# SHANKAR KISANRAO KHADE v. STATE OF MAHARASHTRA

- **Citation:** [2013] 6 S.C.R. 949
- **Court:** Supreme Court of India
- **Decided:** 2013-04-25
- **Case number:** Criminal Appeal No. 362-363 of 2010
- **Bench:** K.S. Radhakrishnan, Madan B. Lokur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shankar-kisanrao-khade-v-state-of-maharashtra-29332
- **Pages:** 105

## Headnote

Penal Code, 1860 - ss. 302, 376, 366-A, 363 rlw. s. 34
- Rape and murder of minor and intellectually challenged girl
A
B
- By the accused aged about 52 years - Conviction and death c
sentence by courts below - Held: In view of the evidence of
· the case, guilt of the accused proved beyond reasonable
doubt - Conviction upheld - However, sentence of death
reduced to life imprisonment - All other sentences awarded,
directed to run consecutively.
o
Evidence - Circumstantial evidence - Standard of proof
- Held: Circumstances relied upon, must be fully established
and chain of the circumstances must be complete, so as not
to leave any reasonable ground for a conclusion consistent
with the innocence of the accused.
E
F
Crime Against Children - Sexual assault - On minor
children - Held: It is the duty of the State to protect the children
from all forms of sexual exploitation and abuse - It is a/so
duty of evel)' citizen to report the act of assault or abuse on a
minor child to the police or Juvenile Justice Board - While
dealing with an issue of child abuse, approach of the court
should be child centric - Proper and sufficient safeguards a/so
need to be provided to persons who come forward to report
such incidents - Supreme Court as a parens patriae, gave
G
certain directions to the State authorities, to educational
institutions, medical institutions and homes wherever children
are housed, to media, hotels, lodge, clubs, studios for
protection of children from sexual abuse - Further directed
949
H
950
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A that non-reporting of such crime would be a serious crime -
Constitution of India, 1950 - Articles 15(3) and 39 - United
Nations Convention on the Rights of Children - Articles 3(2)
and 34 - Protection of Children from Sexual Offences Act,
2012.
B
Sentence/Sentencing:
Death sentence - Award of - Held: While awarding death
sentence, the courts should apply 'crime test', 'criminal test'
and 'rarest if rare test' - 'Crime test' has to be fully satisfied
c i.e. 100%, 'criminal test' i.e. no mitigating circumstance
favouring the accused should be 0% - 'Rarest of rare test'
should be 'society centric' and not Judge centric'.
Death sentence - Award of - By treating pendency of
criminal case against the accused as aggravating
D circumstance - Propriety of - Held: Pendency of criminal
cases as such is not aggravating circumstance unless the
accused is found guilty and convicted in those cases.
Death sentence - Rarest of Rare case principle -
E Applicability of - Held: Per Madan Lokur, J. - The principle
of rarest of rare cases is based on comparative evaluation of
the case with other cases - Due to lack of empirical data for
making two fold comparison, the application of the rarest of
rare principle becomes extremely delicate, thereby making
F the awarding of death sentence subjective or judge-centric -
While converting the death sentence to life imprisonment, the
judiciary applies the rarest of rare principle and the executive
applies the factors not known to the courts - Since the two
important organs of the State treat the life convicts with different
G standards, it is imperative that courts lay down jurisprudential
basis for awarding the death penalty - Death penalty and its
execution should not become matter of uncertainty - Law
Commission of India should examine whether death penalty
is a deterrent punishment or is retributive justice or seNes an
H
SHANKAR KISANRAO KHADE v. STATE OF
951
MAHARASHTRA
incapacitative goal - Code of Criminal Procedure, 1973 - s.
A
432 - Constitution of India, 1950 - Arts. 72 and 161.
Death sentence - Commutation of - Need to record
reasons for commuting the sentence - Held: Per Madan
Lokur, J. - Normal rule is awarding life sentence and reasons
B
are required to be recorded while awarding death sentence -
Therefore, courts not required to record reasons for
commuting death sentence to life imprisonment.
Appellant-accused No.1 and his wife accused No.2
were charged for th

## Text

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[2013] 6 S.C.R. 949
SHANKAR KISANRAO KHADE
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 362-363 of 2010)
APRIL 25, 2013
[K.S. RADHAKRISHNAN AND MADAN B. LOKUR, JJ.)
