", to award capital sentence.
D
8. Shivaji @ Dadya Shankar A/hat v. The State of
Maharashtra ((2008) 15 SCC 269]
This was a case where the accused, a married man having
three children, was known to the family of the deceased. The
E
Court noticed the horrendous manner in which the girl aged 9
years was done to death after ravishing her. The Court awarded
capital punishment. The Court, in this case, took the view that
mitigating and aggravating circumstances have to be balanced.
Here also the test applied was the "balancing test" to award
F
capital punishment.
9. Mohd. Mannan @ Abdul Mannan v. State of Bihar
[(2011) s sec3171
This was a case where a minor girl aged 7 years was G
kidnapped, raped and murdered. Court noticed how the
accused had won the trust of that innocent girl and the
gruesome manner in which she was subjected to rape and then
strangulated her to death. The accused was aged 42-43 years.
The Court held that he would be a menace to society and would
H
990 SUPREME COURT REPORTS [2013] 6 S.C.R.
A continue to be so and could not be reformed. The Court
awarded death sentence. The Court, in this case, held that a
balance sheet is to be prepared while considering the
imposition of death sentence. Here also the test applied was
"balancing test" to award capital punishment.
8
10. Rajendra Pralhadrao Wasnik v. State of
Maharashtra, (2012) 4 SCC 37
This was a case of rape and murder of a 3 years old child
by a married man of 31 years. Court noticed the brutal manner
C in which the crime was committed and the pain and agony
undergone by the minor girl. The Court confirmed the death
sentence awarded. The Court elaborately discussed when the
aggravating and mitigating circumstances to be taken note of
before awarding sentence and what are the principles to be
D followed, while awarding death sentence. The Court then held
as follows:
"37. When the Court draws a balance-sheet of the
aggravating and mitigating circumstances, for the
purposes of determining whether the extreme sentence of
E
death should be imposed upon the accused or not, the
scale of justice only tilts against the accused as there is
nothing but aggravating circumstances evident from the
record of the Court. In fact, one has to really struggle to
find out if there were any mitigating circumstances
F favouring the accused. Another aspect of the matter is that
the minor child was helpless in the cruel hands of the
accused. The accused was holding the ~hild in a
relationship of 'trust-belief and 'confidence', in wbich
capacity he took the child from the house of PW2. In other
G words, the accused, by his conduct, has belied the human
relationship of trust and worthiness."
Court in this case also applied the "balancing test" to award
capital punishment.
H
SHANKAR KISANRAO KHADE v. STATE OF 991
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
23. CASES IN WHICH DEATH PENALTY A
COMMUTED
1. Kumudi Lal v. State of U.P. [(1994) 4 SCC 108]
It was a case where a 14 year girl was raped and killed
by strangulation. The Court accepted the brutality of the crime, B
however commuted death penalty to life imprisonment. The
Court noticed that the evidence did not indicate the girl was
absolutely unwilling but rather showed that she initially permitted
the accused to take some liberties with her but later expressed
her unwillingness. Treating the same as a mitigating factor, C
death sentence was commuted to that of life imprisonment.
'Criminal test' was applied and was found not fully satisfied
since some mitigating circumstances were found to be in favour
of the accused so as to avoid death sentence.
D
2. Raju v. State of Haryana [(2001) 9 SCC 50]
This Court commuted death sentence to life imprisonment
in a case where a girl of 11 years was raped and murdered.
Court noticed that the accused had no intention to murder her,
but on the spur of the moment, without any premeditation, he E
gave two brick blows which caused the death\ Further, it was
also found that the accused had no previotJs criminal record
or would be a threat to the society. 'Gtiminal test' was applied
and found not fully satisfied some mitigating circumstances
were found to be in favour of the accused so as to avoid death F
sentence.
3. Bantu alias Naresh Giri v. State of M.P. [(2001) 9
sec 615]
This Court commuted death sentence to that of life G
imprisonment in a case where a girl of 6 years was raped and
murdered by a boy of less than 22 years. Though, this Court
found that the act was heinous and required to be condemned,
but it could not be said to be one of the rarest of rare category.
The accused did not require to be eliminated from the society. H
992 SUPR~ME COURT REPORTS [2013] 6 S.C.R.
A 'Criminal test' was applied and found some circumstances
favouring the accused so as to avoid death sentence.
4. State of Maharashtra v. Suresh ((2000) 1 SCC
471]
B This Court in that case commuted the death sentence to
life imprisonment where a girl of 4 years old was raped and
murdered. Though this Court felt that the case was perilously
near the region of rarest of the rare cases, but refrained from
imposing extreme penalty. "Criminal test" was applied and
C narrowly escaped death sentence.
5. Amrit Singh v. State of Punjab [AIR 2007 SC 132)
This Court commuted death sentence to that of life
imprisonment in a case, where a 7-8 years old girl was raped
0 and murdered by the accused aged 31 years. The Court
noticed the manner in which the deceased was raped, it was
brutal, but held it could have been a momentary lapse on the
part of the accused, seeing a lonely girl at a secluded place
and there was no pre-meditation for commission of the crime.
E "Criminal test" it is seen, has been applied in favour of the
accused to avoid death sentence.
6. Rameshbhai Chandubhai Rathod v. The State of
Gujarat [(2011) 2 SCC 764)
F
This Court commuted death sentence to life imprisonment
of the accused committing rape and murder of a girl of 8 years.
It was noticed that the accused at the time of the commission
of crime was 27 years and possibility of reformation could not
G be ruled out. "Criminal test" was applied considering the age
of the accused and possibility of reformation saved the accused
from death penalty.
7. Surendra Pal Shivbalak v. State of Gujarat ((2005)
3 sec 1211
H
SHANKAR KISANRAO KHADE v. STATE OF 993
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
This Court commuted death sentence to that of life A
imprisonment in a case where the accused aged 36 years had
committed rape and murder of a minor girl. This Court noticed
at the time of occurrence, the accused had no previous criminal
record and held would not be a menace to the society in future.
"Criminal test" was applied and absence of previous record B
was considered as a circumstance to avoid death sentence.
8. Amit v. State of Maharashtra [(2003) 8 SCC 93]
This Court commuted death sentence to life imprisonment
in a case where the accused aged 28 years had raped and C
murdered a girl of 11-12 years. This Court noticed that the
accused had no previous criminal track record and also there
was no evidence that he would be a danger to the society in
future. "Criminal test" was applied, absence of previous track
record and danger to the society were considered to avoid D
death sentence.
24. The list of cases mentioned above, wherein this Court
had awarded death sentence and cases where this Court had
commuted death sentence, is not exhaustive but only illustrative.
E
This bench in Sangeet & Ors v. State of Haryana (2013) 2
sec 452 noticed that the circumstances of the criminal referred
to in Bachan Singh appeared to have taken a bit of back seat
in the sentencing process and held despite Bachan Singh, the
'particular crime' continues to play a more important role than
F
the 'crime and criminal'. In conclusion, we have said, inter a/ia,
as follows:
"1. The application of aggravating and mitigating
circumstances needs a fresh look. This Court has
not endorsed that approach in Bachan Singh. In G
any event, there is little or no uniformity in the
application of this approach.
2. Aggravating circumstances relate to the crime while
mitigating circumstances relate to the criminal. A
H
994 SUPREME COURT REPORTS (2013) 6 S.C.R
A balance sheet cannot be drawn up for comparing
the two. The considerations for both are distinct and
unrelated. The use of the mantra of aggravating and
mitigating circumstances needs a review.
B 3. In the sentencing process, both the crime and the
criminal are equally important We have,
unfortunately not taken the sentencing process as
seriously as it should be with the result that in
capital offences, it has become judge-centric
sentencing rather than principled sentencing.
c
4. The Constitution Bench of this Court has not
encouraged standardization and categorization of
crimes and even otherwise it is not possible to
standardize and categorize all crimes."
D
25. In Bachan Singh and Machhi Singh cases, this Court
laid down various principles for awarding sentence:
"Aggravating circumstances - (Crime test)
E 1. The offences relating to the commission of heinous
crimes like murder, rape, armed dacoity, kidnapping etc.
by the accused with a prior record of conviction for capital
felony or offences committed by the person having a
substantial history of serious assaults and criminal
F convictions.
2. The offence was committed while the offender was
engaged in the commission of another serious offence.
3. The offence was committed with the intention to create
G a fear psychosis in the public at large and was committed
in a public place by a weapon or device which clearly
could be hazardous to the life of more than one person.
4. The offence of murder was committed for ransom or like
H offences to receive money or monetary benefits.
SHANKAR KISANRAO KHADE v. STATE OF 995
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
5. Hired killings. A
6. The offence was committed outrageously for want only
while involving inhumane treatment and torture to the victim.
7. The offence was committed by a person while in lawful
custody. B
8. The murder or the offence was committed, to prevent a
person lawfully carrying out his duty like arrest or custody
in a place of lawful confinement of himself or another. For
instance, murder is of a person who had acted in lawful c
discharge of his duty under Section 43 Code of Criminal
Procedure.
9. When the crime is enormous in proportion like making
an attempt of murder of the entire family or members of a
0
particular community.
10. When the victim is innocent, helpless or a person relies
upon the trust of relationship and social norms, like a child,
helpless woman, a daughter or a niece staying with a
father/uncle and is inflicted with the crime by such a trusted E
person.
11. When murder is committed for a motive which
evidences total depravity and meanness.
12. When there is a cold blooded murder without F
provocation.
13. The crime is committed so brutally that it pricks or
shocks not only the judicial conscience but even the
conscience of the society.. G
Mitigating Circumstances: (Criminal test)
1. The manner and circumstances in and under which the
offence was committed, for example, extreme mental or
emotional disturbance or extreme provocation in H
996 SUPREME COURT REPORTS (2013] 6 S.C.R.
A contradistinction to all these situations in normal course.
2. The age of the accused is a relevant consideration but
not a determinative factor by itself.
3. The chances of the accused of not indulging in
B commission of the crime again and the probability of the
accused being reformed and rehabilitated.
4. The condition of the accused shows that he was
mentally defective and the defect impaired his capacity to
c appreciate the circumstances of his criminal conduct.
5. The circumstances which, in normal course of life, would
render such a behavior possible and could have the effect
of giving rise to mental imbalance in that given situation
like persistent harassment or, in fact, leading to such a
D peak of human behavior that, in the facts and
circumstances of the case, the accused believed that he
was morally justified in committing the offence.
6. Where the Court upon proper appreciation of evidence
E is of the view that the crime was not committed in a pre-
ordained manner and that the death resulted in the course
of commission of another crime and that there was a
possibility of it being construed as consequences to the
commission of the primary crime.
F
7. Where it is absolutely unsafe to rely upon the testimony
of a sole eye-witness though prosecution has brought
home the guilt of the accused."
26. In Santosh Kumar Satishbhushan Bariyar vs. State
G of Maharashtra (2009) 6 SCC 498, this Court held the nature,
motive, and impact of crime, culpability, quality of evidence,
socio economic circumstances, impossibility of rehabilitation
and some of the factors, the Court may take into consideration
while dealing with such cases.
H
SHANKAR KISANRAO KHADE v. STATE OF 997
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
27. In Sangeet's case this Bench has held that there is no A
question of balancing the above mentioned circumstances to
determine the question whether the case falls into the rarest of
rare cases category because the consideration for both are
distinct and unrelated. In other words the "balancing test" is not
the correct test in deciding whether capital punishment be B
awarded or not.
28. Aggravating Circumstances as pointed out above, of
course, are not exhaustive so also the Mitigating
Circumstances. In my considered view that the tests that we
have to apply, while awarding death sentence, are "crime test", C
"criminal test" and the R-R Test and not "balancing test". To
award death sentence, the "crime test" has to be fully satisfied,
that is 100% and "criminal test" 0%, that is no Mitigating
Circumstance favouring the accused. If there is any
circumstance favouring the accused, like lack of intention to D
commit the crime, possibility of reformation, young age of the
accused, not a menace to the society no previous track record
etc., the "criminal test" may favour the accused to avoid the
capital punishment. Even, if both the tests are satisfied that is
the aggravating circumstances to the fullest extent and no E
mitigating circumstances favouring the accused, still we have
to apply finally the Rarest of Rare Case test {R-R Test). R-R
Test depends upon the perception of the society that is "society
centric" and not·Judge centric" that is, whether the society will
approve the awarding of death sentence to certain types of F
crimes or not. While applying that test, the Court has to look
into variety of factors like society's abhorrence, extreme
indignation and antipathy to certain types of crimes like sexual
assault and murder of minor girls intellectually challenged,
suffering from physical disability, old and infirm women with G
those disabilities etc.. Examples are only illustrative and not
exhaustive. Courts award death sentence since situation
demands so, due to constitutional compulsion, reflected by the
will of the people and not the will of the judges.
H
998 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 29. We have to apply the above tests in the present case
and decide whether the courts below were justified in awarding
the death sentence.
