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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 1

st

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.

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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 4

th

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.

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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:

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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.

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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 mitigating

Page 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 death

Page 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 pre-

ordained manner and that the death resulted in the course of

commission of another crime and that there was a possibility

of it being construed as consequences to the commission of

the primary crime.

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 economic

Page 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 the

Page 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 there

Page 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 11

th

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 age-

group 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 30

Page 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 19

th

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, sexually-

related or making obscene representation of a child or children)

through the use of any medium, shall provide such information

to the Special Juvenile Police Unit, or to the local police, as the

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 local

Page 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 3

rd

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 sub-

section (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, 2013

Page 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 views

Page 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. In

Page 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 not

Page 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 rare

Page 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 committing

Page 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 the

Page 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 these

Page 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 to

Page 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 of

Page 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 a

Page 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 incident

Page 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 and

Page 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 dismal

Page 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 the

Page 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 petitioner

Page 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 a

Page 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 as

Page 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 woman

Page 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 cold-

blooded and brutal without any provocation. It certainly

makes it a rarest of the rare cases in which there are no

extenuating or mitigating circumstances.

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 of

Page 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 to

Page 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 also

Page 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 the

Page 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. It

Page 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, Jai

Page 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 death

Page 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 and

Page 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 a

Page 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 accepting

Page 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 and

Page 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, this

Page 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 undergo

Page 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 has

Page 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 with

Page 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 in

Page 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

EXECUTED

Page 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 0

Page 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 1

Page 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