Penal Code, 1860 - ss. 302, 376, 366-A, 363 rlw. s. 34
- Rape and murder of minor and intellectually challenged girl
A
B
- By the accused aged about 52 years - Conviction and death c
sentence by courts below - Held: In view of the evidence of
· the case, guilt of the accused proved beyond reasonable
doubt - Conviction upheld - However, sentence of death
reduced to life imprisonment - All other sentences awarded,
directed to run consecutively.
o
Evidence - Circumstantial evidence - Standard of proof
- Held: Circumstances relied upon, must be fully established
and chain of the circumstances must be complete, so as not
to leave any reasonable ground for a conclusion consistent
with the innocence of the accused.
E
F
Crime Against Children - Sexual assault - On minor
children - Held: It is the duty of the State to protect the children
from all forms of sexual exploitation and abuse - It is a/so
duty of evel)' citizen to report the act of assault or abuse on a
minor child to the police or Juvenile Justice Board - While
dealing with an issue of child abuse, approach of the court
should be child centric - Proper and sufficient safeguards a/so
need to be provided to persons who come forward to report
such incidents - Supreme Court as a parens patriae, gave
G
certain directions to the State authorities, to educational
institutions, medical institutions and homes wherever children
are housed, to media, hotels, lodge, clubs, studios for
protection of children from sexual abuse - Further directed
949
H
950
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A that non-reporting of such crime would be a serious crime -
Constitution of India, 1950 - Articles 15(3) and 39 - United
Nations Convention on the Rights of Children - Articles 3(2)
and 34 - Protection of Children from Sexual Offences Act,
2012.
B
Sentence/Sentencing:
Death sentence - Award of - Held: While awarding death
sentence, the courts should apply 'crime test', 'criminal test'
and 'rarest if rare test' - 'Crime test' has to be fully satisfied
c i.e. 100%, 'criminal test' i.e. no mitigating circumstance
favouring the accused should be 0% - 'Rarest of rare test'
should be 'society centric' and not Judge centric'.
Death sentence - Award of - By treating pendency of
criminal case against the accused as aggravating
D circumstance - Propriety of - Held: Pendency of criminal
cases as such is not aggravating circumstance unless the
accused is found guilty and convicted in those cases.
Death sentence - Rarest of Rare case principle -
E Applicability of - Held: Per Madan Lokur, J. - The principle
of rarest of rare cases is based on comparative evaluation of
the case with other cases - Due to lack of empirical data for
making two fold comparison, the application of the rarest of
rare principle becomes extremely delicate, thereby making
F the awarding of death sentence subjective or judge-centric -
While converting the death sentence to life imprisonment, the
judiciary applies the rarest of rare principle and the executive
applies the factors not known to the courts - Since the two
important organs of the State treat the life convicts with different
G standards, it is imperative that courts lay down jurisprudential
basis for awarding the death penalty - Death penalty and its
execution should not become matter of uncertainty - Law
Commission of India should examine whether death penalty
is a deterrent punishment or is retributive justice or seNes an
H
SHANKAR KISANRAO KHADE v. STATE OF
951
MAHARASHTRA
incapacitative goal - Code of Criminal Procedure, 1973 - s.
A
432 - Constitution of India, 1950 - Arts. 72 and 161.
Death sentence - Commutation of - Need to record
reasons for commuting the sentence - Held: Per Madan
Lokur, J. - Normal rule is awarding life sentence and reasons
B
are required to be recorded while awarding death sentence -
Therefore, courts not required to record reasons for
commuting death sentence to life imprisonment.
Appellant-accused No.1 and his wife accused No.2
were charged for the offences punishable u/ss. 363, 366C
A, 376, 302, 201 r/w s. 34 IPC, for having, in furtherance
of their common intention, kidnapped a minor girl with
intellectual disability and then accused No.1 committed
rape on her several times and committed her murder by
strangulation. Trial court, relying on the witnesses and D
documentary evidence, convicted appellant-accused
No.1 u/ss. 302, 376, 366-A, 363 r/w. s.34 IPC and
sentenced him to death u/s. 302 IPC alongwith
punishment for other offences. Accused No.2 was
convicted for the offences punishable u/s.363A r/w. s. 34 E
IPC and was sentenced to 5 years RI.
Accused No.1
preferred appeal before High Court, which was dismissed
and his death sentence was confirmed. Hence the
present appeal.