Enormity of the Crime and execution thereof (Crime Test)
B 30. Victim was aged 11 years, on the date of the incident,
a school going child totally innocent, defenceless and having
moderate intellectual disability. Ex. P-4 was a certificate issued
by the President of the Handicap Board General Hospital,
Amravati which disclosed that the girl was physically
C handicapped and was having moderate mental retardation.
Evidence of PW 10, PW 12 and PW13 also corroborates the
fact that she was a minor girl with moderate intellectual
disability, an aggravating circumstance which goes against the
accused. Vulnerability of the victim with moderate intellectual
D disability is an aggravating circumstance. The accused was a
fatherly figure aged 52 years.
31. Dr. Kewade - PW3, who conducted the post mortem,
had deposed as well as stated in the report the ghastly manner
E in which the crime was executed. Rape was committed on more
than one occasion and the manner in which rape as well as
murder was executed had been elaborately discussed in the
oral evidence as well as in report which we do not want to
reiterate. The action of accused, in my view, not only was
inhuman but barbaric. Ruthless crime of repeated actions of
F rape followed by murder of a young minor girl who was having
moderate intellectual disability, shocks not only the judicial
conscience, but the conscience of the society.
32. In my view, in this case the crime test has been satisfied
G fully against the accused.
Criminal Test
33. Let us now examine whether "Criminal Test' has been
satisfied. The accused was aged 52 years at the time of
H incident, a fatherly figure for the minor child. The accused is an
SHANKAR KISANRAO KHADE v. STATE OF 999
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
able bodied person has seen the world and is the father of two A
children. The accused repeatedly raped the girl for few days,
ultimately strangulated her to death. Intellectually challenged
minor girls will not be safe in our society if the accused is not
given adequate punishment. Considering the age of the
accused, a middle ager of 52 years, reformation or B
rehabilitation is practically ruled out. In the facts and
circumstances of the case, in my view, criminal test has been
fully satisfied against the accused and I do not find any
mitigating factor favouring the accused. The only mitigating
circumstance stated was that the accused is having two sons c
aged 26 and 27 years and are dependent on him, which in my
view, is not a mitigating circumstance and the "criminal test" is
fully satisfied against the accused. Both the crime test and
criminal test are, therefore, independently satisfied against the
accused.
D
34. Let us now apply the R-R Test. I have critically and
minutely gone through the entire evidence and I am of the view
that any other punishment other than life imprisonment would
be completely inadequate and would not meet the ends of
justice. E
35. Remember, the victim was a minor girl aged 11 years,
intellectually challenged and elders like the accused have an
obligation and duty to take care of such children, but the
accused has used her as a tool to satisfy his lust. Society F
abhors such crimes which shocks the conscience of the society
and always attracts intense and extreme indignation of the
community. R-R Test is fully satisfied against the accused, so
also the Crime Test and the Criminal Test". Even though all the
above mentioned tests have been satisfied in this case, I am G
of the view that the extreme sentence of Death penalty is not
warranted since one of the factors which influenced the High
Court to award death sentence was the previous track record
of the accused.
H
1000 SUPREME COURT REPORTS [2013] 6 S.C.R.
A Previous Criminal Record of the Accused
36. The Investigating Officer, during the course of hearing
of the criminal appeal by the High Court, filed an affidavit dated
11.4.2008 stating that the accused was also figured as an
accused in Crime No. 165/92 registered at Police Station
B Borgaon Manju, District Akola for the offence under Section 302
IPC on the allegation that he caused murder of his wife Chanda
by assaulting her with stick on 4.10.1993 and that Sessions
Trial No. 52107 was pending before the Sessions Court, Akola.
Further, it was also stated that another Crime No. 80/06 was
c also registered against the accused at Chandur Bazar Police
Station for an offence under Sections 457 and 380 IPC. The
High Court was of the view that the accused had not disclosed
those facts before the Court and held as follows:
" .... However, fact remains that the accused has not
D disputed the pendency of these proceedings against him.
Moreover, they cannot be said to be irrelevant for the
purpose of deciding the appropriate sentence which
deserves to be imposed on the appellant. We, therefore,
deem it appropriate to consider the pendency of these
E cases as a circumstance against the accused .... ."
37. I find it difficult to endorse this view of the High Court.
In my view, the mere pendency of criminal cases as such
cannot be an aggravating factor to be taken note of while
granting appropriate sentence. In Gurrnukh Singh v. State of
F Haryana (2009) 15 SCC 635, this Court opined that criminal
background and adverse history of the accused is a relevant
factor. But, in my view, mere pendency of cases, as such, is
not a relevant factor. This Court in Mohd. Farooq Abdul Gafur
v. State of Maharashtra (2010) 14 SCC 641 dealt with a similar
G contention and Justice S. B. Sinha, while supplementing the
leading judgment, stated as follows:
"178. In our opinion the trial court had wrongly rejected the
fact that even though the accused had a criminal history,
but there had been no criminal conviction against the said
H three accused. It had rejected the said argument on the
SHAN KAR KISANRAO KHADE v. STATE OF 1001
MAHARASHTRA [K.S. RADHAKRISHNAN, J.)
ground that a conviction might not be possible in each and A
every criminal trial. ....... "
38. Therefore, the mere pendency of few criminal cases
as such is not an aggravating circumstance to be taken note
of while awarding death sentence unless the accused is found 8
guilty and convicted in those cases. High Court was, therefore,
in error in holding that those are relevant factors to be
considered in awarding appropriate sentence.
39. But what disturbed me the most is that the police after
booking_ the accused for offence under Section 377 IPC failed C
to charge sheet him, in spite of the fact the medical evidence
had clearly established the commission of carnal intercourse
on a minor girl with moderate intellectual disability. Dr. Kewade
- PW3, who conducted the post mortem, had clearly spelt out
the facts of sodomy in his report as well as in his deposition. D
Prosecuting agency has also failed in his duty to point out the
same to the court that a case had been made out under Section
377 IPC.
Non-reporting the offence of sexual assault
E
40. Let me now refer to another disturbing trend in our
society that is non-reporting of sexual assault on minor children,
which has happened in this case as well. Ravindra Lavate
(PW8), in his deposition, has stated as follows:
F
"I heard that the girl was weeping. I, therefore, come in
Verandah and observed that Accused No.1 was lying on
the body of the said girl. I observed it in the electric light.
I also observed that Accused No.1 was committing sexual
intercourse with the girl. I and my wife asked Accused No.1 G
as to what he was doing. I asked Accused No.1 Shankar
to take out the said girl. Accused No.1 thereafter took
away the said girl on cycle."
41. PW8 has admitted in his cross-examination that he had
not reported the said fact to the police, possibly due to the H
1002 SUPREME COURT REPORTS [2013] 6 S.C.R.
A reason that there was no clear cut legislative provision casting
an obligation on him to report to the J.J. Board or to the S.J.P.U.
dealing with sexual offences towards children after having
witnessed the incident. Is there not a duty cast on every citizen
of this country if they witness or come to know any act of sexual
B assault or abuse on a minor child to report the same to the
police or to the J.J. Board or can they keep mum so as to
screen the culprit from legal punishment?
42. Article 15 (3) of the Constitution of India confers upon
the State powers to make special provision for children. Article
C 39 inter alia provides that the State shall, in particular, direct
its policy towards securing that the tender age of children are
not abused and their childhood and youth are protected against
exploitation and they are given facilities to develop in a healthy
manner and in conditions of freedom and dignity.
D
43. The United Nations Convention on the Rights of
Children, rectified by India on 11th December 1992, requires
the State Parties to undertake all appropriate national, bilateral
and multilateral measures to prevent the inducement or coercion
E of child to engage in any unlawful sexual activity, the exploitative
use of children in prostitution or other unlawful sexual practices
etc. Articles 3(2) and 34 of the Convention have placed a
specific duty on the State to protect the child from all forms of
sexual exploitation and abuse. National Crime Records Bureau
F (NCRB) 2011 report specifically deals with the statistics of rape
victims which is as follows:
Rape Victims
44. There were 24,270 victims of Rape out of 24,206
G reported Rape cases in the country. 10.6% (2,582) of the total
victims of Rape were girls under 14 years of age, while 19.0%
(4,646 victims) were teenaged girls (14-18 years). 54.7%
(13,264 victims) were women in the age-group 18-30 years.
However, 15.0% (3,637 victims) were in the age group of 30-
H 50 years while 0.6% (141 victims) was over 50 years of age.
SHAN KAR KISANRAO KHADE v. STATE OF 1003
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
45. Offenders were known to the victims in as many as in A
22,549 (94.2%) cases. Parents I close family members were
involved in 1.2% (267 out of 22,549 cases) of these cases,
neighbours were involved in 34. 7% cases (7,835 out of 22,549
cases) and relatives were involved in 6.9% (1,560 out of 22,549
cases) cases. B
46. A total of 7,112 cases of child rape were reported in
the country during 2011 as compared to 5,484 in 201 O
accounting for an increase of 29. 7% during the year 2011.
Madhya Pradesh has reported the highest number of cases
(1,262) followed by Uttar Pradesh (1088) and Maharashtra C
(818). These three States altogether accounted for 44.5% of
the total child rape cases reported in the country.
Crimes against Children in the country and % variation in
2011 over 2010 D
SI. No. Crime YEAR % Variation in
Head 2011 over 2010
(1) (2) (3) (4) (5) (6)
E
3. Rape 5,368 5,484 7112 30
47. The Department of Women and Child Development
conducted a study and prepared a Draft of the Offences against
Children Bill, 2005 which was further discussed with the F
National Commission for Protection of Child Rights (NCPCR).
48. Parliament later passed the Act titled "The Protection
of Children from Sexual Offences Act, 2012. (Act 32 of 2012)
which received the assent of the. President on 19th June, 2012. G
The Act provides for reporting of sexual offences and the
punishment for failure to report or record punishment for filing
false complaint and/or false information. The Act also provides
for a Justice Delivery System for child victims and few other
provisions to safeguard the interest of children.
H
1004 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 49. Chapter V of the Act deals with the Procedure of
reporting of cases. Sec. 19(1) deals with the manner in which
the case has to be reported to the Special Juvenile Police Unit
or local police. Section 20 deals with the obligation of media,
studio and photographic facilities to report cases and the same
B reads as follows:
"20. Any personnel of the media or hotel or lodge or
hospital or club or studio or photographic facilities, by
whatever name called, irrespective of the number of
persons employed therein, shall, on coming across any
c material or object which is sexually exploitative of the child
(including pornographic, sexually-related or making
obscene representation of a child or children) through the
use of any medium, shall provide such information to the
Special Juvenile Police Unit, or to the local police, as the
D case may be.
Section 21 prescribes punishment for failure to report or record
a case, which reads as follows:
"21. (1) Any person, who fails to report the
E commission of an offence under sub-section (1) of section
19 or section 20 or who fails to record such offence under
sub-section (2) of section 19 shall be punished with
imprisonment of either description which may extend to six
months or with fine or with both.
F
(2) Any person, being in-charge of any company or
an institution (by whatever name called) who fails to report
the commission of an offence under sub-section (1) of
section 19 in respect of a subordinate under his control,
G shall be punished with imprisonment for a term which may
extend to one year and with fine."
50. I may also point out that, in large numbers of cases,
children are abused by persons known to them or who have
H influence over them. Criminal Courts in this country are galore
SHANKAR KISANRAO KHADE v. STATE OF 1005
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
with cases where children are abused by adults addicted to A
alcohol, drugs, depression, marital discord etc. Preventive
aspects have seldom been given importance or taken care of.
Penal laws focus more on situations after commission of
offences like violence, abuse, exploitation of the children.
Witnesses of many such heinous crimes often keep mum B
taking shelter on factors like social stigma, community
pressure, and difficulties of navigating the criminal justice
system, total dependency on perpetrator emotionally and
economically and so on. Some adult members of family
including parents choose not to report such crimes to the police c
on the plea that it was for the sake of protecting the child from
· social stigma and it would also do more harm to the victim.
Further, they also take shelter pointing out that in such situations
some of the close family members having known such incidents
would not extend medical help to the child to keep the same
0
confidential and so on, least bothered about the emotional,
psychological and physical harm done to the child. Sexual
abuse can be in any form like sexually molesting or assaulting
a child or allowing a child to be sexually molested or assaulted
or encouraging, inducing or forcing the child to be used for the E
sexual gratification of another person, using a child or
deliberately exposing a child to sexual activities or pornography
or procuring or allowing a child to be procured for commercial
exploitation and so on.
51. In my view, whenever we deal with an issue of child F
abuse, we must appfy the best interest child standard. since
best interest of the child is paramount and not the interest of
/
perpetrator of the crime. Our approach must be child centric.
Complaints received from any quarter, of course, have to be
kept confid~otial without casting any stigma on the child and G
· th~ faniily members. But, if the tormentor is the family member
himself, he shall not go scot free. Proper and sufficient
safeguards also have to be given to the persons who come
forward to report such incidents to the police or to the Juvenile
Justice Board. H
1006 SUPREME COURT REPORTS [2013) 6 S.C.R.
A 52. The conduct of the police for not registering a case
under Section 377 IPC against the accused, the agony
undergone by a child of 11 years with moderate intellectual
disability, non-reporting of offence of rape committed on her,
after having witnessed the incident either to the local police or
B to the J.J. Board compel us to give certain directions for
c0mpliance in future which, in my view, are necessary to protect
our children from such sexual abuses. This Court as parens
patriae has a duty to do so because Court has guardianship
over minor children, especially with regard to the children having
c intellectual disability, since they are suffering from legal
disability. Prompt reporting of the crime in this case could have
perhaps, saved the life of a minor child of moderate intellectual
disability.
