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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 362-363 OF 2010
Shankar Kisanrao Khade … Appellant
Versus
State of Maharashtra … Respondent
J U D G M E N T
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.
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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 304 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
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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 with
Confirmation Case No.1 of 2007. The High Court dismissed 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
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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 market 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
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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 of 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 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)
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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 capital punishment.
7. We heard Shri. A.K. Talesera, learned counsel appearing for the
accused and Ms.Aprajita Singh, learned counsel appearing for the State
at length. Shri Talesera submitted that the prosecution had failed to
prove beyond reasonable doubt that it was the accused who had
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committed 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 submitted
that in any view of the matter, the case would not fall under the rarest of
rare category warranting capital punishment.
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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
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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.Page 10
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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, Sushil Murmu v. State of
Jharkhand (2004) 2 SC 338, Shivu and another v. Registrar General,
High Court of Karnataka and another (2007) 4 SCC 713, B.A.
Umesh v. Registrar General, High Court of Karnataka (2011) 3 SCC
85, Mohd. Mannan Alias Abdul Mannan v. State of Bihar (2011) 5
SCC 317, Sebastian v. State of Kerala (2010) 1 SCC 58, Aloke Nath
Dutta and others v. State of West Bengal (2007) 12 SCC 230 and
Swamy Shraddananda Alias Murali Manohar Mishra v. State of
Karnataka (2007) 12 SCC 288.
11. I have critically and minutely gone through the evidence 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.
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(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.8) 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 PW8 to take his wife accused No.2.
(vi) False explanation given by accused to PW8 that he had dropped
the deceased at Lakhanwadi.
(vii) On 24.7.2006 dead body of the deceased was found in 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 some dispute. Certificate Ext.94 issued
by the Handicap Board stated the age of girl was 9 years on 6.12.2005.
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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 10 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.
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 10 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 with them. PW 11, who was conducting the hotel
business opposite to the mandir, 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 with a girl aged about 10-11 years and went
to the mandir and he identified both the accused persons in the court.
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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 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
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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. PW8 evidence 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. This
Court in State of U.P. 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.
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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 Majora and Minora swelled, tear of size two inch x ½
inch over interior part of labia Majora, extending to vagina
present with clots of blood.
(ii) Anal tear of size 1 inch x ½ 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.
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(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 with echoymetic.”
17. 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.
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
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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.Page 18
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20. In Bachan 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 SCC 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,
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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 SCC 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
criminal were not seen addressed. Stress was more on “crime test”.
2. Jumman Khan v. State of Uttar Pradesh [(1991) 1 SCC 752]
This Court, in this case, was hearing a writ petition moved by a
convict, not to extend the death sentence. Writ Petition was dismissed
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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 SCC
220]
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:Page 21
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“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.”
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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 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. Page 23
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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 with 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
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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”, it is seen, have been
satisfied against the accused for awarding capital punishment.
5. Kamta Tiwari v. State of M.P. [(1996) 6 SCC 250]
This Court dealt with a case of rape followed by murder 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
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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:
“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
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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
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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.
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
Page 28
28
or a person vis-à-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 Alhat 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) 5
SCC 317]Page 29
29
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.
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 mitigatingPage 30
30
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
child in a relationship of 'trust-belief' and 'confidence', in
which 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.
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
Page 31
31
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 previous
criminal record or would be a threat to the society. ‘Criminal 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.Page 32
32
3. Bantu alias Naresh Giri v. State of M.P. [(2001) 9 SCC 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. ‘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]Page 33
33
This Court commuted death sentence to that of life imprisonment
in a case, where a 7-8 years old girl was raped 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 SCC 127]Page 34
34
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 deathPage 35
35
sentence, is not exhaustive but only illustrative. This bench in Sangeeta
& Ors v. State of Haryana (2013) 2 SCC 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
alia, 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.Page 36
36
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, 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 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 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
offences to receive money or monetary benefits.
5. Hired killings.
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.Page 37
37
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
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
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
person.
11. When murder is committed for a motive which evidences
total depravity and meanness.
12. When there is a cold blooded murder without
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.
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
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.Page 38
38
3. The chances of the accused of not indulging in 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 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 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 is
of the view that the crime was not committed in a preordained 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.
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 of
Maharashtra (2009) 6 SCC 498, this Court held the nature, motive, and
impact of crime, culpability, quality of evidence, socio economicPage 39
39
circumstances, impossibility of rehabilitation and some of the factors,
the Court may take into consideration while dealing with such cases.