Dismissing the appeal, and converting the death
sentence to life imprisonment, the Court
HELD:
Per K.S. Radhakrishnan. J.
1.1. The standard of proof required to convict a
person on circumstantial evidence is that the
circumstances relied upon in support of the conviction
must be fully established and the chain of evidence
F
G
H
952
SUPREME COURT REPORTS
(2013] 6 S.C.R.
A
furnished by those circumstances must be complete so
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused. In view of
t~!I evidence, it was the accused who had committed the
crime~ The trial court as. well as the High Court have
s correctly appreciated the evidence and documents
adduced and fo\Jnd that the guilt of the accused is
proved beyond reasonable doubt. [Para 18] [981-C-D]
1.2. Facts in the present case indicate that the
deceased was aged about 11 years on the date of the
C incident. PW 10, PW 11, PW 12 and PW 13 stated how the
girl was taken from the house of PW 13 and travelled to
difference places. Another clinching evidence which
conclusively proved that the girl was in the company of
the accused and his wife, was the evidence of PW 8. He
D deposed that the accused along with his wife and a minor
girl came to his house. The accused and his wife requested
that they be permitted to stay during night which PW 8
agreed. During night PW 8 heard the girl weeping and
became curious and when it was found that the accused
E was having sexual intercourse with the minor girl. PW 8
asked the accused and his wife to leave the place.
Accused then took away the girl on his bicycle leaving
his wife in the house of PW8. The above facts clearly
establish that the girl was last seen with the accused.
F
Evidence of PW8 discloses that the girl and the accused
were seen together at a point of time in proximity with the
time and date of the commission of the offence. Last seen
theory was successfully established by the prosecution
beyond any reasonable doubt. Evidence of PW 8 is very
G crucial and there is nothing to show that he had any enmity
or grudge against the accused so as to implicate him. PW8
had no difficulty in identifying the accused since he knew
them earlier. [Paras 12, 13, 14 and 15] [978-B, D, G-H; 979B-E, H; 980-A-B]
H
SHANKAR KISANRAO KHADE v. STATE OF
953
MAHARASHTRA
1.3. Medical evidence clearly indicates that the cause
A
of the death was asphyxia due to strangulation and
though there was clear evidence of carnal intercourse,
the accused was not charged for that offence. On a close
scrutiny of the evidence, it can safely be concluded that
the deceased girl was subjected to the acts of rape for
B
more than one occasion. [Para 17] [980-H; 981-A-B]
2.1. The tests that the courts have to apply, while
awarding death sentence, are "crime tesf', "criminal tesf'
and the 'Rarest of Rare Test'(R-R Test) and not "balancing
C
tesf'. To award death sentence, the "crime test" has to
be fully satisfied, that is 100% and "criminal test" 0%, that
is no Mitigating Circumstance favouring the accused. If
there is any circumstance favouring the accused, like lack
of intention to commit the crime, possibility of
reformation, young age of the accused, not a menace to
D
the society, no previous track record etc., the "criminal
test" may favour the accused to avoid the capital
punishment. Even, if both the tests are satisfied that is
the aggravating circumstances to the fullest extent and
no mitigating circumstances favouring the accused, still
E
the courts have to apply finally the R-R Test. R-R Test
depends upon the perception of the society that is
"society centric" and not "Judge centric" that is, whether
the society will approve the awarding of death sentence
to certain types of crimes or not. While applying that test,
F
the Court has to look into variety of factors like society's
abhorrence, extreme indignation and antipathy to certain
types of crimes like sexual assault and murder of minor
girls intellectually challenged, suffering from physical
disability, old and infirm women with those disabilities
G
etc .. Courts award death sentence since situation
demands so, due to constitutional compulsion, reflected
by the will of the people and not the will of the judges.
[Para 28] [997-C-H]
H
954
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A
Sangeet and Ors. vs. State of Haryana (2013) 2 SCC
452: 2012 (13) SCR 85 - relied on.
2.2. in the present case, so far as enormity of the
crime and execution thereof i.e. 'Crime Test' is concerned,
8 the victim was aged 11 years, totally innocent,
defenceless and having moderate intellectual disability.
She was physically handicapped, and was having
moderate mental retardation. Evidence of PW 10, PW 12
and PW13 also corroborates the fact that she was a minor
C girl with moderate intellectual disability, an aggravating
circumstance which goes against the accused: In view
of the ghastly manner in which the crime was executed,
the action of accused, not only was inhuman but barbaric.
