SHANKAR KISANRAO KHADE vs. STATE OF MAHARASHTRA

1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Shankar Kisanrao Khade … Appellant Versus State of Maharashtra … Respondent J U D G M E N T K.S. Radhakrishnan, J. JUDGMENT 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. Page 1 2 2. Appellant, Shankar Kisanrao Khade (Accused No.1) and his present wife Mala Shankar Khade (Accused No.2) were charge sheeted,

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 JUDGMENT 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 Page 2 3 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

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 JUDGMENT 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 Page 3 4 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

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 JUDGMENT 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 Page 4 5 Jawarkar at about 9.00 pm. and after committing rape strangulated and murdered her. Vinod Jaswarkar (PW 14) and Sanjay (PW 9) found 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. JUDGMENT 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) Page 5 6 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,

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 st guilty and convicted the 1 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 JUDGMENT 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 Page 6 7 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

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 JUDGMENT 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. Page 7 8 8. Ms. Aparjita Singh, learned counsel appearing for the respondent- State submitted that the prosecution has succeeded in proving the guilt

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 JUDGMENT 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 Page 8 9 committing various crimes. Reference was made to Crime No.18 of 2006, charged against the accused for committing the offence under

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 JUDGMENT judgments of this Court in Bachan Singh v. State of Punjab (1980) 2 SCC 684, Mohd. Chaman vs. State (NCT of Delhi) (2001) 2 SCC 28, Surendra Pal Shivbalakpal vs. State of Gujarat (2005) 3 SCC 127, State of Maharashtra v. Mansingh (2005) 3 SCC 131 and State of Rajasthan v. Kashi Ram (2006) 12 SCC 254. Page 9 10 10. Learned counsel appearing for the prosecution placed reliance on the judgments of this Court in Gurmukh Singh v. State of Haryana

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 JUDGMENT 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. Page 10 11 (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 .

(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. JUDGMENT (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 th years on the date of the incident and was studying in the 4 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. Page 11 12 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 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 JUDGMENT 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. Page 12 13 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.

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 JUDGMENT 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 Page 13 14 place. Accused then took away the girl on his bicycle leaving his wife in the house of PW8.

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 JUDGMENT 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. Page 14 15 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.

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: JUDGMENT (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. Page 15 16 (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:

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. JUDGMENT 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 Page 16 17 support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be complete so as not to

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 JUDGMENT girl, after striking a balance between the aggravating and mitigating circumstances. Several other factors like the young age of the accused, the possibility of reformation, lack of intention to murder consequent to rape etc. have also gone into the judicial mind. Page 17 18 20. In Bachan Singh (supra), while determining the constitutional validity of the death penalty, this Court also examined the sentencing

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 JUDGMENT 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, Page 18 19 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

criminal were not seen addressed. Stress was more on “crime test”.

This Court, in this case, was hearing a writ petition moved by a convict, not to extend the death sentence. Writ Petition was dismissed Page 19 20 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

JUDGMENT and pre-planned murder without any provocation, after committing rape on an innocent and defenceless young girl of 18 years exists in a rarest of rare cases which calls for no punishment other than capital punishment. Paras 14 and 15 of the judgment would indicate that this Court was more on crime test, not on criminal test, which are extracted below: Page 20 21 “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.” JUDGMENT Page 21 22

there was not much discussion on the mitigating circumstances to satisfy

JUDGMENT how diabolically the accused had conceived his plan and brutally executed it in such a calculated cold blooded and brutal murder of a very tender age girl after committing rape on her which, according to the Court, undoubtedly falls in the rarest of rare case attracting no punishment other than capital punishment. Page 22 23 In this case aggravating circumstances, that is, “crime test” is seen fully satisfied, but on mitigating circumstances (criminal test), this Court

Page 23 24 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

This Court dealt with a case of rape followed by murder of a 7 year JUDGMENT 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 Page 24 25 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

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gruesome manner in which rape was committed and the way in which JUDGMENT she was strangulated to death and the dead body was immersed in the septic tank. On sentence, the Court held as follows:

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JUDGMENT of rarest of rare cases.

