SHANKAR KISANRAO KHADE v. STATE OF MAHARASHTRA

Citation: [2013] 6 S.C.R. 949

Court: Supreme Court of India

Bench: K.S. RADHAKRISHNAN, MADAN B. LOKUR

Case summary

SHANKAR KISANRAO KHADE v. STATE OF MAHARASHTRA.pdf

Judgment text

[2013] 6 S. C. R. 949 SHANKAR KISANRAO KHADE v. STATE OF MAHARASHTRA (Criminal Appeal No. 362-363 of 2010) APRIL 25, 2013 [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 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.

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 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 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 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.

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 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 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 - 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 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 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 MAHARASHTRA incapacitative goal - Code of Criminal Procedure, 1973 - s. 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 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- 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 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 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. Dismissing the appeal, and converting the death sentence to life imprisonment, the Court HELD: Per K. S. Radhakrishnan. J. 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 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 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 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 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.

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 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] MAHARASHTRA 1. 3. Medical evidence clearly indicates that the cause 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 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 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 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 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, 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 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] 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 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 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] 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. 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 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 MAHARASHTRA against the accused. Both the crime test and criminal test 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 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 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 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. 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 (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 "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 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] 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 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) 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 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 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; Rameshbhai Chandubhai Rathod vs. The State of Gujarat MAHARASHTRA (2011) 2 SCC 764: 2011 (1) SCR 829; Surendra Pal 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. 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 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] 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 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 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 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] 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 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 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 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 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 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 MAHARASHTRA of the children.

Witnesses of many such heinous crimes 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 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 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, 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 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] 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 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 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] 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 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. 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 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 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 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 application of the rarest of rare principle becomes MAHARASHTRA extremely delicate thereby making the awarding of 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. *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 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 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 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] 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 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 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 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) 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 (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. 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 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. 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 reform or rehabilitation of the convict is not likely or that MAHARASHTRA he would be a menace to society; (4) the victims were 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] 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) 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 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 (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) 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 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 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 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 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 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 (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 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 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 years (the term of 14 years or 20 years being erroneously MAHARASHTRA equated with life imprisonment) or awarding consecutive 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 8 reconsidering, though not in a systemic manner, 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 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 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 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 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; 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 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 (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. 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 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 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 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 are unanimous in their view in awarding the death penalty MAHARASHTRA to a convict, any other option being unquestionably 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] Case Law Reference: In the Judgment of K. S. Radhakrishnan, J. : (2001) 2 sec 28 referred to Para 9 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 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 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 2007 (7) SCR 616 referred to Para 10 2005 (2) SCR 1132 relied on Para 14 2006 (3) SCR 348 relied on Para 14 2008 (10) SCR 89 relied on Para 14 (1980) 2 sec 684 referred to Para 20 1983 (3) SCR 413 referred to Para 21 (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) 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) 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) 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) 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 2009 (13) SCR 548 referred to Para 37 2009 (12) SCR 1093 relied on Para 37 In the Judgment of Madan B. Lokur, J. : 2008 (11) SCR 93 referred to Para 2, 48 MAHARASHTRA (1980) 2 sec 684 followed Para 2, 5 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 (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 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 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 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 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 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 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 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 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 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 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 2007 (2) SCR555 referred to Para 38 2008 (11) SCR 184 referred to Para 39 2008 (13) SCR81 referred to Para 40 2009 (7) SCR 182 referred to Para 41 2011 (2) SCR367 referred to Para 42 2011 (5) SCR518 referred to Para 43 2012 (2) SCR225 referred to Para 44 MAHARASHTRA 2009 (9) SCR 90 referred to Para 47 2006 (10) Suppl. SCR662 referred to Para 48 2001 (2) SCR 864 referred to Para 49 2001 (3) SCR 656 referred to Para 49 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 2003 (2) Suppl. SCR884 referred to Para 52 (201 O) 1 sec 58 referred to Para 54 2012 (3) SCR630 referred to Para 55 2012 (5) SCR696 referred to Para 56 2012 (5) SCR 952 referred to Para 57 2012 (3) SCR599 referred to Para 58 2012 (7) SCR359 referred to Para 59 (2013) 2 sec 113 referred to Para 60 1996 (2) SCR 1009 referred to Para 61 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 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. Ajay Kumar Talesara for the Appellant. Aprajita Singh (for Asha Gopalan Nair) for the Respondent. The Judgments of the Court was delivered by 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. 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 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 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 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 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~. Confirmation Case No. 1 of 2007. The High Court dismissec MAHARASHTRA [K. S. RADHAKRISHNAN, J.