Ruthless crime of repeated actions of rape followed by
murder of a young minor girl who was having moderate
D intellectual disability, shocks not only the judicial
conscience, but the conscience of the society. Thus the
crime test has been satisfied fully against the accused.
[Paras 29 to 32] [998-A-D, E, F-G]
E
2.3. In the facts and circumstances of the case,
criminal test has been fully satisfied against the accused.
The accused was aged 52 years at the time of incident, a
fatherly figure for the minor child. The accused was an
able bodied person and was the father of two children.
F The accused repeatedly raped the girl for few days,
ultimately strangulated her to death. Intellectually
challenged minor girls will not be safe in our society if the
accused is not given adequate punishment. Considering
the age of the accused, a middle ager of 52 years,
G reformation or rehabilitation is practically ruled out. The
only mitigating circumstance stated was that the accused
is having two sons aged 26 and 27 years and are
dependent on him, which is not a mitigating
circumstance and the "criminal test" is fully satisfied
H
SHANKAR KISANRAO KHADE v. STATE OF
955
MAHARASHTRA
against the accused. Both the crime test and criminal test A
are, therefore, independently satisfied against the
accused. [Para 33] [998-H; 999-A-D]
2.5. Even though all the tests namely, 'crime test',
'criminal test' and the 'R-R Test' have been satisfied in the B
present case, the extreme sentence of Death penalty is not
warranted. One of the factors which influenced the High
Court to award death sentence was the previous track
record of the accused. The High Court was of the view that
the pendency of criminal cases against the accused was C
a circumstance against the ae.cu.sed. The mere pendency
of few criminal cases as su~h is ilot an aggravating
circumstan~: to· be taken note of while awarding death
sentence unless the accused is found guilty and convicted
in those cases High Court was, therefore, in error in
holding thatthose were relevant factors to be considered D
in awarding appropriate sentence. [Paras 35, 36 and 38]
[999-G; 1ooocc, D; 1001-B]
Mohd. Farooq Abdul Gafur vs. State of Maharashtra
(2010) 14 sec 641: (2009) 12 SCR 1093 - relied on.
E
Gurmugh Singh vs. State of Haryana (2009) 15 SCC
635: 2009 (13) SCR 548 - referred to
2.6. President of India on 3rd February, 2013
promulgated an ordinance titled "The Criminal Law F
(Amendment) Ordinance, 2013, further to amend the CPC,
1973, Indian Evidence Act, 1872 and the Indian Penal
Code, 1860. By the ordinance, ss. 375, 376, 376-A, 376-B,
376-C and 376-D IPC have been substituted by new
Sections. The word "rape" has been replaced by the word G
"sexual assault". Section 375 has also clarified that lack
of physical resistance is immaterial for constituting an
offence. A new s.376-A has been added a person, who
commits an offence punishable under sub-section (1)
and sub-section (2) of s. 376 and causes death shall be H
956
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A
punishable with rigorous imprisonment for a term which
shall not be less than twenty years but which my extend
to imprisonment for life, which shall mean the remainder
of that person's natural life or with death. [Para 53) [1006D-G]
8
c
2.7. Thus, considering the entire facts and
circumstances of the case, the death sentence awarded
to the accused is converted to rigorous imprisonment for
life and all the sentences awarded, are directed run
consecutively. [Para 54) [1007-B]
Bachan Singh VS. State of Punjab (1980) 2 sec 684;
Machhi Singh and' Ors. vs. State of Punjab (1983) 3 SCC
470: 1983 (3) SCR 413; Nathu Garam vs. State of Uttar
Pradesh (1979) 3 SCC 366; Jumman Khan vs. State of Uttar
D Pradesh (1991) 1 SCC 752: 1990 (3) Suppl. SCR 398;
Dhananjoy Chatterjee vs. State of West Bengal (1994) 2 SCC
220: 1994 (1) SCR 37; Laxman Naik vs. State of Orissa
(1994) 3 SCC 381: 1994 (2) SCR 94; Kamta Tiwari vs.
State of Madhya Pradesh (1996) 6 SCC 250: 1996 (5)
E
Suppl. SCR 507; Molai and Anr. vs. State of MP. (1999)
9 sec 581: 1999 (4) Suppl. SCR 104; Bantu VS. State of
Madhya Pradesh (2001) 9 SCC 615: 2001 (4) Suppl.