This Court confirmed death sentence in a case where a minor girl of 5 years was raped and murdered. This Court, following the principles

murder is an innocent child or a helpless woman or old or infirm person Page 27 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

the horrendous manner in which the girl aged 9 years was done to death JUDGMENT 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.

Page 28 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

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 29 30 circumstances to be taken note of before awarding sentence and what are the principles to be followed, while awarding death sentence. The Court

JUDGMENT punishment.

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 30 31 commuted death penalty to life imprisonment. The Court noticed that the evidence did not indicate the girl was absolutely unwilling but rather

JUDGMENT 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 31 32

This Court commuted death sentence to that of life imprisonment

imprisonment where a girl of 4 years old was raped and murdered. JUDGMENT 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.

Page 32 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

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.

accused committing rape and murder of a girl of 8 years. It was noticed JUDGMENT 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.

Page 33 34 This Court commuted death sentence to that of life imprisonment in a case where the accused aged 36 years had committed rape and

JUDGMENT 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.

death sentence and cases where this Court had commuted death Page 34 35

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Page 39 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 JUDGMENT 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 40 41

fact that she was a minor girl with moderate intellectual disability, an JUDGMENT 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 41 42

as well as stated in the report the ghastly manner in which the crime was

JUDGMENT against the accused. Criminal Test

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 42 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

independently satisfied against the accused. JUDGMENT

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 43 44

intellectually challenged and elders like the accused have an obligation

JUDGMENT Previous Criminal Record of the Accused

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 44 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,

view, the mere pendency of criminal cases as such cannot be an aggravating factor to be taken note of while granting appropriate

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 45 46

High Court was, therefore, in error in holding that those are relevant JUDGMENT factors to be considered in awarding appropriate sentence.

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 46 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

reported the said fact to the police, possibly due to the reason that there Page 47 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

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?

given facilities to develop in a healthy manner and in conditions of freedom and dignity.

undertake all appropriate national, bilateral and multilateral measures to Page 48 49 prevent the inducement or coercion of child to engage in any unlawful sexual activity, the exploitative use of children in prostitution or other

JUDGMENT 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.

(94.2%) cases. Parents / close family members were involved in 1.2% Page 49 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.

JUDGMENT Crimes against Children in the country and % variation in 2011 over 2010

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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).

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 51 52

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.” JUDGMENT

abused by persons known to them or who have influence over them. Page 52 53 Criminal Courts in this country are galore with cases where children are abused by adults addicted to alcohol, drugs, depression, marital discord

also do more harm to the victim. Further, they also take shelter pointing JUDGMENT 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 53 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

JUDGMENT 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.

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 54 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

JUDGMENT 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 55 56

inclined to convert death sentence awarded to the accused to rigorous imprisonment for life and that all the sentences awarded will run consecutively. Page 56 57

directions to various stake-holders for due compliance:

JUDGMENT the child or to the family members.

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 57 58

physical, sexual and emotional abuse. Institutions which house

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 58 59

know that a minor child below the age of 18 years was subjected to

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.

all measures as provided under Section 43 of the Act 32/2012 to Page 59 60 give wide publicity of the provisions of the Act through media including television, radio and print media, at regular intervals, to

New Delhi April 25, 2013 JUDGMENT Page 60 61 REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPEAL NOS. 362-363 OF 2010 Shankar Kisanrao Khade …..Appellant Versus State of Maharashtra …..Respondent J U D G M E N T JUDGMENT 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 61 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 JUDGMENT 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 62 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

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: JUDGMENT 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 63 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

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 JUDGMENT 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 64 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.” JUDGMENT 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 65 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

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 JUDGMENT 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 66 67

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 JUDGMENT 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 67 68 continue being a threat to society; and he was not the main perpetrator of the crime. It was held:

JUDGMENT 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 68 69 principle did not arise in this case apparently because the crime had no ‘exceptional’ feature. This Court noted as follows:

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 JUDGMENT 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 69 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.” JUDGMENT Page 70 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

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 JUDGMENT Page 71 72

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 JUDGMENT 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 72 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.”