27. In Sangeeta’s case this Bench has held that there is no 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 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”, “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 thePage 40
40
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 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 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..
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. Page 41
41
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)
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 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 disability is an
aggravating circumstance. The accused was a fatherly figure aged 52
years. Page 42
42
31. Dr. Kewade – PW3, who conducted the post mortem, had deposed
as well as stated in the report the ghastly manner 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 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 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 incident, a fatherly figure
for the minor child. The accused is an able bodied person has seen the
world and is the father of two children. The accused repeatedly raped
Page 43
43
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. 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 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.
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.
Page 44
44
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 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 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.
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 Borgaon Manju, District Akola for
the offence under Section 302 IPC on the allegation that he caused
Page 45
45
murder of his wife Chanda by assaulting her with stick on 4.10.1993 and
that Sessions Trial No. 52/07 was pending before the Sessions Court,
Akola. Further, it was also stated that another Crime No. 80/06 was 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 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 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 Gurmukh Singh v. State of 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,
Page 46
46
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
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 three
accused. It had rejected the said argument on the ground that
a conviction might not be possible in each and 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 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 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
Page 47
47
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. 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
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:
“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
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 reason that therePage 48
48
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 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 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.
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
Page 49
49
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 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 (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 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 agegroup 18-30 years. However, 15.0% (3,637 victims) were in the age
group of 30-50 years while 0.6% (141 victims) was over 50 years of age.
45. Offenders were known to the victims in as many as in 22,549
(94.2%) cases. Parents / close family members were involved in 1.2%Page 50
50
(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.
46. A total of 7,112 cases of child rape were reported in the country
during 2011 as compared to 5,484 in 2010 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 (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
Sl. No. Crime Head YEAR % Variation in
2011 over
2010
(1) (2) (3) (4) (5) (6)
3. Rape 5,368 5,484 7112 30Page 51
51
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 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. 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.
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 reads as follows:Page 52
52
“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 material or object which is sexually
exploitative of the child (including pornographic, sexuallyrelated 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
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 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.
(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, 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 influence over them.Page 53
53
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 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. Some adult members of family including
parents choose not to report such crimes to the police 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 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
Page 54
54
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.
51. In my view, whenever we deal with an issue of child abuse, we
must apply 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 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.
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 localPage 55
55
police or to the J.J. Board compel us to give certain directions for
compliance 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 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 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 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:Page 56
56
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 than twenty years=, but which may
extend to imprisonment for life, which shall mean the
remainder of that person’s natural life, or with death”.
Therefore a person, who commits an offence punishable under subsection (1) and sub-section (2) of Section 376 and causes death shall be
punishable with rigorous imprisonment for a term which shall not be less
than twelve years but which my extend to imprisonment for life, which
shall be mean the remainder of that periods natural life or with death.
54. Considering the entire facts and circumstances of the 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.Page 57
57
55. I my opinion, the case in hand calls for issuing the following
directions to various stake-holders for due compliance:
(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
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 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, 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.
Page 58
58
(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 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 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.
(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
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.
Page 59
59
(6) The non-reporting of the crime by anybody, after 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 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 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 Governments are directed
to constitute SJPUs in 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.
(9) The Central Government and every State Government should take
all measures as provided under Section 43 of the Act 32/2012 to
Page 60
60
give wide publicity of the provisions of the Act through media
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 sentence awarded
to the accused is converted to that of rigorous imprisonment for life and
that all the sentences awarded will run consecutively.
…......................................J
(K.S. Radhakrishnan)
New Delhi
April 25, 2013Page 61
61
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 362-363 OF 2010
Shankar Kisanrao Khade …..Appellant
Versus
State of Maharashtra
…..Respondent
J U D G M E N T
Madan B. Lokur, J.
1. While entirely agreeing with my 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 viewsPage 62
62
expressed by this Court on awarding death penalty or
converting it to imprisonment for life in cases concerning rape
and murder.
Element of subjectivity:
2. In Swamy Shraddananda (2) v. State of Karnataka,
(2008) 13 SCC 767 this Court noted in paragraph 44 of the
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
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 application of the “rarest of rare” principle since
there is a lack of empirical data for making the two-fold
comparison. Page 63
63
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 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
sentence subjective as mentioned in Swamy Shraddananda
or judge-centric as mentioned in Sangeet v. State of
Haryana, 2013 (2) SCC 452.