SCR 298; Devender Pal Singh vs. Government of NCT of
Delhi (2002) 5 SCC 234: 2002 (2) SCR 767; Shivaji @
Dadya Shankar A/hat vs. The State of Maharashtra (2008) 15
F
SCC 269: 2008 (13) SCR 81; Mohd. Mannan@ Abdul
Mannan vs. State of Bihar (2011) 5 SCC 317: 2011 (5)
SCR 518; Rajendra Pralhadrao Wasnik vs. State of
Maharashtra (2012) 4 SCC 37: 2012 (2) SCR 225; Kumudi
Lal vs. State of U.P. (1994) 4 SCC 108; Raju vs. State of
G Haryana (2001) 9 SCC 50: 2001 (3) SCR 409; Bantu alias
Naresh Giri vs. State of M.P. (2001) 9 SCC 615: 2001 (4)
Suppl. SCR 298; State of Maharashtra vs. Suresh (2000) 1
SCC 471: 1999 (5) Suppl. SCR 215; Amrit Singh vs. State
of Punjab AIR 2007 SC 132: 2006 (8) Suppl. SCR 889;
H Rameshbhai Chandubhai Rathod vs. The State of Gujarat
SHANKAR KISANRAO KHADE v. STATE OF
957
MAHARASHTRA
(2011) 2 SCC 764: 2011 (1) SCR 829; Surendra Pal
A
Shivbalak vs. State of Gujarat (2005) 3 SCC 127: 2004 (4)
Suppl. SCR 464; Amit vs. State of Maharashtra (2003) 8
SCC 93: 2003 (2) Suppl. SCR 285; Santosh Kumar
Satishbhushan Bariyar vs. State of Maharashtra
(2009) 6
SCC 498: 2009 (9) SCR 90 - referred to.
B
3. The police after booking the accused for offence
u/s. 377 IPC failed to charge sheet him, in spite of the fact
the medical evidence had clearly established the
commission of carnal intercourse on a minor girl with
C
moderate intellectual disability. PW3, the doctor who
conducted the post mortem, had clearly spelt out the facts
of sodomy in his report as well as in his deposition.
Prosecuting agency also failed in his duty to point out the
same to the court that a case had been made out u/s. 377
IPC. [Para 39) [1001-C-D]
State of Uttar Pradesh vs. Satish (2005) 3 SCC 114:
2005 (2) SCR 1132; Ramreddy Rajesh Khanna Reddy and
Anr. v. State of Andhara Pradesh (2006) 10 SCC 172: 2006
D
(3) SCR 348; Kusuma Ankama Rao v. State of Andhra
E
Pradesh (2008) 13 SCC 257: 2008 (10) SCR 89 - relied on.
4.1. Non-reporting of sexual assault on minor children
is a disturbing trend in our society, which has happened
F
in the present case as well. PW-8 though was witness to
the crime he did not report the said fact to the police,
possibly due to the reason that there was no clear cut
legislative provision casting an obligation on him to
report to the J.J. Board or to the S.J.P.U. dealing with
sexual offences towards children after having witnessed
the incident. A duty cast on every citizen of country, if they
G
witness or come to know any act of sexual assault or
abuse on a minor child to report the same to the police
or to the J.J. Board. They cannot keep mum so as to
screen the culprit from legal punishment. [Paras 40 and
41) [1001-F, H; 1002-A-B]
H
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SUPREME COURT REPORTS
[2013) 6 S.C.R.
A
4.2. Article 15(3) of the Constitution confers upon the
State, powers to make special provision for children.