] the appeal and the reference made by the Sessions Court was 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 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 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 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 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 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 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 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 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 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. 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 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 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 reasonable doubt that it was the accused who had committee MAHARASHTRA [K. S. RADHAKRISHNAN, J. ] the offence of rape and murder of the deceased girl. He 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, 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 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 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 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 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 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 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 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 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 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 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. 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. 11. I have critically and minutely gone through the evidence MAHARASHTRA [K. S. RADHAKRISHNAN, J.

] adduced by the prosecution as well as by the defence and 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 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. (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. (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 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 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 more than one occasion. (ix) Deceased was suffering from moderate intellectual disability. (x) Identification of the accused by the witnesses. (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 maternal uncle stated that her age was between 10-12 years.

PW 13 - grandmother of the deceased stated her age was about 1Oyears. 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. 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 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 1 the hotel business opposite to the tnandir, stated that on 20. 7. 2006 at about 7. 00pm one man and woman had come to 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 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 MAHARASHTRA [K. S. RADHAKRISHNAN, J. ] accused, were friends and he used to go to the house of the 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 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 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 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 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 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 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 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 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 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 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 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.

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. (ii) Organs of generation. (iii) Tear of cervix about 3 cm interiorly present wit~ echoymetic. " 17. Medical evidence clearly indicates that the cause o- MAHARASHTRA [K. S. RADHAKRISHNAN, J. ] 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 more than one occasion. 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 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 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 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 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 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 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 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 470 this Court held that case fell in the category of rarest 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 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 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) 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 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) 1 sec 1s21 MAHARASHTRA [K. S. RADHAKRISHNAN, J. ] This Court, in this case, was hearing a writ petition moved 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 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 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 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. 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 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 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 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 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 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 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. " 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 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 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 noticed how diabolically the accused had conceived his plan MAHARASHTRA [K. S. RADHAKRISHNAN, J. ) and brutally executed it in such a calculated cold blooded and 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.

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 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 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 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 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 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 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 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 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. " 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] 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 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 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 follows: MAHARASHTRA [K. S. RADHAKRISHNAN, J. ] "8.

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 aplenty. The evidence on record clearly 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 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 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 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 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 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 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 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 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 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 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 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 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 falls in the category of rarest of rare cases. MAHARASHTRA [K. S. RADHAKRISHNAN, J. ] 7. Bantu v. State of Uttar Pradesh [(2008) 11 SCC 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 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 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. 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 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 capital punishment. 9. Mohd. Mannan @ Abdul Mannan v. State of Bihar [(2011) s sec 3171 This was a case where a minor girl aged 7 years was 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 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 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 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 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 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 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. MAHARASHTRA [K. S. RADHAKRISHNAN, J. ] 23. CASES IN WHICH DEATH PENALTY 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, 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, 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. 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 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 sentence. 3. Bantu alias Naresh Giri v. State of M. P. [(2001) 9 sec 615] This Court commuted death sentence to that of life 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. 992 SUPR~ME COURT REPORTS [2013] 6 S. C. R. '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] 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 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. "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) 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 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 MAHARASHTRA [K. S. RADHAKRISHNAN, J.

] This Court commuted death sentence to that of life 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 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 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 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. 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 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 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 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. 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. 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. " 25. In Bachan Singh and Machhi Singh cases, this Court laid down various principles for awarding sentence: "Aggravating circumstances - (Crime test) 1. The offences relating to the commission of heinous crimes like murder, rape,