53. President of India on 3rd February, 2013 promulgated
D an ordinance titled "The Criminal Law (Amendment) Ordinance,
2013, further to amend the Code of Criminal Procedure Code,
1973, Indian Evidence Act, 1872 and the Indian Penal Code,
1860. By the ordinance Sections 375, 376, 376-A, 376-B, 376-
C and 376-D of the Code have been substituted by new
E Sections. The word "rape" has been replaced by the word
"sexual assault". Section 375 has also clarified that lack of
physical resistance is immaterial for constituting an offence. A
new Section 376-A has been added which reads as follows:
F 376A. Whoever, commits an offence punishable
under sub-section (I) or sub-section (2) of Section 376 and
in the course of such commission inflicts an injury which
causes the death of the person or causes the person to
be in a persistent vegetative state, shall be punished with
rigorous imprisonment for a term which shall not be less
G
than twenty years=, but which may extend to imprisonment
for life, which shall mean the remainder of thafperson's
natural life, or with death".
Therefore a person, who commits an offence punishable under
H sub-section (1) and sub-section (2) of Section 376 and causes
SHAN KAR Kl SAN RAO KHADE v. STATE OF 1007
MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
death shall be punishable with rigorous imprisonment for a term A
which shall not be less than twenty years but which my extend
to imprisonment for life, which shall mean the remainder of that
person's natural life or with death.
54. Considering the entire facts and circumstances of the
B
case, I am inclined to convert death sentence awarded to the
accused to rigorous imprisonment for life and that all the
sentences awarded will run consecutively.
55. In my opinion, the case in hand calls for issuing the
following directions to various stake-holders for due compliance: c
(1) The persons in-charge of the schools/educational
institutions, special homes, children homes, shelter
homes, hostels, remand homes, jails etc. or
wherever children are housed, if they come across 0
instances of sexual abuse or assault on a minor
child which they believe to have committed or come
to know that they are being sexually molested or
assaulted are directed to report those facts keeping
upmost secrecy to the nearest S.J.P.U. or local
E
police, and they, depending upon the gravity of the
complaint and its genuineness, take appropriate
follow up action casting no stigma to the child or to
the family members.
(2) Media personals, persons in charge of Hotel, F
lodge, hospital, clubs, studios, photograph facilities
have to duly comply with the provision of Section
20 of the Act 32 of 2012 and provide information
to the S.J.P.U., or local police. Media has to strictly
comply with Section 23 of the Act as well. G
(3) Children with intellectual disability are more
vulnerable to physical, sexual and emotional abuse.
Institutions which house them or persons in care
and protection, come across any act of sexual
H
1008 SUPREME COURT REPORTS [2013] 6 S.C.R.
A abuse, have a duty to bring to the notice of the J.J.
Board/S.J.P.U. or local police and they in turn be
in touch with the competent authority and take
appropriate action.
(4) Further, it is made clear that if the perpetrator of the
B
crime is a family member himself, then utmost care
be taken and further action be taken in consultation
with the mother or other female members of the
family of the child, bearing in mind the fact that best
interest of the child is of paramount consideration.
c
(5) Hospitals, whether Government or privately owned
or medical institutions where children are being
treated come to know that children admitted are
subjected to sexual abuse, the same will
D immediately be reported to the nearest J.J. Board/
SJPU and the JJ Board, in consultation with SJPU,
should take appropriate steps in accordance with
the law safeguarding the interest of child.
(6) The non-reporting of the crime by anybody, after
E
having come to know that a minor child below the
age of 18 years was subjected to any sexual
assault, is a serious crime and by not reporting they
are screening offenders from legal punishment and
hence be held liable under the ordinary criminal law
F and prompt action be taken against them, in
accordance with law.
(7) Complaints, if any, received by NCPCR, S.C.P.C.R.
Child Welfare Committee (CWC) and Child
G Helpline, NGO's or Women's Organizations etc.,
they may take further follow up action in consultation
with the nearest J.J. Board, S.J.P.U. or local police
in accordance with law.
(8) The Central Government and the State
H
SHAN KAR KISANRAO KHADE v. STATE OF 1009
MAHARASHTRA
Governments are directed to constitute SJPUs in A
all the Districts, if not already constituted and they
have to take prompt and effective action in
consultation with J. J. Board to take care of child
and protect the child and also take appropriate
steps against the perpetrator of the crime. B
(9} The Central Government and every State
Government should take all measures as provided
under Section 43 of the Act 32/2012 to give wide
publicity of the provisions of the Act through media C
including television, radio and print media, at
regular intervals, to make the general public,
children as well as their parents and guardians,
aware of the provisions of the Act.
56. Criminal appeals stand dismissed and the death D
sentence awarded to the accused is converted to that of
rigorous imprisonment for life and that all the sentences
awarded will run consecutively.
MADAN B. LOKUR, J. 1. While entirely agreeing with my E
learned Brother Justice Radhakrishnan that the conviction of
the appellant must be upheld and that all sentences awarded
to him must run consecutively, I feel it necessary to draw
attention to the views expressed by this Court on awarding
death penalty or converting it to imprisonment for life in cases
concerning rape and murder.
F
Element of subjectivity:
2. In Swamy Shraddananda (2) v. State of Karnataka,
(2008} 13 SCC 767 this Court noted in paragraph 44 of the G
Report that the expression "the rarest of rare cases" in Bachan
Singh v. State of Punjab, (1980) 2 SCC 684 indicates a
relative category based on a comparison with other cases. In
paragraph 45 of the Report, this Court considered the
expression as requiring a comparison between (i} cases of H
1010 SUPREME COURT REPORTS [2013] 6 S.C.R.
A murder with other cases of murder of the same or of a similar
kind or even of a graver nature and (ii) the punishment awarded
to the convicts in those cases. This Court also expressed the
view that there is hardly any field available for comparison. In
other words, this Court highlighted the difficulty in the practical
B application of the "rarest of rare" principle since there is a lack
of empirical data for making the two-fold comparison.
3. The question therefore is: how does one determine that
a case is rare as compared to another case? If such a
comparison were possible, then on a relative basis could a
C particular case be described as rarer than an identified rare
case? It is this inability to make a comparative evaluation and
clarity on the issue due to a lack of information and any detailed
study that the application of the rarest of rare principle becomes
extremely delicate thereby making the awarding of a death
D sentence subjective as mentioned in Swamy Shraddananda
or judge-centric as mentioned in Sangeet v. State of Haryana,
2013 (2) sec 452.
Corridor of uncertainty:
E
4. My learned Brother Justice Radhakrishnan has put in
great efforts in analyzing a species of cases (of which I am sure
there would be many more) in which the victim was raped and
murdered. These cases fall in two categories, namely, those
in which the death penalty has been confirmed by this Court
F and those in which it has been converted to life imprisonment.
In my view, there is a third category consisting of cases (which
cannot be overlooked in the overall context of a sentencing
policy) in which this Court has, while awarding a sentence of
imprisonment for life, arrived at what is described as a via
G media and in which a fixed term of imprisonment exceeding
14 or 20 years (with or without remissions) has been awarded
instead of a death penalty, or in which the sentence awarded
has been consecutive and not concurrent.
H 5. For the present purposes, I will first refer to those
SHANKAR KISANRAO KHADE v. STATE OF 1011
MAHARASHTRA [MADAN B. LOKUR, J.]
somewhat recent cases (say over the last about 15 years) A
where the death penalty was converted to imprisonment for life
and cull out the main reasons for commuting it. However, it is
necessary to enter two caveats: Firstly, the Constitution Bench
in Bachan Singh has concluded in paragraph 164 of the
Report that normally the punishment for murder is life B
imprisonment and a death penalty may be imposed only if there
are special reasons for doing so. In other words, special
reasons are required to be recorded not for awarding life
imprisonment but for awarding death sentence. This is what the
Constitution Bench held: c
"The normal rule is that the offence of murder shall be
punished with the sentence of life imprisonment. The court
can depart from that rule and impose the sentence of death
only if there are special reasons for doing so. Such
reasons must be recorded in writing before imposing the D
death sentence."
6. It was further held in paragraph 209 of the Report that
the normal rule is of awarding life sentence but death sentence
may be awarded only if the alternative of life sentence is E
unquestionably foreclosed. The Constitution Bench held:
"It is, therefore, imperative to voice the concern that courts,
aided by the broad illustrative guide-lines indicated by us,
will discharge the onerous function with evermore
scrupulous care and humane concern, directed along the F
highroad of legislative policy outlined in Section 354(3) viz.
that for persons convicted of murder, life imprisonment is
the rule and death sentence an exception. A real and
abiding concern for the dignity of human life postulates
resistance to taking a life through law's instrumentality. That G
ought not to be done save in the rarest of rare cases when
the alternative option is unquestionably foreclosed."
7. Strictly speaking, therefore, this Court is not required to
record reasons for commuting the death sentence to one of life H
1012 SUPREME COURT REPORTS [2013] 6 S.C.R.
A imprisonment - it is only required to record reasons for either
confirming the death sentence or awarding it.
8. Secondly, though a sentence awarded by this Court
relates to a specific case, nevertheless an exercise needs to
be undertaken to identify some jurisprudential principle for
8
awarding the death penalty. It is in this context that the present
exercise has been undertaken. It is possible that the cases
discussed are not exhaustive of the "rape and murder'' category
and perhaps some may have been left out of the discussion
but the general principles or guidelines would be discernible
C from this exercise of finding a way through the existing corridor
of uncertainty in sentencing.
Cases where the death penalty has been converted to
imprisonment for life:
D
9. State of Tamil Nadu v. Suresh, (1998) 2 SCC 372 was
a case of the rape and murder of a pregnant housewife. This
Court took the view that though the crime was dastardly and
the victim was a young pregnant housewife, it would not be
E appropriate to award the death penalty since the High Court
had not upheld the conviction and also due to the passage of
time. This is what was observed:
"The above discussion takes us to the final conclusion that
the High Court has seriously erred in upsetting the
F conviction entered by the Sessions Court as against A-2
and A-3. The erroneous approach has resulted in
miscarriage of justice by allowing the two perpetrators of
a dastardly crime committed against a helpless young
pregnant housewife who was sleeping in her own
G apartment with her little baby sleeping by her side and
during the absence of her husband. We strongly feel that
the error committed by the High Court must be undone by
restoring the conviction passed against A-2 and A-3,
though we are not inclined, at this distance of time, to
H
SHAN KAR Kl SAN RAO KHADE v. STATE OF 1013
MAHARASHTRA [MADAN B. LOKUR, J.)
restore the sentence of death passed by the trial court on A
those two accused."
10. Nirma/ Singh v. State of Haryana, (1999) 3 SCC 670
was a case in which Dharampal had raped P and was convicted
for the offence. Pending an appeal the convict was granted bail. 8
While on bail, Dharampal along with Nirmal Singh murdered
five members of P's family. Death penalty was awarded to
Dharampal and Nirmal Singh by the Trial Court and confirmed
by the High Court. This Court converted the death sentence in
the case of Nirmal Singh to imprisonment for life since he had C
no criminal antecedents; there was no possibility of his
committing criminal acts of violence; he would not continue
being a threat to society; and he was not the main perpetrator
of the crime. It was held:
"There is nothing on record to suggest that Nirmal was D
having any past criminal antecedents or that there is a
possibility that the accused would commit criminal acts of
violence and would constitute a continuing threat to the
society. The only aggravating circumstance is that he had
come with his brother and had given 3 blows on deceased E
Krishna only after Dharampal chased Krishna and gave
kulhari blows hitting on the neck while Krishna was running
and on sustaining that blow, she fell down and then
Dharampal gave two to three blows to Krishna and only
thereafter Nirmal gave burchi blows on the said Krishna. F
It is no doubt true that the presence of Nirmal at the scene
of the occurrence with a burchi in his hand had
emboldened Dharampal to take the drastic action of
causing murder of 5 persons of Tale's family as a result of
which Tale's family was totally wiped off. But because of G
the fact that Nirmal has not assaulted any other person and
assaulted Krishna only after Dharampal had given her 3
or 4 blows, the case of Nirmal cannot be said to be the
rarest of rare case attracting the extreme penalty of death.
While, therefore, we uphold his conviction under Sections
H
1014 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 302/34, we commute his sentence of death into
imprisonment for life."