Article 39 inter alia provides that the State shall, in
particular, direct its policy towards securing that the
tender age of children are not abused and their childhood
B and youth are protected against exploitation and they are
given facilities to develop in a healthy man ner and in
conditions of freedom and dignity. [Para 42] [1002-C-D]
4.3. The United Nations Convention on the Rights of
C Children, rectified by India, requires the State Parties to
undertake all appropriate national, bilateral and
multilateral measures to prevent the inducement or
coercion of child to engage in any unlawful sexual
activity, the exploitative use of children in prostitution or
0 other unlawful sexual practices etc. Articles 3(2) and 34
of the Convention have placed a specific duty on the
State to protect the child from all forms of sexual
exploitation and abuse. [Para 43] [1002-D-F]
4.4. Parliament passed the Act titled The Protection
E of Children from Sexual Offences Act, 2012, which
provides for reporting of sexual offences and the
punishment for failure to report or record punishment for
filing false complaint and/or false information. The Act
also provides for a Justice Delivery System for child
F victims and few other provisions to safeguard the interest
of children. [Para 48] [1003-G-H]
4.5. In large numbers of cases, children are abused
by persons known to them or who have influence over
G them. Criminal Courts in this country are galore with
cases where children are abused by adults addicted to
alcohol, drugs, depression, marital discord etc. Preventive
aspects have seldom been given importance or taken
care of. Penal laws focus more on situations after
commission of offences like violence, abuse, exploitation
H
SHANKAR KISANRAO KHADE v. STATE OF
959
MAHARASHTRA
of the children. Witnesses of many such heinous crimes
A
often keep mum taking shelter on factors like social
stigma, community pressure, and difficulties of
navigating the criminal justice system, total dependency
on perpetrator emotionally and economically and so on.
Sexual abuse can be in any form like sexually molesting
B
or assaulting a child or allowing a child to be sexually
molested or assaulted or encouraging, inducing or
forcing the child to be used for the sexual gratification of
another person, using a child or deliberately exposing a
child to sexual activities or pornography or procuring or C
allowing a child to be procured for commercial
exploitation and so on. [Para 50] [1004-H; 1005-A-C, D-E]
4.6. Whenever the Court deals with an issue of child
abuse, it must apply the best interest child standard,
since best interest of the child is paramount and not the
interest of perpetrator of the crime. The approach must
be child centric. Complaints received from any quarter,
D
of course, have to be kept confidential without casting
any stigma on the child and the family members. But, if
the tormentor is the family member himself, he shall not
E
go scot free. Proper and sufficient safeguards also have
to be given to the persons who come forward to report
such incidents to the police or to the Juvenile Justice
Board. [Para 51] [1005-F-H]
F
4.7. The conduct of the police for not registering a
case u/s. 377 IPC against the accused, the agony
undergone by a child of 11 years with moderate
intellectual disability, non-reporting of offence of rape
committed on her, after having witnessed the incident G
either to the local police or to the J.J. Board, compels the
Court to give certain directions for compliance in future
which are necessary to protect the children from such
sexual abuses. This Court as parens patriae has a duty
to do so because Court has guardianship ove~ minor
H
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SUPREME COURT REPORTS
[2013] 6 S.C.R.
A children, especially with regard to the children having
intellectual disability, since they are suffering from legal
disability. Prompt reporting of the crime in this case could
have perhaps, saved the life of a minor child of moderate
intellectual disability. [Para 52] [1006-A-C]
B
Mohd. Chaman vs. State (NCT of Delhi) (2001) 2 SCC
28; Surendra Pal Shivbalakpal vs. State of Gujarat (2005) 3
SCC 127: 2004 (4) Suppl. SCR 464; State of Maharashtra
vs. Mansingh (2005) 3 SCC 131; State of Rajasthan vs. Kashi
C Ram (2006) 12 SCC 254: 2006 (8) Suppl. SCR 501; Sushi/
Murmu vs. State of Jharkhand (2004) 2 SC 338: 2003 (6)
Suppl. SCR 702; Shivu and Anr. vs. Registrar General,
High Court of Kamataka and Anr. (2007) 4 SCC 713: 2007
(2) SCR 555; B.A. Umesh vs. Registrar General, High Court
of Karnataka (2011) 3 SCC 85: 2011 (2) SCR 367; Mohd.
D Mannan Alias Abdul Mannan vs. State of Bihar (2011) 5 SCC
317: 2011 (5) SCR 518; Sebastian vs. State of Kera/a (2010)
1 SCC 58; Aloke Nath Dutta and Ors. vs. State of West
Bengal (2007) 12 SCC 230:
2006 (10)
Suppl.
SCR 662; Swamy Shraddananda Alias Murali Manohar
E Mishra vs. State of Karnataka (2007) 12 SCC 288: 2007 (7)
SCR 616 - referred to.