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.” JUDGMENT 17. In State of Maharashtra v. Bharat Fakira Dhiwar, (2002) 1 SCC 622 this Court converted the death sentence to Page 73 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:

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 JUDGMENT 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 74 75

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: JUDGMENT “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 75 76 conclusion. We do not think that the death penalty was warranted in this case.”

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.” JUDGMENT 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 76 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:

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 JUDGMENT 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 77 78

“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.” JUDGMENT 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 78 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

“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 JUDGMENT 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 79 80 future; and there was nothing to suggest that he was not capable of reform. It was held:

“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. JUDGMENT “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 80 81 Penal Code; the other part of the sentence being retained as it is.”

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. JUDGMENT Page 81 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….”

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 JUDGMENT 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 82 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

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.” JUDGMENT Broad analysis: Page 83 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

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 JUDGMENT 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 84 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

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 JUDGMENT 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 85 86 leads to no other inference except that of his guilt and excludes every hypothesis of his innocence……...

31. In Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220 this Court confirmed the death sentence of JUDGMENT 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 86 87 complaint made by her against him. This is what this Court had to say:

“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……..” JUDGMENT Page 87 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

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.” JUDGMENT 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 88 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:

JUDGMENT 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 89 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:

JUDGMENT 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 90 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

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…… JUDGMENT “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 91 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

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.” JUDGMENT Page 92 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

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.” JUDGMENT 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 93 94 they were admonished by the village elders and the Panchayat and asked to mend their ways. It was held:

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.” JUDGMENT 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 94 95 the depraved acts of the accused in raping and murdering a 9 year old child. This Court held:

“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.” JUDGMENT 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 95 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

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. JUDGMENT “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 96 97 awarded death sentence. In essence all the six accused persons deserve death sentence.”

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 JUDGMENT 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 97 98

“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." JUDGMENT 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 98 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

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. JUDGMENT Page 99 100

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, JUDGMENT 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 100 101

“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.” JUDGMENT 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 101 102 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

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 JUDGMENT 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 102 103 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

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 JUDGMENT 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 103 104 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 .

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 JUDGMENT 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 104 105 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

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 JUDGMENT 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 105 106 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

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 JUDGMENT 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 106 107 further direction that he shall not be released till the rest of his life.

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. JUDGMENT “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 107 108 55. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 this Court converted the death sentence of the accused to

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. JUDGMENT Page 108 109 “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.”

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. JUDGMENT “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 109 110 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

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. JUDGMENT “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 110 111 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).”

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 JUDGMENT Page 111 112

60. In Gurvail Singh v. State of Punjab, (2013) 2 SCC 713 JUDGMENT 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 112 113

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 JUDGMENT 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 113 114 Court directed that he should undergo the sentence for that crime after serving out his life sentence. It was held:

“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. JUDGMENT Page 114 115 “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 JUDGMENT 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 115 116 punishment for the offence punishable under Section 376(2)(g) of the IPC consecutively, after serving the sentences for other offences. It was held:

JUDGMENT Page 116 117 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,

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, JUDGMENT 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 117 118 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

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 JUDGMENT 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 118 119 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

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 JUDGMENT 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 119 120 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

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 JUDGMENT the publications of the NCRB, are compiled in the following chart: DETAILS OF DEATH SENTENCE DURING 2001 TO 2011

Page 120 121

Page 121 122

Page 122 123 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

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 JUDGMENT 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 123 124 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

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 JUDGMENT 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 124 125 Conclusion: 73. While agreeing with my learned Brother Justice Radhakrishnan that the conviction of the appellant should be

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 JUDGMENT Page 125