11. Kumudi Lal v. State of Uttar Pradesh, (1999) 4 SCC
108 was a case of rape and murder of a 14 year old. This Court
was of the view that the applicability of the rarest of rare
8
principle did not arise in this case apparently because the crime
had no 'exceptional' feature. This Court noted as follows:
"The circumstances indicate that probably she (the victim)
was not unwilling initially to allow the appellant to have
C some liberty with her. The appellant not being able to resist
his urge for sex went ahead in spite of her unwillingness
for a sexual intercourse who offered some resistance and
started raising shouts at that stage. In order to prevent her
from raising shouts the appellant tied the salwar around
D her neck which resulted in strangulation and her death. We,
therefore, do not consider this to be a fit case in which the
extreme penalty of death deserves to be imposed upon
the appellant."
E 12. Akhtar v. State of Uttar Pradesh, (1999) 6 SCC 60
was a case of rape and murder of a young girl. The sentence
of death awarded to the accused was converted to one of life
imprisonment since he took advantage of finding the victim
alone in a lonely place and her murder was not premeditated.
It was observed:
F
"But in the case in hand on examining the evidence of the
three witnesses it appears to us that the accused-appellant
has committed the murder of the deceased girl not
intentionally and with any premeditation. On the other hand
G the accused-appellant found a young girl alone in a lonely
place, picked her up for committing rape; while committing
rape and in the process by way of gagging the girl has
died. The medical evidence also indicates that the death
is on account of asphyxia. In the circumstances we are of
H the considered opinion that the case in hand cannot be
SHANKAR KISANRAO KHADE v. STATE OF 1015
MAHARASHTRA [MADAN B. LOKUR, J.]
held to be one of the rarest of rare cases justifying the A
punishment of death."
13. In State of Maharashtra v. Suresh, (2000) 1 SCC 471
death penalty was not awarded to the accused since he had
been acquitted by the High Court, even though the case was
B
said to be "perilously near" to falling within the category of rarest
of rare cases. The test of whether the lesser option was
"unquestionably foreclosed" was adopted by this Court, which
held:
"We, therefore, set aside the impugned judgment and C
restore the conviction passed by the trial court. Regarding
sentence we would have concurred with the Sessions
Court's view that the extreme penalty of death can be
chosen for such a crime, but as the accused was once
acquitted by the High Court we refrain from imposing that D
extreme penalty in spite of the fact that this case is
perilously near the region of "rarest of the rare cases"
envisaged by the Constitution. Bench in Bachan Singh v.
State of Punjab. However, the lesser option is not
unquestionably foreclosed and so we alter the sentence, E
in regard to the offence under Section 302 IPC, to
imprisonment for life."
14. In Mohd. Chaman v. State (NCT of Delhi), (2001) 2
sec 28 the accused, a 30 year old man, had raped and killed
a one and a half year old child. Despite concluding that the F
crime was serious and heinous and that the accused had a dirty
and perverted mind, this Court converted the death penalty to
one of imprisonment for life since he was not such a dangerous
person who would endanger the community and because it was
not a case where there was no alternative but to impose the G
death penalty. It was also held that a humanist approach should
be taken in the matter of awarding punishment. It was held:
"Coming to the case in hand, the crime committed is
undoubtedly serious and heinous and the conduct of the H
1016 SUPREME COURT REPORTS [2013] 6 S.C.R.
A appellant is reprehensible. It reveals a dirty and perverted
mind of a human being who has no control over his carnal
desires. Then the question is: Whether the case can be
classified as of a "rarest of rare" category justifying the
severest punishment of death. Treating the case on the
B touchstone of the guidelines laid down in Bachan Singh,
Machhi Singh [(1983) 3 SCC 470] and other decisions
and balancing the aggravating and mitigating
circumstances emerging from the evidence on record, we
are not persuaded to accept that the case can be
c appropriately called one of the "rarest of rare cases"
deserving death penalty. We find it difficult to hold that the
appellant is such a dangerous person that to spare his life
will endanger the community. We are also not satisfied that
the circumstances of the crime are such that there is no
alternative but to impose death sentence even after
D
according maximum weightage to the mitigating
circumstances in favour of the offender. It is our considered
view that the case is one in which a humanist approach
should be taken in the matter of awarding punishment."
E 15. Raju v. State of Haryana, (2001) 9 SCC 50 was a
case in which this Court took into account three factors for
converting the death sentence of the accused to imprisonment
for life for the rape and murder of an eleven year old child.
Firstly, the murder was committed without any premeditation
F (however, there is no mention about the rape being not
premeditated); secondly, the absence of any criminal record of
the accused; and thirdly, there being nothing to show that the
accused could be a grave danger to society. This is what was
said:
G "[T]he evidence on record discloses that the accused was
not having an intention to commit the murder of the girl who
accompanied him. On the spur of the moment without there
being any premeditation, he gave two brick-blows which
caused her death. There is nothing on record to indicate
H
SHANKAR KISANRAO KHADE v. STATE OF 1017
MAHARASHTRA [MADAN B. LOKUR, J.]
that the appellant was having any criminal record nor can A
he be said to be a grave danger to the society at large. In
these circumstances, it would be difficult to hold that the
case of the appellant would be rarest of rare case justifying
imposition of death penalty."
B
16. In Bantu v. State of Madhya Pradesh, (2001) 9 SCC
615 this Court converted the death sentence awarded to the
accused to imprisonment for life. The accused was a 22 year
old man who had raped and murdered a 6 year old child. It was
acknowledged that the rape and murder was heinous, but this C
Court took into account that the accused had no previous
criminal record and that he would not be a grave danger to
society at large. On this basis, the death penalty was converted
to life imprisonment. This is what was said:
"In the present case, there is nothing on record to indicate D
that the appellant was having any criminal record nor can
it be said that he will be a grave danger to the society at
large. It is true that his act is heinous and requires to be
condemned but at the same time it cannot be said that it
is the rarest of the rare case where the accused requires E
to be eliminated from the society. Hence, there is no
justifiable reason to impose the death sentence."
17. In State of Maharashtra v. Bharat Fakira Dhiwar,
(2002) 1 SCC 622 this Court converted the death sentence to
F
imprisonment for life since the accused was acquitted by the
High Court and imprisonment for life was not unquestionably
foreclosed. This is what this Court held:
"Regarding sentence we would have concurred with the
Sessions Court's view that the extreme penalty of death G
can be chosen for such a crime. However, as the accused
was once acquitted by the High Court we refrain from
imposing that extreme penalty in spite of the fact that this
case is perilously near the region of "rarest of the rare
cases", as envisaged by the Constitution Bench in Bachan H
1018 SUPREME COURT REPORTS [2013) 6 S.C.R.
A Singh v. State of Punjab. However, the lesser option is
not unquestionably foreclosed and so we alter the
sentence, in regard to the offence under Section 302 IPC,
to imprisonment for life."
B 18. In Amit v. State of Maharashtra, (2003) 8 SCC 93 the
death penalty awarded to the accused for the rape and murder
of an eleven year old child was converted to imprisonment for
life for the reason that he was a young man of 20 years when
the incident occurred; he had no prior record of any heinous
C crime; and there was no evidence that he would be a danger
to society. This Court held:
"The next question is of the sentence. Considering that the
appellant is a young man, at the time of the incident his
age was about 20 years; he was a student; there is no
D record of any previous heinous crime and also there is no
evidence that he will be a danger to the society, if the death
penalty is not awarded. Though the offence committed by
the appellant deserves severe condemnation and is a
most heinous crime, but on cumulative facts and
E circumstances of the case, we do not think that the case
falls in the category of rarest of the rare cases. We hope
that the appellant will learn a lesson and have an
opportunity to ponder over what he did during the period
he undergoes the life sentence."
F 19. Surendra Pal Shivbalakpa/ v. State of Gujarat, (2005)
3 sec 127 was a case in which the death penalty awarded to
the accused who had raped a minor child, was converted to
life imprisonment considering the fact that he was 36 years old
and there was no evidence of the accused being involved in
G · any other case and there was no material to show that he would
be a menace to society. It was held:
"The next question that arises for consideration is whether
this is a "rarest of rare case"; we do not think that this is a
H "rarest of rare case" in which death penalty should be
SHANKAR KISANRAO KHADE v. STATE OF 1019
MAHARASHTRA [MADAN B. LOKUR, J.]
imposed on the appellant. The appellant was aged 36 A
years at the time of the occurrence and there is no
evidence that the appellant had been involved in any other
criminal case previously and the appellant was a migrant
labourer from U.P. and was living in impecunious
circumstances and it cannot be said that he would be a B
menace to society in future and no materials are placed
before us to draw such a conclusion. We do not think that
the death penalty was warranted in this case."
20. In State of Maharashtra v. Mansingh, (2005) 3 SCC
131 the accused was acquitted by the High Court of the offence C
of rape and murder of the victim. In a brief order, this Court
noted this fact as well as the fact that this was a case of
circumstantial evidence and, therefore, the death sentence was
converted to imprisonment for life to meet the ends of justice.
It was observed: D
"Now the question which arises is as to whether the present
case would come within the ambit of rarest of the rare
case. In the facts and circumstances of the case, we are
of the view that the trial court was not justified in imposing E
extreme penalty of death against the respondent and ends
of justice would be met in case the sentence of life
imprisonment is awarded against the respondent."
21. Rahu/ v. State of Maharashtra, (2005) 10 SCC 322
was a case of the rape and murder of a four and a half year F
old child by the accused. The death sentence awarded to him
was converted by this Court to one of life imprisonment since
the accused was a young man of 24 years when the incident
occurred; apparently his behavior in custody was not
uncomplimentary; he had no previous criminal record; and G
would not be a menace to society. It was held:
"We have considered all the relevant aspects of the case.
It is true that the appellant committed a serious crime in a
very ghastly manner but the fact that he was aged 24 years H
1020 SUPREME COURT REPORTS [2013] 6 S.C.R.
A at the time of the crime, has to be taken note of. Even
though, the appellant had been in custody since 27-11-
1999 we are not furnished with any report regarding the
appellant either by any probationary officer or by the jail
authorities. The appellant had no previous criminal record,
B and nothing was brought to the notice of the Court. It cannot
be said that he would be a menace to the society in future.
Considering the age of the appellant and other
circumstances, we do not think that the penalty of death
be imposed on him."
C 22. In Amrit Singh v. State of Punjab, (2006) 12 SCC 79
a 6 or 7 year old child was raped and murdered by a 31 year
old. This Court took the view that though the rape may be brutal
and the offence heinous, "it could have been a momentary
lapse" on the part of the accused and was not premeditated.
D The victim died "as a consequence of and not because of any
overt act" by the accused. Consequently, the case did not fall
in the category of rarest of rare cases. It was held:
"The opinion of the learned trial Judge as also the High
Court that the appellant being aged about 31 years and
E
not suffering from any disease, was in a dominating
position and might have got her mouth gagged cannot be
held to be irrelevant. Some marks of violence not only on
the neck but also on her mouth were found. Submission
of Mr Agarwal, however, that the appellant might not have
F
an intention to kill the deceased, thus, may have some
force. The death occurred not as a result of strangulation
but because of excessive bleeding. The deceased had
bleed half a litre of blood. Dr. Reshamchand Singh, PW 1
did not state that injury on the neck could have contributed
G to her death. The death occurred, therefore, as a
consequence of and not because of any specific overt act
on the part of the appellant.
"Imposition of death penalty in a case of this nature, in our
H opinion, was, thus, improper. Even otherwise, it cannot be
SH~NKAR KISANRAO KHADE v. STATE OF 1021
MAHARASHTRA [MADAN B. LOKUR, J.]
said to be a rarest of rare cases. The manner in which the A
deceased was raped may be brutal but it could have been
a momentary lapse on the part of the appellant, seeing a
lonely girl at a secluded place. He had no premeditation
for commission of the offence. The offence may look
heinous, but under no circumstances, can it be said to be B
a rarest of rare cases."
23. Bishnu Prasad Sinha v. State of Assam, (2007) 11
sec 467 was a case concerning the rape and murder of a child
aged about 7 or 8 years by two accused persons. The death C /
penalty awarded to them was converted to life imprisonment
since the conviction was based on circumstantial evidence and
appellant No.1 had expressed remorse in his statement under
Section 313 of the Code of Criminal Procedure and admitted
his guilt. It appears that the second accused either did not admit
his guilt or express any remorse. This Court held: D
'The question which remains is as to what punishment
should be awarded. Ordinarily, this Court, having regard
to the nature of the offence, would not have differed with
the opinion of the learned Sessions Judge as also the High E
Court in this behalf, but it must be borne in mind that the .
appellants are convicted only on the basis of the
circumstantial evidence. There are authorities for the
proposition that if the evidence is proved by circumstantial
evidence, ordinarily, death penalty would not be awarded. F
Moreover, Appellant No.1 showed his remorse and
repentance even in his statement under Section 313 of the
Code of Criminal Procedure. He accepted his guilt."