Per Madan B. Lokur, J. (Concurring)
1. In *Swamy Shraddananda (2) case this Court noted
F that the expression "the rarest of rare cases" in **Bachan
Singh case indicated a relative category based on a
comparison with other cases. The Court also expressed
the view that there is hardly any field available for
comparison. In other words, the Court highlighted the
G difficulty in the practical application of the "rarest of rare"
principle since there is a lack of empirical data for making
the two-fold comparison. It is this inability to make a
comparative evaluation and clarity on the issue due to a
lack of information and any detailed study that the
H application of the rarest of rare principle becomes
SHANKAR KISANRAO KHADE v. STATE OF
961
MAHARASHTRA
extremely delicate thereby making the awarding of a
A
death sentence subjective or judge-centric. [Paras 2 and
3) (1009-G; 1010-A-D]
**Bachan Singh vs. State of Punjab (1980) 2 SCC 684
- followed.
*Shraddananda (2) vs. State of Karnataka (2008) 13
SCC 767: 2008 (11) SCR 93; Sangeet and Ors. vs. State
of Haryana (2013) 2 SCC 452: 2012 (13) SCR 85 - referred
to.
2. The Constitution Bench in Bachan Singh case
concluded that normally the punishment for murder is life
imprisonment and a death penalty may be imposed only
B
c
if there are special reasons for doing so. In other words,
special reasons are required to be recorded not for
awarding life imprisonment but for awarding death
D
sentence. It was further held that the normal rule is of
awarding life sentence but death sentence may be
awarded only if the alternative of life sentence is
unquestionably foreclosed. Therefore, this Court is not
required to record reasons for commuting the death
E
sentence to one of life imprisonment - it is only required
to record reasons for either confirming the death
sentence or awarding it. [Paras 5 to 7) (1011-8-C, E, H;
1012-A]
Bachan Singh vs. State of Punjab (1980) 2 SCC 684 -
followed.
3.1. There are several reasons, cumulatively taken,
for converting the death penalty to that of imprisonment
F
for life. However, some of the factors that have had an
G
influence in commutation include (1) the young age of the
accused; (2) the possibility of reforming and rehabilitating
the accused; (3) the accused had no prior criminal
record; (4) the accused was not likely to be a menace or
threat or danger to society or the community. A few other
H
962
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A reasons such as the accused having been acquitted by
one of the Courts; the crime was not premeditated; the
case was one of circumstantial evidence. Commutation
has also been ordered since there was apparently no
'exceptional' feature warranting a death penalty and
B because the Trial Court had awarded life sentence but the
High Court enhanced it to death. [Para 29] [1024-H; 1025A-F]
Nirmal Singh vs. State of Haryana (1999) 3 SCC 670:
1999 (2) SCR 1; Kumudi Lal vs. State of Uttar Pradesh (1999)
C 4 SCC 108; Akhtar vs. State of Uttar Pradesh (1999) 6 SCC
60; State of Maharashtra vs. Suresh (2000) 1 SCC 471;
Mohd. Chaman vs. State (NCT of Delhi) (2001) 2 SCC 28;
Raju vs. State of Haryana (2001) 9 SCC 50: 2001
(3) SCR 409; State of Maharashtra vs. Bharat Fakira Dhiwar
D (2002) 1 SCC 622: 2001 (5) Suppl. SCR 12; Amit vs. State
of Maharashtra (2003) 8 SCC 93: 2003 (2) Suppl.
SCR 285; Surendra Pal Shivbalakpal vs. State of Gujarat
(2005) 3 SCC 127: 2004 (4) Suppl. SCR 464; State of
Maharashtra vs. Mansingh (2005) 3 SCC 131; Rahul vs.
E State of Maharashtra (2005) 10 SCC 322; Amrit Singh vs.
State of Punjab (2006) 12 SCC 79: 2006 (8) Suppl.
SCR 889; Bishnu Prasad Sinha vs. State of Assam (2007)
11 SCC 467: 2007 (1) SCR 916; Santosh Kumar Singh vs.
State (2010) 9 SCC 7 47: 2010 (13) SCR 901; Rameshbhai
F Chandubhai Rathod (2) vs. State of Gujarat (2011) 2 SCC
764: 2011 (1) SCR 829; Haresh Mohandas Rajput vs. State
of Maharashtra (2011) 12 SCC 56: 2011 (14) SCR 921; Amit
vs. State of Uttar Pradesh (2012) 4 SCC 107:
2012 (1)
SCR 1009 - referred to.