Corridor of uncertainty:
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 and
those in which it has been converted to life imprisonment. InPage 64
64
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
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.
5. For the present purposes, I will first refer to those somewhat
recent cases (say over the last about 15 years) 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
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:Page 65
65
“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 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
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
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 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
imprisonment – it is only required to record reasons for either
confirming the death sentence or awarding it. Page 66
66
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 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 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:
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
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:Page 67
67
“The above discussion takes us to the final conclusion that
the High Court has seriously erred in upsetting the
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 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 restore the sentence of death passed by the trial
court on those two accused.”
10. Nirmal 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. 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 no criminal antecedents; there was no possibility
of his committing criminal acts of violence; he would notPage 68
68
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
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
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. 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 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 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 rarePage 69
69
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
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 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.”
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:
“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
the accused-appellant found a young girl alone in a lonely
place, picked her up for committing rape; while committingPage 70
70
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 the
considered opinion that the case in hand cannot be held to
be one of the rarest of rare cases justifying the 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 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
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 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, in regard to the offence under Section
302 IPC, to imprisonment for life.”Page 71
71
14. In Mohd. Chaman v. State (NCT of Delhi), (2001) 2
SCC 28 the accused, a 30 year old man, had raped and killed a
one and a half year old child. Despite concluding that the 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
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
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
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 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 thePage 72
72
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 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.”
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
(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:
“[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 that
the appellant was having any criminal record nor can he be
said to be a grave danger to the society at large. In thesePage 73
73
circumstances, it would be difficult to hold that the case of
the appellant would be rarest of rare case justifying
imposition of death penalty.”
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 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
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 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 toPage 74
74
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 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 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.”
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 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 record ofPage 75
75
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 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.”
19. Surendra Pal Shivbalakpal v. State of Gujarat,
(2005) 3 SCC 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 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
“rarest of rare case” in which death penalty should be
imposed on the appellant. The appellant was aged 36 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 menace to society in
future and no materials are placed before us to draw such aPage 76
76
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 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:
“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
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. Rahul v. State of Maharashtra, (2005) 10 SCC 322
was a case of the rape and murder of a four and a half year 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 incidentPage 77
77
occurred; apparently his behavior in custody was not
uncomplimentary; he had no previous criminal record; and
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
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, 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.”
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. 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:Page 78
78
“The opinion of the learned trial Judge as also the High Court
that the appellant being aged about 31 years and 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 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 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
opinion, was, thus, improper. Even otherwise, it cannot be
said to be a rarest of rare cases. The manner in which the
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 a rarest of
rare cases.”
23.Bishnu Prasad Sinha v. State of Assam, (2007) 11 SCC
467 was a case concerning the rape and murder of a child
aged about 7 or 8 years by two accused persons. The death
penalty awarded to them was converted to life imprisonment
since the conviction was based on circumstantial evidence andPage 79
79
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:
“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 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.
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 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
died a year after his conviction; his family faced a dismalPage 80
80
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
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 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.
“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
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.
“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 thePage 81
81
Penal Code; the other part of the sentence being retained as
it is.”
25. Rameshbhai Chandubhai Rathod (2) v. State of
Gujarat, (2011) 2 SCC 764 was an unusual case in as much as
the two learned Judges hearing the case had differed on the
sentence to be awarded. Accordingly the matter was referred to a
larger Bench which noted that the accused was 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:
“Both the Hon'ble Judges have relied extensively on
Dhananjoy Chatterjee 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 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 the 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 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.Page 82
82
“We are, therefore, of the opinion that in the light of the
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 when he
committed the offence.
27. In Haresh Mohandas Rajput v. State of Maharashtra,
(2011) 12 SCC 56 the Trial Court had awarded life sentence to
the accused for the rape and murder of a 10 year old child 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 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
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.”Page 83
83
28. In Amit v. State of Uttar Pradesh, (2012) 4 SCC 107 the
death penalty awarded to the accused for the rape and 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 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
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-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 of the
Government for good and sufficient reasons.”
Broad analysis:Page 84
84
29. A study of the above cases suggests that 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 (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) 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 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 be mentioned
such as the accused having been acquitted by one the Courts
(State of Tamil Nadu v. Suresh, State of Maharashtra v.Page 85
85
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 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).
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 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:
“Although the conviction of the petitioner under Section 302
of the Indian Penal Code, 1860 rests on circumstantial
evidence, the circumstantial evidence against the petitionerPage 86
86
leads to no other inference except that of his guilt and
excludes every hypothesis of his innocence……...