24. Santosh Kumar Singh v. State, (2010) 9 SCC 747
was a case in which the sentence of death was converted to G
life imprisonment by this Court since the accused had been
acquitted by the Trial Court and the High Court had reversed
the acquittal on circumstantial evidence. The accused was
young man of 24 years when the incident occurred; he had got
married in the meanwhile and had a daughter; his father had H
1022 SUPREME COURT REPORTS [2013] 6 S.C.R.
A died a year after his conviction; his family faced a dismal future;
and there was nothing to suggest that he was not capable of
reform. It was held:
"Furthermore, we see that the mitigating circumstances
need to be taken into account, more particularly that the
B
High Court has reversed a judgment of acquittal based on
circumstantial evidence. The appellant was a young man
of 24 at the time of the incident and, after acquittal, had
got married and was the father of a girl child. Undoubtedly
also, the appellant would have had time for reflection over
c the events of the last fifteen years, and to ponder over the
predicament that he now faces, the reality that his father
died a year after his conviction and the prospect of a
dismal future for his young family. On the contrary, there is
nothing to suggest that he would not be capable of reform.
D
"There are extremely aggravating circumstances as well.
In particular we notice the tendency of parents to be
overindulgent to their progeny often resulting in the most
horrendous of situations. These situations are exacerbated
E when an accused belongs to a category with unlimited
power or pelf or even more dangerously, a volatile and
heady cocktail of the two. The reality that such a class does
exist is for all to see and is evidenced by regular and
alarming incidents such as the present one.
F "Nevertheless, to our mind, the balance sheet tilts
marginally in favour of the appellant, and the ends of justice
would be met if the sentence awarded to him is commuted
from death to life imprisonment under Section 302 of the
Penal Code; the other part of the sentence being retained
G as it is."
25. Rameshbhai Chandubhai Rathod (2) v. State of
Gujarat, (2011) 2 sec 764 was an unusual case in as much
as the two learned Judges hearing the case had differed on
H the sentence to be awarded. Accordingly tho matter was
SHAN KAR KISANRAO KHADE v. STATE OF 1023
MAHARASHTRA [MADAN B. LOKUR, J.]
referred to a larger Bench which noted that the accused was A
about 28 years of age and had raped and killed a child studying
in a school in Class IV. The accused was awarded a sentence
of imprisonment for life subject to remissions and commutation
at the instance of the Government for good and sufficient
reasons. It was held as follows: B
"Both the Hon'ble Judges have relied extensively on
Dhananjoy Chatte!jee case ((1994) 2 SCC 220]. In this
case the death sentence had been awarded by the trial
court on similar facts and confirmed by the Calcutta High
Court and the appeal too dismissed by this Court leading C
to the execution of the accused. Ganguly, J. has, however,
drawn a distinction on the facts of that case and the
present one and held that as tl'le appellant was a young
man, only 27 years of age, it was obligatory on the trial
court to have given a finding as to a possible rehabilitation D
and reformation and the possibility that he could still
become a useful member of society in case he was given
a chance to do so.
"We are, therefore, of the opinion that in the light of the E
findings recorded by Ganguly, J. it would not be proper to
maintain the death sentence on the appellant. ... "
26. Incidentally, Dhananjoy Chatterjee was also 27 years· ·
of age when he committed the offence of rape and murder,
while Rameshbhai Chandubhai Rathod was 28 years of age F
when he committed the offence.
27. In Haresh Mohandas Rajput v. State of Maharashtra,
(2011) 12 sec 56 the Trial Court had awarded life sentence
to the accused for the rape and murder of a 10 year old child G
but the High Court enhanced it to a sentence of death. Taking
into account the view of the Trial Court, this Court converted the
death sentence to one of life imprisonment. It was observed:
"So far as the sentence part is concerned, in view of the
H
1024 SUPREME COURT REPORTS [2013] 6 S.C.R.
A law referred to hereinabove, we are of the considered
opinion that the case does not fall within the "rarest of rare
cases". The High Court was not justified in enhancing the
punishment. Thus, in the facts and circumstances of the
case, we set aside the punishment of death sentence
B awarded by the High Court and restore the sentence of life
imprisonment awarded by the trial court. With this
modification, the appeals stand disposed of."
28. In Amit v. State of Uttar Pradesh, (2012) 4 SCC 107
the death penalty awarded to the accused for the rape and
C murder of a 3 year old child was converted to imprisonment for
life since the accused was a young man of 28 years when he
committed the offence; he had no prior history of any heinous
offence; there was nothing to suggest that he would repeat such
a crime in future; and given a chance, he may reform. This Court
D sentenced him to life imprisonment subject to remissions or
commutation. This Court held:
"In the present case also, we find that when the appellant
committed the offence he was a young person aged about
28 years only. There is no evidence to show that he had
E
committed the offences of kidnapping, rape or murder on
any earlier occasion. There is nothing on evidence to
suggest that he is likely to repeat similar crimes in future.
On the other hand, given a chance he may reform over a
period of years. Hence, following the judgment of the three-
F
Judge Bench in Rameshbhai Chandubhai Rathod (2) v.
State of Gujarat, we convert the death sentence awarded
to the appellant to imprisonment for life and direct that the
life sentence of the appellant will extend to his full life
subject to any remission or commutation at the instance
G of the Government for good and sufficient reasons."
Broad analysis:
29. A study of the above cases suggests that there are
H several reasons, cumulatively taken, for converting the death
SHAN KAR KISANRAO KHADE v. STATE OF 1025
MAHARASHTRA [MADAN B. LOKUR, J.)
penalty to t~t of imprisonment for life. However, some of the A
factors that have had an influence in commutation include (1)
the young age of the accused (Amit v. State of Maharashtra
aged 20 years, Rahul aged 24 years, Santosh Kumar Singh
aged 24 years, Rameshbhai Chandubhai Rathod (2) aged 28
years and Amit v. State of Uttar Pradesh aged 28 years); (2) B
the possibility of reforming and rehabilitating the accused
(Santosh Kumar Singh and Amit v. State of Uttar Pradesh the
accused, incidentally, were young when they committed the
crime); (3) the accused had no prior criminal record (Nirmal
Singh, Raju, Bantu, Amit v. State of Maharashtra, Surendra c
Pal Shivbalakpal, Rahul and Amit v. State of Uttar Pradesh);
(4) the accused was not likely to be a menace or threat or
danger to society or the community (Nirmal Singh, Mohd.
Chaman, Raju, Bantu, Surendra Pal Shivbalakpal, Rahul and
Amit v. State of Uttar Pradesh). A few other reasons need to 0
be mentioned such as the accused having been acquitted by
ona.,the Courts (State of Tamil Nadu v. Suresh, State of
Maharashtra v. Suresh, Bharat Fakira Dhiwar, Mansingh and
Santosh Kumar Singh); the crime was not premeditated
(Kumudi Lal, Akhtar, Raju and Amrit Singh); the case was one E
of circumstantial evidence (Mansingh and Bishnu Prasad
Sinha). In one case, commutation was ordered since there was
apparently no 'exceptional' feature warranting a death penalty
(Kumudi Lal) and in another case because the Trial Court had
awarded life sentence but the High Court enhanced it to death
(Haresh Mohandas Rajput). F
Cases where the death penalty has been confirmed:
30. Jumman Khan v. State of Uttar Pradesh, (1991) 1
SCC 752 was a case in which the death penalty was confirmed G
by this Court for the rape and murder of a 6 year old child on
the basis of the brutality of .the crime and on circumstantial
evidence. This Court quoted the order dismissing the special
leave petition of the accused against his conviction, in which it
was said:
H
1026 SUPREME COURT REPORTS [2013] 6 S.C.R.
A "Although the conviction of the petitioner under Section 302
of the Indian Penal Code, 1860 rests on circumstantial
evidence, the circumstantial evidence against the petitioner
leads to no other inference except that of his guilt and
excludes every hypothesis of his innocence ........ .
B
Failure to impose a death sentence in such grave cases
where it is a crime against the society - particularly in
cases of murders committed with extreme brutality - will
bring to naught the sentence of death provided by Section
302 of the Indian Penal Code. It is the duty of the court to
c impose a proper punishment depending upon the degree
of criminality and desirability to impose such punishment.
The only punishment which the appellant deserves for
having committed the reprehensible and gruesome murder
of the innocent child to satisfy his lust, is nothing but death
D as a measure of social necessity and also as a means of
deterring other potential offenders. The sentence of death
is confirmed."
31. In Dhananjoy Chatterjee v. State of West Bengal,
E (1994) 2 SCC 220 this Court confirmed the death sentence of
the 27 year old married accused taking into consideration' the
rising crime graph, particularly violent crime against women;
society's cry for justice against criminals; and the fact that the
rape and murder of an 18 year old was premeditated and
F committed in a brutal manner by a security guard against a
young defenceless person to satisfy his lust and in retaliation
for a complaint made by her against him. This is what this Court
had to say:
"In recent years, the rising crime rate - particularly violent
G crime against women has made the criminal sentencing
by the courts a subject of concern ......... .
"In our opinion, the measure of punishment in a given case
must depend upon the atrocity of the crime; the conduct
H of the criminal and the defenceless and unprotected state
SHAN KAR Kl SAN RAO KHADE v. STATE OF 1027
MAHARASHTRA [MADAN 8. LOKUR, J.]
of the victim. Imposition of appropriate punishment is the A
manner in which the courts respond to the society's cry for
justice against the criminals. Justice demands that courts
should impose punishment befitting the crime so that the
courts reflect public abhorrence of the crime. The courts
must not only keep in view the rights of the criminal but also B
the rights of the victim of crime and the society at large
while considering imposition of appropriate punishment.
"The sordid episode of the security guard, whose sacred
duty was to ensure the protection and welfare of the C
inhabitants of the flats in the apartment, should have
subjected the deceased, a resident of one of the flats, to
gratify his lust and murder her in retaliation for his transfer
on her complaint, makes the crime even more heinous.
Keeping in view the medical evidence and the state in
which the body of the deceased was found, it is obvious D
that a most heinous type of barbaric rape and murder was
committed on a helpless and defenceless school-going
girl of 18 years ........ "
32. In Laxman Naik v. State of Orissa, (1994) 3 SCC 381 E
this Court was of the opinion that since the accused was the
guardian of the helpless victim, his 7 year old niece, and since
the crime was pre-planned, cold blooded, brutal and diabolical,
the appropriate punishment would be a sentence of death. This
Court held: F
"The hard facts of the present case are that the appellant
Laxman is the uncle of the deceased and almost occupied
the status and position that of a guardian. Consequently
the victim who was aged about 7 years must have reposed
complete confidence in the appellant and while reposing G
such faith and confidence in the appellant must have
believed in his bona fides and it was on account of such
a faith and belief that she acted upon the command of the
appellant in accompanying him under the impression that
she was being taken to her village unmindful of the H
1028 SUPREME COURT REPORTS [2013] 6 S.C.R.
A preplanned unholy designs of the appellant. The victim was
a totally helpless child there being no one to protect her in
the desert where she was taken by the appellant misusing
her confidence to fulfil his lust. It appears that the appellant
had preplanned to commit the crime by resorting to
B diabolical methods and it was with that object that he took
the girl to a lonely place to execute his dastardly act."
33. Kamta Tiwari v. State of Madhya Pradesh, (1996) 6
SCC 250 was a case where the accused was close to the family
C of the victim, a 7 year old child. In fact, she would address him
as 'Uncle Tiwari'. He was, therefore, in the nature of a person
of trust, while the victim was in a hapless condition and was
brutally raped and murdered in a premeditated manner. This
Court held:
D "Taking an overall view of all the facts and circumstances
of the instant case in the light of the above propositions
we are of the firm opinion that the sentence of death should
be maintained. In vain we have searched for mitigating
circumstances - but found aggravating circumstances
E aplenty....... When an innocent hapless girl of 7 years was
subjected to such barbaric treatment by a person who was
in a position of her trust his culpability assumes the
proportion of extreme depravity and arouses a sense of
revulsion in the mind of the common man. In fine, the
F motivation of the perpetrator, the vulnerability of the victim,
the enormity of the crime, the execution thereof persuade
us to hold that this is a "rarest of rare" cases where the
sentence of death is eminently desirable not only to deter
others from committing such atrocious crimes but also to
give emphatic expression to society's abhorrence of such
G
crimes."
34. Nirmal Singh v. State of Haryana, (1999) 3 SCC 670
has already been referred to above. One of the accused
Dharampal, had been convicted for rape and had filed an
H appeal. Pending the appeal, he applied for and was granted
SHANKAR KISANRAO KHADE v. STATE OF 1029
MAHARASHTRA [MADAN 8. LOKUR, J.]
bail. While on bail, he killed five members of the family who had A
given evidence against him in the case for which he was
convicted of rape, thereby carrying out the threat he had earlier
given. The crime was pre-planned and executed in a brutal
manner. Confirming the death penalty awarded to him, this
Court held: B
" ...... Coming to the question of sentence, however, we
find that the High Court has not considered the individual
role played by each of the appellants. So far as accused
Dharampal is concerned, it is he who had given the threat C
on the previous occasion that if anybody gives evidence
in the rape case, the whole family will be wiped off. It is he
who after being convicted in the said rape case preferred
an appeal and obtained a bail from the High Court and has
totally misutilised that privilege of bail by killing 5 persons
who were all the members of the family of P whose D
deposition was responsible for his conviction in the rape
case. It is he who has assaulted each of the 5 deceased
persons by means of a kulhari and the nature of the injuries
as found by the doctor would indicate that the act is an act
of a depraved mind and is most brutal and heinous in E
nature. It is he who had consecrated the plan to put into
action his earlier threat but he has taken the help of his
brother Nirmal."