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 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 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,
(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
committed in a brutal manner by a security guard against a
young defenceless person to satisfy his lust and in retaliation for aPage 87
87
complaint made by her against him. This is what this Court had to
say:
“In recent years, the rising crime rate — particularly violent
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 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 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
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
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 that a
most heinous type of barbaric rape and murder was
committed on a helpless and defenceless school-going girl of
18 years……..” Page 88
88
32. In Laxman Naik v. State of Orissa, (1994) 3 SCC 381
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:
“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
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
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
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 of
the victim, a 7 year old child. In fact, she would address him asPage 89
89
‘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:
“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. …… 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 abhorrence of such 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 appeal.
Pending the appeal, he applied for and was granted bail. While on
bail, he killed five members of the family who had given evidence
against him in the case for which he was convicted of rape,Page 90
90
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:
“…… 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 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
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 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 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 womanPage 91
91
followed by her murder and the murder of her 8 year old child.
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:
“….. [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” 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 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
shocked our judicial conscience. The murder was coldblooded and brutal without any provocation. It certainly
makes it a rarest of the rare cases in which there are no
extenuating or mitigating circumstances.Page 92
92
36. In Molai & 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 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, 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 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 circumstance from the record of the case to
justify the reduction of sentence of either of the accused.”Page 93
93
37. State of Uttar Pradesh 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 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:
“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 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.”
38. Shivu & Anr. v. Registrar General, High Court of
Karnataka, (2007) 4 SCC 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 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,Page 94
94
they were admonished by the village elders and the Panchayat
and asked to mend their ways. It was held:
“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.”
39. In Bantu v. State of Uttar Pradesh, (2008) 11 SCC 113
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 cms. to masquerade the crime as 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.”
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 ofPage 95
95
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
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 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 depraved acts
of the accused, and they call for only one 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
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 toPage 96
96
be cruel and diabolic; the collective 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:
“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 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.
“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 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 accused
persons deserve dismissal, which we direct and the State's
appeals deserve to be allowed. A-2, A-3 and A-5 are alsoPage 97
97
awarded death sentence. In essence all the six accused
persons deserve death sentence.”
42. B.A. Umesh v. Registrar General, High Court of
Karnataka, (2011) 3 SCC 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 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 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
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 thePage 98
98
trial court and confirmed by the High Court. None of the
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 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 process causing injuries to
her.
“As has been indicated by the courts below, the 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 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."
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. ItPage 99
99
was held that the number of persons killed by the 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 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:
“……. 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 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 won the trust of the child and
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.Page 100
100
“The post-mortem report shows various injuries on the face,
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 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
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.”
44. In Rajendra Pralhadrao 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, 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: Page 101
101
“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
the crime in the most brutal manner and, thereafter, he
opted not to explain any circumstances and just took up 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 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 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:
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 Singh, JaiPage 102
102
Kumar, Satish, Bantu, Ankush Maruti Shinde, B.A. Umesh,
Mohd. Mannan and Rajendra Pralhadrao 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 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
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 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 deathPage 103
103
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 it
was given importance in Amit 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
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
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 andPage 104
104
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
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 SCC 498) and even in some of the cases referred to
above. 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
equated with life imprisonment) or awarding consecutive
sentences. Some of these cases, which are not necessarily cases
of rape and murder, are mentioned below.
Minimum fixed term sentences:Page 105
105
48. There have been several cases where life sentence has been
awarded by this Court with a minimum fixed term of
incarceration. Many of them have been discussed in Swamy
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.
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 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 Khairnar (Patil) v. State of
Maharashtra, (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. Page 106
106
51. In Mohd. Munna v. Union of India, (2005) 7 SCC 417
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.
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
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.
53. The death sentence to the convict in Swamy
Shraddananda was converted to imprisonment for life with aPage 107
107
further direction that he shall not be released till the rest of his
life.
54. Sebastian v. State of Kerala, (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
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 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, 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 children but had been acquitted
on 28-7-2005 with the benefit of doubt. The present incident
happened three days later.