35. Jai Kumar v. State of Madhya Pradesh, (1999) 5 SCC F
1 was a case in which the death penalty was confirmed since
this Court accepted the view of the High Court that the accused
was a "living danger" and incapable of rehabilitation. The crime
was that of an attempted rape of a 30 year old pregnant woman
followed by her murder and the murder of her 8 year old child. G
This Court held that the crime was brutal and committed in a
gruesome and depraved manner. The fact that the accused was
a young man of 22 years was held not to be a relevant factor,
given the nature of the crime. The judicial conscience of this
Court was shocked by the facts of the case. It was held:
H
1030 SUPREME COURT REPORTS [2013] 6 S.C.R.
A " ..... [W]e are unable to record our concurrence with the
submissions of Mr Muralidhar that there are some
mitigating circumstances and there is likelihood of the
accused being reformed or rehabilitated. Incidentally, the
High Court has described the accused as "a living danger''
B and we cannot agree more therewith in view of the
gruesome act as noticed above.
"The facts establish the depravity and criminality of the
accused in no uncertain terms. No regard being had for
the precious life of the young child also. The
c compassionate ground of the accused being 22 years of
age cannot in the facts of the matter be termed to be at
all relevant.. ....
"In the present case, the savage nature of the crime has
D shocked our judicial conscience. The murder was cold-
blooded and brutal without any provocation. It certainly
makes it a rarest of the rare cases in which there are no
extenuating or mitigating circumstances.
E 36. In Mo/ai & Anr. v. State of M.P., (1999) 9 SCC 581
death penalty awarded to both the accused for the rape and
murder of a 16 year old was confirmed. Molai was a guard in
a Central Jail and Santosh was undergoing a sentence in that
jail. The victim was the daughter of the Assistant Jailor. Taking
into account the manner of commission of the offence and the
F fact that they took advantage of the victim being alone in a
house, the death penalty was confirmed by this Court although
the case was one of circumstantial evidence. This Court held:
" ...... It cannot be overlooked that N, a 16-year-old girl,
G was preparing for her Class 10th examination at her house
and suddenly both the accused took advantage of she
being alone in the house and committed a most shameful
act of rape. The accused did not stop there but they
strangulated her by using her undergarment and thereafter
H took her to the septic tank along with the cycle and caused
SHANKAR KISANRAO KHADE v. STATE OF 1031
MAHARASHTRA [MADAN B. LOKUR, J.]
injuries with a sharp-edged weapon. The accused did not A
even stop there but they exhibited the criminality in their
conduct by throwing the dead body into the septic tank
totally disregarding the respect for a human dead body.
Learned counsel fa1 the accused (appellants) could not
point any mitigating circumstance from the record of the B
case to justify the reduction of sentence of either of the
accused." ·
37. State of Uttar i-Jradesh v. Satish, (2005) 3 SCC 114
is a remarkable case for the reason that the accused was
acquitted by the High Court and yet the death penalty awarded C
by the Trial Court was upheld by this Court for the rape and
murder of a school going child. The case was also one of
circumstantial evidence. The special reasons for awarding the
death penalty were the diabolic and inhuman nature of the
crime. It was held: D
"Considering the view expressed by this Court in Bachan
Singh case and Machhi Singh case we have no
hesitation in holding that the case at hand falls in the rarest
of rare category and death sentence awarded by the trial E
court was appropriate. The acquittal of the respondent-
accused is clearly unsustainable and is set aside. In the
ultimate result, the judgment of the High Court is set aside
and that of the trial court is restored. The appeals are
allowed." F
38. Shivu & Anr. v. Registrar General, High Court of
Kamataka, (2007) 4 sec 713 was a case in which the special
reasons for confirming the death penalty given to both the
accused who were aged about 20 and 22 years old
respectively were the heinous rape and murder of an 18 year G
old. It was noted that the accused had twice earlier attempted
to commit rape but were not successful. Though no case was
lodged against them, they were admonished by the village
elders and the Panchayat and asked to mend their ways. It was
·held: H
1032 SUPREME COURT REPORTS (2013] 6 S.C.R.
A "Considering the view expressed by this Court in Bachan
Singh case and Machhi Singh case we have no hesitation
in holding that the case at hand falls in rarest of rare
category and death sentence awarded by the trial court and
confirmed by the High Court was appropriate."
B
39. In Bantu v. State ofUttarPradesh, (2008) 11SCC113
the death sentence was confirmed for the special reason of the
depraved and heinous act of rape and murder of a 5 year old
child, which included the insertion of a wooden stick in her
vagina to the extent of 33 ems. to masquerade the crime as
C an accident. This Court held:
"The case at hand falls in the rarest of the rare category.
The depraved acts of the accused call for only one
sentence, that is, death sentence."
D
40. In Shivaji v. State of Maharashtra, (2008) 15 SCC 269
this Court categorically rejected the view that death sentence
cannot be awarded in a case where the evidence is
circumstantial. The death sentence was upheld also because
E of the depraved acts of the accused in raping and murdering
a 9 year old child. This Court held:
''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
F character in establishing the guilt of the accused, that
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
G circumstances have to be balanced. In the balance sheet
of such circumstances, the fact that the case rests on
circumstantial evidence has no role to play......... .
"The case at hand falls in the rarest of the rare category.
The circumstances highlighted above establish the
H
SHANKAR KISANRAO KHADE v. STATE OF 1033
MAHARASHTRA [MADAN B. LOKUR, J.] ·
depraved acts of the accused, and they call for only one A
sentence, that is, death sentence."
41. In Ankush Maruti Shinde v. State of Maharashtra,
(2009) 6 SCC 667 of the six accused, three were awarded life
sentence by the High Court while for the remaining three, the B
death sentence was confirmed. The accused were found to
have committed five murders and had raped a lady (who
survived) and a child of 15 years of age (who died). This Court
awarded the death penalty to all the six accused. This Court
found the crime to be cruel and diabolic; the collective C
conscience of the community was shocked; the victims were
of a tender age and defenceless; the victims had no animosity
towards the accused and the attack against them was
unprovoked. Considering these factors, this Court awarded the
death penalty to all the accused and held:
D
"The murders were not only cruel, brutal but were diabolic.
The High Court has held that those who were guilty of rape
and murder deserve death sentence, while those who were
convicted for murder only were to be awarded life
sentence. The High Court noted that the whole incident is E
extremely revolting, it shocks the collective conscience of
the community and the aggravating circumstances have
outweighed the mitigating circumstances in the case of
accused persons 1, 2 and 4; but held that in the case of
others it was to be altered to life sentence. F
"The High Court itself noticed that five members of a family
were brutally murdered, they were not known to the accused
and there was no animosity towards them. Four of the
witnesses were of tender age, they were defenceless and
the attack was without any provocation. Some of them G
were so young that they could not resist any attack by the
accused. A minor girl of about fifteen years was dragged
to the open field, gang-raped and done to death.
"Above being the position, the appeals filed by the H
•
1034 SUPREME COURT REPORTS [2013] 6 S.C.R.
A accused persons deserve dismissal, which we direct and
the State's appeals deserve to be allowed. A-2, A-3 and
A-5 are also awarded death sentence. In essence all the
six accused persons deserve death sentence.'
42. B.A. Umesh v. Registrar General, High Court of
8
Kamataka, (2011) 3 sec 85 was a case of the rape and
murder of a lady, a mother of a 7 year old child. In the High
Court, there was a difference of opinion on the sentence to be
awarded - one of the learned judges confirmed the death
C penalty while the other learned judge was of the view that
imprisonment for life should be awarded. The matter was
referred to a third learned judge who agreed with the award of
a death penalty. This Court confirmed the death penalty since
the crime was unprovoked and committed in a depraved and
merciless manner; the accused was alleged to have been
D earlier and subsequently involved in criminal activity: he was a
menace to society and incapable of rehabilitation; the accused
did not feel any remorse for what he had done. It was held:
"On the question of sentence we are satisfied that the
E extreme depravity with which the offences were committed
and the merciless manner in which death was inflicted on
the victim, brings it within the category of the rarest of rare
cases which merits the death penalty, as awarded by the
trial court and confirmed by the High Court. None of the
F mitigating factors as were indicated by this Court in
Bachan Singh case or in Machhi Singh case are present
in the facts of the instant case. The appellant even made
up a story as to his presence in the house on seeing PW
2 Suresh, who had come there in the meantime. Apart from
the above, it is clear from the recoveries made from his
G
house that this was not the first time that he had committed
crimes in other premises also, before he was finally caught
by the public two days after the present incident, while
trying to escape from the house of one Seeba where he
made a similar attempt to rob and assault her and in the
H process causing injuries to her.
SHANKAR KISANRAO KHADE v. STATE OF 1035
MAHARASHTRA [MADAN B. LOKUR, J.]
"As has been indicated by the courts below, the A
antecedents of the appellant and his subsequent conduct
indicates that he is a menace to the society and is
incapable of rehabilitation. The offences committed by the
appellant were neither under duress nor on provocation
and an innocent life was snuffed out by him after B
committing violent rape on the victim. He did not feel any
remorse in regard to his actions, inasmuch as, within two
days of the incident he was caught by the local public while
committing an offence of a similar type in the house of one
Seeba." c
43. Mohd. Mannan v. State of Bihar, (2011) 5 SCC 317
- was a case which a 42 year old man had raped and killed a 7
year old child. This Court looked at the factors for awarding
death sentence both in the negative as well as in the positive
sense. It was held that the number of persons killed by the D
accused is not a decisive factor; nor is the mere brutality of the
crime decisive. However if the brutality of the crime shocks the
collective conscience of the community, one has to lean towards
the death penalty. Additionally, it is to be seen if the accused
is a menace to society and can be reformed or not. Applying E
these broad parameters, this Court held that the accused was
a mature man of 43 years; that he held a position of trust in
relation to the victim; that the crime was pre-planned; and that
the crime was, pre-planned, unprovoked and gruesome against
a defenceless child. It was held: F
" ....... The appellant is a matured man aged about 43
years. He held a position of trust and misused the same
in a calculated and pre-planned manner. He sent the girl
aged about 7 years to buy betel and few minutes thereafter G
in order to execute his diabolical and grotesque desire
proceeded towards the shop where she was sent. The girl
was aged about 7 years of thin built and 4 ft of height and
such a child was incapable of arousing lust in normal
situation. The appellant had wl>n the trust of the child and
H
1036 SUPREME COURT REPORTS [2013] 6 S.C.R.
A she did not understand the desire of the appellant which
would be evident from the fact that while she was being
taken away by the appellant no protest was made and the
innocent child was made prey of the appellant's lust.
''The post-mortem report shows various injuries on the face,
B
nails and body of the child. These injuries show the
gruesome manner in which she was subjected to rape. The
victim of crime is an innocent child who did not provide
even an excuse, much less a provocation for murder. Such
cruelty towards a young child is appalling. The appellant
c had stooped so low as to unleash his monstrous self on
the innocent, helpless and defenceless child. This act no
doubt had invited extreme indignation of the community
and shocked the collective conscience of the society. Their
expectation from the authority conferred with the power to
D adjudicate is to inflict the death sentence which is natural
and logical. We are of the opinion that the appellant is a
menace to the society and shall continue to be so and he
cannot be reformed."
E 44. In Rajendra Pra/hadrao Wasnik v. State of
Maharashtra, (2012) 4 SCC 37 the accused, a 31 year old,
had raped and murdered a 3 year old child. This Court
considered the brutality of the crime and the conduct of the
accused prior to, during and after the crime. Prior to the incident,
F the accused had worked under a false name and had gained
the trust and confidence of the victim. The accused had, after
committing a brutal crime, left the injured victim in the open field
without any clothes, thereby exhibiting his unfortunate and
abusive conduct. It was held:
G "This Court has to examine the conduct of the accused prior
to, at the time as well as after the commission of the crime.
Prior thereto, the accused had been serving with PW 5 and
PW 6 under a false name and took advantage of his
familiarity with the family of the deceased. He committed
H the crime in the most brutal manner and, thereafter, he
SHAN KAR KISANRAO KHADE v. STATE OF 1037
MAHARASHTRA [MADAN B. LOKUR, J.]
opted not to explain any circumstances and just took up A
the plea of false implication, which is unbelievable and
unsustainable.
"Another aspect of the matter is that the minor child was
helpless in the cruel hands of the accused. The accused 8
was holding the child in a relationship of "trust-belief' and
"confidence", in which capacity he took the child from the
house of PW 2. In other words, the accused, by his conduct,
has belied the human relationship of trust and worthiness.
The accused left the deceased in a badly injured condition C
in the open fields without even clothes. This reflects the
most unfortunate and abusive facet of human conduct, for
which the accused has to blame no one else than his own
self."
Broad analysis: D
45. The principal reasons for confirming the death penalty
in the above cases include (1) the cruel, diabolic, brutal,
depraved and gruesome nature of the crime (Jumman Khan,
Dhananjoy Chatterjee, Laxman Naik, Kamta Tewari, Nirmal E
Singh, Jai Kumar, Satish, Bantu, Ankush Maruti Shinde, B.A.
Umesh, Mohd. Mannan and Rajendra Pra/hadrao Wasnik);
(2) the crime results in public abhorrence, shocks the judicial
conscience or the conscience of society or the community
(Dhananjoy Chatterjee, Jai Kumar, Ankush Maruti Shinde and
F
Mohd. Mannan); (3) the reform or rehabilitation of the convict
is not likely or that he would be a menace to society (Jai Kumar,
B.A. Umesh and Mohd. Mannan); (4) the victims were
defenceless (Dhananjoy Chatterjee, Laxman Naik, Kamta
Tewari, Ankush Maruti Shinde, Mohd. Mannan and Rajendra
Pralhadrao Wasnik); (5) the crime was either unprovoked or G
that it was premeditated (Dhananjoy Chatterjee, Laxman
Naik, Kamta Tewari, Nirmal Singh, Jai Kumar, Ankush Maruti
Shinde, B.A. Umesh and Mohd. Mannan) and in three cases
the antecedents or the prior history of the convict was taken into
H
1038 SUPREME COURT REPORTS [2013] 6 S.C.R.
A consideration (Shivu, B.A. Umesh and Rajendra Pralhadrao
Wasnik).
46. However, what is more significant is that there are
cases where the factors taken into consideration for commuting
the death penalty were given a go-bye in cases where the
8
death penalty was confirmed. The young age of the accused
was not taken into consideration or held irrelevant in Dhananjoy
Chatterjee aged about 27 years, Jai Kumar aged about 22
years and Shivu & another aged about 20 and 22 years while
C it was given importance in Amjt v. State of Maharashtra,
Rahul, Santosh Kumar Singh, Rameshbhai Chandubhai
Rathod (2) and Amit v. State of Uttar Pradesh. The possibility
of reformation or rehabilitation was ruled out, without any expert
evidence, in Jai Kumar, B.A. Umesh and Mohd. Mannan in
much the same manner, without any expert evidence, as the
D benefit thereof was given in Nirmal Singh, Mohd. Chaman,
Raju, Bantu, Surendra Pal Shivbalakpal, Rahul and Amit v.
State of Uttar Pradesh. Acquittal or life sentence awarded by
the High Court was considered not good enough reason to
convert the death sentence in Satish, Ankush Maruti Shinde
E and B.A. Umesh but it was good enough in State of Tamil
Nadu v. Suresh, State of Maharashtra v. Suresh, Bharat
Fakira Dhiwar and Santosh Kumar Singh. Even though the
crime was not premeditated, the death penalty was confirmed
in Molai notwithstanding the view expressed in Akhtar, Raju
F and Amrit Singh. Circumstantial evidence was held not to be
a 'mitigating' factor in Jumman Khan, Kamta Tewari, Molai
and Shivaji but it was so held in Bishnu Prasad Sinha.
47. Bachan Singh is more than clear that the crime is
G important (cruel, diabolic, brutal, depraved and gruesome) but
the criminal is also important and this, unfortunately has been
overlooked in several cases in the past (as mentioned in
Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra, (2009) 6 sec 498) and even in some of the
cases referred to above. It is this individualized sentencing that
H
SHANKAR KISANRAO KHADE v. STATE OF 1039
MAHARASHTRA [MADAN B. LOKUR, J.]
has made this Court wary, in fhe recent past, of imposing death A
penalty and instead substituting it for fixed term sentences
exceeding 14 years (the term of 14 years or 20 years being
erroneously equated with life imprisonment) or awarding
consecutive sentences. Some of these cases, which are not
necessarily cases of rape and murder, are mentioned below. B
Minimum fixed term sentences:
48. There have been several cases where life sentence
has been awarded by this Court with a minimum fixed term of
incarceration. tv)any of them have been discussed in Swamy C
Shraddananda and so it is not necessary to refer to them
individually. Swamy Shraddananda refers to Aloke Nath Dutta
v. State of West Bengal, (2007) 12 SCC 230 which in turn
refers to five different cases. I propose to refer to them at this
stage. D
49. In Subhash Chander v. Krishan Lal, (2001) 4 SCC
458 it was held that the convict shall remain in prison "for the
rest of his life. He shall not be entitled to any commutation or
premature release under Section 401 of the Code of Criminal E
Procedure, Prisoners Act. Jail Manual or any other statute and
the rules made for the purposes of grant of commutation and
remissions."
" 50. In Shri Bhagwan v. State of Rajasthan, (2001) 6 SCC
296, Prakash Dhawal Khaimar (Patil) v. State of Maharashtra, F
(2002) 2 SCC 35 and Ram Anup Singh v. State of Bihar,
(2002) 6 SCC 686 the convict was directed to serve out at least
20 years of imprisonment.
51. In Mohd. Munna v. Union of/ndia, (2005) 7 SCC 417 G
the convict had undergone 21 years of incarceration. This Court
held that he was not entitled to release as a matter of course
but was required to serve out his sentence till the remainder of
his life subject to remissions by the appropriate authority or
State Government.
H
1040 SUPREME COURT REPORTS (2013] 6 S.C.R.
A 52. Swamy Shraddananda also refers to Jayawant
Dattatraya Suryarao v. State of Maharashtra, (2001) 10 SCC
109 in which it was directed that the convict "will not be entitled
to any commutation or premature release under Section 433-
A of the Criminal Procedure Code, Prisoners Act, Jail Manual
B or any other statute and the Rules made for the purpose of
commutation and remissions." Similarly, in Nazir Khan v. State
of Delhi, (2003) 8 SCC 461 while sentencing the convicts to
imprisonment for 20 years it was held that they would not be
entitled to any remission from this period.
c 53. The death sentence to the convict in Swamy
Shraddananda was converted to imprisonment for life with a
further direction that he shall not be released till the rest of his
life.
D 54. Sebastian v. State of Kera/a, (2010) 1 SCC 58 was
a case of a 24 year old extremely violent pedophile accused
of raping a two-year old child and then murdering her. While
commuting the death sentence, this Court held that he should
remain in jail for the rest of his life in terms of Swamy
E Shraddananda. It was observed:
"The evidence that the appellant was a paedophile with
extremely violent propensities also stands proved on
record in that he had been convicted and sentenced for
an offence punishable under Section 354 in the year 1998
F
and later for the offences punishable under Sections 363,
376, 379, 302 and 201 IPC for the rape and murder of a
young child and had been awarded a sentence of
imprisonment for life under Section 302, and several other
terms of imprisonment with respect to the other sections,
G though, an appeal in this connection was pending as on
date. It is also extremely relevant that the appellant had, in
addition, been tried for the murders of several other
chilcl,;en but had been acquitted on 28-7-2005 with the
benefit of doubt. The present incident happened three days
H later.
SHANKAR KISANRAO KHADE v. STATE OF 1041
MAHARASHTRA [MADAN B. LOKUR, J.]
"We accordingly dismiss the appeals but modify the A
sentence of death to one for the rest of his life in terms of
the judgment in Shraddananda case."
55. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC
257 this Court converted the death sentence of the accused to B
imprisonment for life though the crime of rape and murder was
heinous, since the accused persons were young at the time of
commission of the offence (between 21 and 31 years of age);
the possibility of the death of the victim being accidental; and
the accused not being a social menace with possibility of C
reforming themselves. It was held, while modifying the sentence
that the accused serve a term of imprisonment of 21 years:
"While we cumulatively examine the various principles and
apply them to the facts of the present case, it appears to
us that the age of the accused, possibility of the death of D
the deceased occurring accidently and the possibility of
the accused reforming themselves, they cannot be termed
as "social menace". It is unfortunate but a hard fact that all
these accused have committed a heinous and inhumane
crime for satisfaction of their lust, but it cannot be held with E
certainty that this case falls in the "rarest of rare" cases.
On appreciation of the evidence on record and keeping
the facts and circumstances of the case in mind, we are
unable to hold that any other sentence but death would be
inadequate. F
"Accordingly, while commuting the sentence of death to that
of life imprisonment (21 years), we partially allow their
appeals only with regard to the quantum of sentence."
56. In Neel Kumar v. State of Haryana, (2012) 5 SCC 766 G
this Court modified the death penalty awarded to the. accused
for the rape and murder of his 4 year old daughter to one of 30
years imprisonment without remissions. It was held:
"A three-Judge Bench of this Court in Swamy H
1042 SUPREME COURT REPORTS [2013] 6 S.C.R.
A Shraddananda (2) v. State of Kamataka, considering the
facts of the case, set aside the sentence of death penalty
and awarded the life imprisonment but further explained
that in order to serve the ends of justice, the appellant
therein would not be released from prison till the end of
B his life.
"Similarly, in Ramraj v. State of Chhattisgarh [(2010) 1
SCC 573] this Court while setting aside the death sentence
made a direction that the appellant therein would serve
minimum period of 20 years including remissions earned
c and would not be released on completion of 14 years'
imprisonment.
"Thus, in the facts and circumstances of the case, we set
aside the death sentence and award life imprisonment. The
D appellant must serve a minimum of 30 years in jail without
remissions, before consideration of his case for premature
release."
57. In Sandeep v. State of U.P., (2012) 6 SCC 107 the
E death sentence awarded to the convict for the murder of his
pregnant friend and pouring acid on her head was converted
to sentence of life for a minimum period of 30 years without
any remission before his case could be considered for
premature release.
F 58. In Brajendrasingh v. State of Madhya Pradesh, (2012)
4 sec 289 the accused had murdered his wife and three
children since he suspected his wife's fidelity. The death penalty
awarded to him was converted to imprisonment for life by this
Court with a minimum imprisonment of 21 years. This is what
G was said by this Court:
"Considering the above aspects, we are of the considered
view that it is not a case which falls in the category of the
"rarest of rare" cases where imposition of death sentence
is imperative. It is also not a case where imposing any
H
SHANKAR KISANRAO KHADE v. STATE OF 1043
MAHARASHTRA [MADAN B. LOKUR, J.]
other sentence would not serve the ends of justice or would A
be entirely inadequate.
"Once we draw the balance sheet of aggravating and
mitigating circumstances and examine them in the light of
the facts and circumstances of the present case, we have
B
no hesitation in coming to the conclusion that this is not a
case where this Court ought to impose the extreme penalty
of death· upon the accused. Therefore, while partially
accepting the appeals only with regard to quantum of
sentence, we commute the death sentence awarded to the C
accused to one of life imprisonment (21 years)."
59. In State of Uttar Pradesh v. Sanjay Kumar, (2012) 8
SCC 537 this Court converted the death penalty awarded to
the accused for the rape and murder of an 18 year old into one
of life imprisonment with a further direction that he would not D
be granted premature release under the guidelines framed for
that purpose, that is, the Jail Manual or even under Section 433-
A of the Cr. P.C. It was said:
"In view of the above, we reach the inescapable conclusion E
that the submissions advanced by the learned counsel for
the State are unfounded. The aforesaid judgments make
it crystal clear that this Court has merely found out the via
media, where considering the facts and circumstances of
a particular case, by way of which it has come to the
conclusion that it was not the "rarest of rare cases", F
warranting death penalty, but a sentence of 14 years or 20
years, as referred to in the guidelines laid down by the
States would be totally inadequate. The life imprisonment
cannot be equivalent to imprisonment for 14 years or 20
years, rather it always meant as the whole natural life. This G
Court has always clarified that the punishment so awarded
would be subject to any order passed in exercise of the
clemency powers of the President of India or the Governor
of the State, as the case may be. Pardons, reprieves and
remissions are granted in exercise of prerogative power. H
1044 SUPREME COURT REPORTS [2013] 6 S.C.R.
A There is no scope of judicial review of such orders except
on very limited grounds, for example, non-application of
mind while passing the order; non-consideration of relevant
material; or if the order suffers from arbitrariness. The
power to grant pardons and to commute sentences is
B coupled with a duty to exercise the same fairly and
reasonably. Administration of justice cannot be perverted
by executive or political pressure. Of course, adoption of
uniform standards may not be possible while exercising
the power of pardon. Thus, such orders do not interfere with
c the sovereign power of the State. More so, not being in
contravention of any statutory or constitutional provision, the
orders, even if treated to have been passed under Article
142 of the Constitution do not deserve to be labelled as
unwarranted. The aforesaid orders have been passed
considering the gravity of the offences in those cases that
D
the accused would not be entitled to be considered for
premature release under the guidelines issued for that
purpose i.e. under the Jail Manual, etc. or even under
Section 433-A CrPC."
E 60. In Gurvail Singh v. State of Punjab, (2013) 2 SCC 713
the death sentence was converted to imprisonment for life with
the requirement that the convict spends a minimum of thirty
years in jail without remission. It was held:
F "We are of the view, so faJ as this case is concerned, that
the extreme sentence of capital punishment is not
warranted. Due to the fact that the appellants are
instrumental for the death of four persons and nature of
injuries they have inflicted, in front of PW 1, whose son,
daughter-in-law and two grandchildren were murdered, we
G
are of the view that the appellants deserve no sympathy.