“We accordingly dismiss the appeals but modify the
sentence of death to one for the rest of his life in terms of
the judgment in Shraddananda case.”Page 108
108
55. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC
257 this Court converted the death sentence of the accused to
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 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 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
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.Page 109
109
“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
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 Shraddananda
(2) v. State of Karnataka, 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 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 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
appellant must serve a minimum of 30 years in jail without
remissions, before consideration of his case for premature
release.”Page 110
110
57. In Sandeep v. State of U.P., (2012) 6 SCC 107 the 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.
58. In Brajendrasingh v. State of Madhya Pradesh, (2012)
4 SCC 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 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 other
sentence would not serve the ends of justice or would 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 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 acceptingPage 111
111
the appeals only with regard to quantum of sentence, we
commute the death sentence awarded to the 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 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
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”,
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
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 andPage 112
112
remissions are granted in exercise of prerogative power.
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 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 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 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.”
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:
“We are of the view, so far 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,Page 113
113
daughter-in-law and two grandchildren were murdered, we
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 hold that they must
serve a minimum of thirty years in jail without remission. The
sentence awarded by the trial court and confirmed by 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, 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 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 upheld. Since the
accused had attempted to cause disappearance of the evidence
by severing the head and cutting the body into nine pieces, thisPage 114
114
Court directed that he should undergo the sentence for that crime
after serving out his life sentence. It was held:
“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 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
we would have desired annihilation of a despicable 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
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 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 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 Vijaya.Page 115
115
“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 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 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.
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 converted the death
sentence of all three to imprisonment for life since it was not
possible to identify whose case would fall in the category of
“rarest of rare” cases. However, after awarding a sentence of life
imprisonment, this Court directed that they would all undergoPage 116
116
punishment for the offence punishable under Section 376(2)(g) of
the IPC consecutively, after serving the sentences for other
offences. It was held:
“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 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 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 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 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 sentence for the other offences.”Page 117
117
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 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 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,
awarding life sentence as an alternative to death penalty by
applying (though not necessarily mentioning) the “unquestionably
foreclosed” formula laid down in Bachan Singh.
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 hasPage 118
118
been laid to rest in several cases, more recently in Sangeet
where 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. Whether the statutory procedure under Section 432 of
the Code of Criminal Procedure can be stultified for a 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.
Information from the National Crime Records Bureau:
67. Quite apart from the above discussion, assuming a case can
be identified as the rarest of rare, the chapter does not end withPage 119
119
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 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 awarded and commuted) obviously do not match. It is
unlikely that all the commutations were 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
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
“commutations” granted in Delhi. In 2005 Delhi granted 919
commutations; in 2006 Delhi granted 806 commutations; and inPage 120
120
2007 Delhi granted 726 commutations. A correspondingly high
number of death sentences were not awarded in Delhi in the
relevant years, but it is difficult to say whether there were 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 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.
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
STATE/U.T. CONVICTS
SENTENCED TO
DEATH
CONVICTS WHOSE
SENTENCE
COMMUTED TO LIFE
IMPRISONMENT
EXECUTEDPage 121
121
Andhra
Pradesh
8 3 0
Assam 21 97 0
Bihar 132 343 0
Chhattisgar
h
18 24 0
Goa 1 0 0
Gujarat 57 3 0
Haryana 31 23 0
Himachal
Pradesh
3 2 0
Jharkhand 81 300 0
Jammu &
Kashmir
20 18 0
Karnataka 95 2 0
Kerala 34 23 0
Madhya
Pradesh
87 62 0
Maharashtr
a
125 175 0
Manipur 3 1 0
Meghalaya 6 2 0
Mizoram 0 0 0
Nagaland 0 15 0
Orissa 33 68 0
Punjab 19 24 0Page 122
122
Rajasthan 38 33 0
Sikkim 0 0 0
Tamil Nadu 95 24 0
Tripura 2 9 0
Uttar
Pradesh
370 458 0
Uttarakhand 16 46 0
West Bengal 79 98 1
Total 1374 1853 1
Chandigarh 4 3 0
Dadra &
Nagar
Haveli
0 0 0
Daman &
Diu
4 0 0
Delhi 71 2462 0
Lakshadwee
p
0 2 0
Pondicherry 2 1 0
Total 81 2468 0
Grand
Total
1455 4321 1Page 123
123
70. The significance of these figures is that even though 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
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?
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 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
Page 124
124
not become a matter of uncertainty nor should converting a death
sentence into imprisonment for life become a matter of chance.
Perhaps 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.
72. It does prima facie appear that 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
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 diametrically opposite opinion and has
commuted the death penalty.
This may also need to be
considered by the Law Commission of India.
Page 125
125
Conclusion:
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 should
run consecutively.
74. The appeals are disposed of accordingly.
............….……………………..J.
(Madan B. Lokur)
New Delhi;
April 25, 2013