Considering the totality of facts and circumstances of this
case we hold that imposition of death sentence on the
appellants was not warranted but while awarding life
imprisonment to the appellants, we hQld that they must
H serve a minimum of thirty years in jail without remission.
SHAN KAR KISANRAO KHADE v. STATE OF 1045
MAHARASHTRA [MADAN B. LOKUR, J.]
The sentence awarded by the trial court and confirmed by A
the High Court is modified as above. Under such
circumstances, we modify the sentence from death to life
imprisonment. Applying the principle laid down by this
Court in Sandeep we are of the view that the minimum
sentence of thirty years would be an adequate punishment, B
so far as the facts of this case are concerned."
Consecutive sentence cases:
61. Ravindra Trimbak Chouthmal v. State of
Maharashtra, (1996) 4 SCC 148 is perhaps among the earliest C
cases where consecutive sentences were awarded. This was
not a case of rape and murder but one of causing a dowry death
of his pregnant wife. It was held that it was not the "rarest of
rare" cases "because dowry death has ceased to belong to that
species of killing." The death sentence was, therefore, not D
upheld. Since the accused had attempted to cause
disappearance of the evidence by severing the head and
cutting the body into nine pieces, this Court directed that he
should undergo the sentence for that crime after serving out his
life sentence. It was held: E
''We have given considered thought to the question and we
have not been able to place the case in that category which
could be regarded as the "rarest of the rare" type. This is
so because dowry death has ceased to belong to that
F
species of killing. The increasing number of dowry deaths
would bear this. To halt the rising graph, we, at one point,
thought to maintain the sentence; but we entertain doubt
about the deterrent effect of a death penalty. We, therefore,
resist ourselves from upholding the death sentence, much
though weiwould have desired annihilation of a despicable G
character like the appellant before us. We, therefore,
commute the sentence of death to one of RI for life
imprisonment.
"But then, it is a fit case, according to us, where, for the H
1046 SUPREME COURT REPORTS (2013] 6 S.C.R.
A offence under Sections 201/34, the sentence awarded,
which is RI for seven years being the maximum for a case
of the present type, should be sustained, in view of what
had been done to cause disappearance of the evidence
relating to the commission of murder - the atrocious way
B in which the head was severed and the body was cut in
nine pieces. These cry for maximum sentence. Not only
this, the sentence has to run consecutively, and not
concurrently, to show our strong disapproval of the
loathsome, revolting and dreaded device adopted to
c cause disappearance of the dead body. To these
sentences, we do not, however, desire to add those
awarded for offences under Sections 316 and 498-A/34,
as killing of the child in the womb was not separately
intended, and Section 498-A offence ceases to be of
significance and importance in view of the murder of
D
Vijaya.
''The result is that the appeal stands allowed to the extent
that the sentence of death is converted to one of
imprisonment for life. But then, the sentence of seven
E years' RI for the offence under Sections 201/34 IPC would
start running after the life imprisonment has run its course
as per law."
Since imprisonment for life means that the convict will
F remain in jail till the end of his normal life, what this
decision mandates is that if the convict is to be earlier
released by the competent authority for any reason, in
accordance with procedure established by law, then the
second sentence will commence immediately thereafter.
G 62. Ronny v. State of Maharashtra, (1998) 3 SCC 625 is
also among the earliest cases in the recent past where
consecutive sentences were awarded. The three accused,
aged about 35 years (two of them) and 25/27 years had
committed three murders and a gang rape. This Court
H converted the death sentence of all three to imprisonment for
SHANKAR KISANRAO KHADE v. STATE OF 1047
MAHARASHTRA [MADAN B. LOKUR, J.]
life since it was not possible to identify whose case would fall A
in the category of "rarest of rare" cases. However, after
awarding a sentence of life imprisonment, this Court directed
that they would all undergo punishment for the offence
punishable under Section 376(2)(g) of the IPC consecutively,
after serving the sentences for other offences. It was held: B
"Considering the cumulative effect of all the factors, it
cannot be said that the offences were committed under the
influence of extreme mental or emotional disturbance for
the whole thing was done in a pre-planned way; having
regard to the nature of offences and circumstances in which C
they were committed, it is not possible for the Court to
predict that the appellant would not commit criminal act of
violence or would not be a threat to the society. A-1 is 35
years' old, A-2 is 35 years' old and A-3 is 25 (sic 27) years'
old. The appellants cannot be said to be too young or too D
old. The possibility of reform and rehabilitation, however,
cannot be ruled out. From the facts and circumstances, it
is not possible to predict as to who among the three
played which part. It may be that the role of one has been
more culpable in degree than that of the others and vice E
versa. Where in a case like this it is not possible to say
as to whose case falls within the "rarest of the rare" cases,
it would serve the ends of justice if the capital punishment
is commuted into life imprisonment. Accordingly, we
modify the sentence awarded by the courts below under F
Section 302 read with Section 34 from death to life
imprisonment. The sentences for the offences for which the
appellants are convicted, except under Section 376(2)(g)
IPC, shall run concurrently; they shall serve sentence under
Section 376{2)(g) IPC consecutively, after serving G
sentence for the other offences."
63. In Sandesh v. State of Maharashtra, (2013) 2 SCC
479 this Court converted the death penalty awarded to the
accused to imprisonment for life, inter alia, for the rape of a
pregnant lady, attempted murder and the murder of her mother H
1048 SUPREME COURT REPORTS [2013) 6 S.C.R.
A in law to imprisonment for life with a further direction that all the
sentences were to run consecutively.
64. In Sanaullah Khan v. State of Bihar, MANU/SC/0165/
2013 the death sentence awarded to the accused for the murder
of three persons was converted by this Court to imprisonment
8
for life for each of the three murders and further the sentences
were directed to run consecutively.
65. These decisions clearly suggest that this Court has
been seriously reconsidering, though not in a systemic manner,
C awarding life sentence as an alternative to death penalty by
applying (though not necessarily mentioning) the
"unquestionably foreclosed" formula laid down in Bachan
Singh.
D 66. Off and on, the issue has been the interpretation of "life
sentence" - does it mean imprisonment for only 14 years or
20 years or does it mean for the life of the convict. This doubt
has been laid to rest in several cases, more recently in Sangeet
where it has been unequivocally laid down that a sentence of
E imprisonment for life means imprisonment for the rest of the
normal life of the convict. The convict is not entitled to any
remission in a case of sentence of life imprisonment, as is
commonly believed. However, if the convict is sought to be
released before the expiry of his life, ii can only be by following
the procedure laid down in Section 432 of the Code of Criminal
F Procedure or by the Governor exercising power under Article
161 of the Constitution or by the President exercising power
under Article 72 of the Constitution. There is no other method
or procedure. Whether the statutory procedure under Section
432 of the Code of Criminal Procedure can be stultified for a
G period of 20 years or 30 years needs further discussion as
observed in Sangeet, which did not deal with the constitutional
power. This side issue does not arise in the present case also,
and is therefore, not being discussed.
H Information from the National Crime Records Bureau:
SHAN KAR KISANRAO KHADE v. STATE OF 1049
MAHARASHTRA [MADAN B. LOKUR, J.]
67. Quite apart from the above discussion, assuming a A
case can be identified as the rarest of rare, the chapter does
not end with awarding the death sentence. From the information
available in the annual reports published by the National Crime
Records Bureau (NCRB) and which is freely available on the
internet, it appears that between 2001 and 2011 (both years B
included) death sentence has been awarded to as many as
1455 persons and one person (Dhananjoy Chatterjee) was
executed in 2004. However, death sentence has been
converted to life imprisonment during the same period in
respect of 4321 persons. The figures (of death sentence c
awarded and commuted) obviously do not match. It is unlikely
that all the commutations w.ere by the Executive. Perhaps (it is
not at all clear) the NCRB has also taken into account cases
where the death sentence awarded by the Trial Court has not
been confirmed by the High Court and those cases where the D
High Court has confirmed the sentence, but it has been
modified by this Court or cases where a plea of not guilty has
been accepted by this Court for want of conclusive evidence.
Whatever the reason, there is an obvious and glaring mismatch.
68. There are also an extraordinarily high number of E
"commutations" granted in Delhi. In 2005 Delhi granted 919
commutations; in 2006 Delhi granted 806 commutations; and
in 2007 Delhi granted 726 commutations. A correspondingly
high number of death sentences were not awarded in Delhi in
the relevant years, b~t it is difficult to say whether there were F
such a large number of pending death sentences awaiting
execution. There appears to be an inexplicable error in this
regard also but even if the commutations granted in Delhi are
taken out of calculation, there would still be a baffling mismatch
in figures. The commutation figures given by the NCRB may G
not be entirely reliable, but in any case there is no reason to
doubt the correctness of the number of death sentences
awarded, which too is rather high, making it unclear whether
death penalty is really being awarded only in the rarest of rare
cases. H
1050 SUPREME COURT REPORTS [2013) 6 S.C.R.
A 69. The details mentioned above, as obtained from a study
of the publications of the NCRB, are compiled in the following
chart:
DETAILS OF DEATH SENTENCE DURING 2001 TO
2011
B
STATE/U.T. CONVICTS CONVICTS EXECUTED
SENTENCED WHOSE
TO DEATH SENTENCE
COMMUTED
c TO LIFE
IMPRISON-
MENT
Andhra 8 3 0
D Pradesh
Assam 21 97 0
Bihar 132 343 0
E
Chhattisgarh 18 24 0
Goa 1 0 0
Gujarat 57 3 0
F
Haryana 31 23 0
Himachal 3 2 0
Pradesh
G
Jharkhand 81 300 0
Jammu & 20 18 0
Kashmir
H
SHAN KAR KISANRAO KHADE v. STATE OF 1051
MAHARASHTRA [MADAN B. LOKUR, J.)
Karnataka 95 2 0 A
Kera la 34 23 0
Madhya 87 62 0
Pradesh B
Maharashtra 125 175 0
Manipur 3 1 0
Meghalaya 6 2 0 c
Mizoram 0 0 0
Nagaland 0 15 0
D
Orissa 33 68 0
Punjab 19 24 0
Rajasthan 38 33 0
E
Sikkim 0 0 0
Tamil Nadu 95 24 0
Tripura 2 9 0 F
Uttar Pradesh 370 458 0
Uttarakhand 16 46 0
G
West Bengal 79 98 1
Total 1374 1853 1
Chandigarh 4 3 0
H
1052 SUPREME COURT REPORTS [2013) 6 S.C.R.
A Dadra & Nagar 0 0 0
Haveli
Daman & Diu 4 0 0
B Delhi 71 2462 0
Lakshadweep 0 2 0
Pondicherry 2 1 0
c Total 81 2468 0
Grand Total 1455 4321 1
70. The significance of these figures is that even though
D the Courts have awarded death penalty in appropriate cases
applying the rarest of rare principle, the death sentence has
been commuted in many of them. The reasons for commuting
the death sentence by the Executive are not in the public domain
and therefore it is not possible to know what weighed with the
E Executive in commuting the death sentence of each convict.
Was the reason for commutation that the crime and the criminal
did not fall in the category of rarest of rare and if so what was
the basis for coming to this conclusion when the competent
Court has come to a different conclusion?
F 71. It seems to me that though the Courts have been
applying the rarest of rare principle, the Executive has taken
into consideration some factors not known to the Courts for
converting a death sentence to imprisonment for life. It is
imperative, in this regard, since we are dealing with the lives
G of people (both the accused and the rape-murder victim) that
the Courts lay down a jurisprudential basis for awarding the
death penalty and when the alternative is unquestionably
foreclosed so that the prevailing uncertainty is avoided. Death
penalty and its execution should not become a matter of
H uncertainty nor should converting a death sentence into
SHANKAR KISANRAO KHADE v. STATE OF 1053
MAHARASHTRA [MADAN B. LOKUR, J.]
imprisonment for life become a matter of chance. Perhaps the A
Law Commission of India can resolve the issue by examining
whether death penalty is a deterrent punishment or is retributive
justice or serves an incapacitative goal.
72. It does prima facie appear that two important organs B
of the State that is the Judiciary and the Executive are treating
the life of convicts convicted of an offence punishable with death
with different standards. While the standard applied by the
Judiciary is that of the rarest of rare principle (however
subjective or judge-centric it may be in its application) the C
standard applied by the Executive in granting commutation is
not known. Therefore, it could happen (and might well have
happened) that in a given case the Sessions Judge, the High
Court and the Supreme Court are unanimous in their view in
awarding the death penalty to a convict, any other option being
unquestionably foreclosed, but the Executive has taken a D
diametrically opposite opinion and has commuted the death
penalty. This may also need to be considered by the Law
Commission of India.
Conclusion: E
73. While agreeing with my learned Brother Justice
Radhakrishnan that the conviction of the appellant should be
upheld, but keeping the above discussion in mind, I endorse
the direction that all the sentences awarded to the appellant
F
should run consecutively.
74. The appeals are disposed of accordingly.
K.K.T. Appeals disposed of.
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