G
3.2. The principal reasons for confirming the death
penalty include (1) the cruel, diabolic, brutal, depraved
and gruesome nature of the crime; (2) the crime results
in public abhorrence, shocks the judicial conscience or
the conscience of society or the community; (3) the
H reform or rehabilitation of the convict is not likely or that
SHANKAR KISANRAO KHADE v. STATE OF
963
MAHARASHTRA
he would be a menace to society; (4) the victims were
A
defenceless; (5) the crime was either unprovoked or that
it was premeditated. The antecedents or the prior history
of the convict was taken into consideration. [Para 45]
[1037-0-H; 1038-A]
B
Jumman Khan vs. State of Uttar Pradesh (1991) 1 SCC
752: 1990 (3) Suppl. SCR 398; Dhananjoy Chatterjee vs.
State of West Bengal (1994) 2 SCC 220:1994 (1) SCR 37;
Laxman Naik vs. State of Orissa (1994) 3 SCC 381: 1994 (2)
SCR 94; Kamta Tiwari vs. State of Madhya Pradesh (1996)
C
6 SCC 250: 1996 (5) Suppl. SCR 507; Nirmal Singh vs.
State of Haryana (1999) 3 SCC 670: 1999 (2) SCR 1; Jai
Kumar vs. State of Madhya Pradesh (1999) 5 SCC 1: 1999
(3) SCR 426; Molai & Anr. vs. State of M.P. (1999) 9 SCC
581: 1999 (4) Suppl. SCR 104; State of Uttar Pradesh v.
Satish (2005) 3 SCC 114: 2005 (2) SCR 1132; Shivu and
D
Anr. vs. Registrar General, High Court of Karnataka (2007) 4
SCC 713: 2007 (2) SCR 555; Bantu vs. State of Uttar
Pradesh (2008) 11 SCC 113: 2008 (11) SCR 184; Shivaji
vs. State of Maharashtra (2008) 15 SCC 269: 2008 (13)
SCR 81; Ankush Maruti Shinde vs. State of Maharashtra
E
(2009) 6 SCC 667: 2009 (7) SCR 182; B.A. Umesh vs.
Registrar General, High Court of Karnataka (2011) 3 SCC 85:
2011 (2) SCR 367; Mohd. Mannan vs. State of Bihar (2011)
5 SCC 317: 2011 (5) SCR 518; Rajendra Pralhadrao
Wasnik vs. State of Maharashtra (2012) 4 SCC 37: 2012 (2)
F
SCR 225; State of Maharashtra v. Bharat Fakira Dhiwar
(2002) 1 SCC 622: 2001 (5) Suppl. SCR 12 - referred to.
3.3. However, there are cases where the factors taken
into consideration for commuting the death penalty were
G
given a go-bye in cases where the death penalty was
confirmed. The young age of the accused was not taken
into consideration or held irrelevant. The possibility of
reformation or rehabilitation was ruled out, without any
expert evidence. Even though the crime was not H
964
SUPREME COURT REPORTS
(2013) 6 S.C.R.
A premeditated, the death penalty was confirmed.
Circumstantial evidence was held not to be a 'mitigating'
factor. [Para 46] [1038-B-F]
Dhananjoy Chatterjee vs. State of West Bengal (1994)
2 SCC 220: 1994 (1) SCR 37; Rameshbhai Chandubhai
B Rathod (2) vs. State of Gujarat (2011) 2 SCC 764: 2011 (1)
SCR 829; Amit vs. State of Maharashft-a (2003) 8 SCC 93:
2003 (2) Suppl. SCR 285; Rahul vs. State of Maharashtra
(2005) 10 SCC 322; Amrit Singh vs. State of Punjab (2006)
12 SCC 79: 2006 (8) Suppl. SCR 889; Santosh Kumar
C Satishbhushan Bariyar vs. State of Maharashtra (2009) 6
SCC 498: 2009 (9) SCR 90; Amit vs. State of Uttar Pradesh
(2012) 4 SCC 107: 2012 (1) SCR 1009; Jai Kumar vs. State
of Madhya Pradesh (1999) 5 SCC 1: 1999 (3) SCR
426; B.A Umesh vs. Registrar General, High Court of
D Karnataka (2011) 3 SCC 85: 2011 (2) SCR 367; Mohd.
Mannan Alias Abdul Mannan vs. State of Bihar (2011) 5 SCC
317: 2011 (5) SCR 518;Nirmal Singh vs. State of Haryana
(1999) 3 SCC 670: 1999 (2) SCR 1; Mohd.Chaman vs. State
(NCT of Delhi) (2001) 2 SCC 28; Raju vs. State of Haryana
E (2001) 9 SCC 50: 2001 (3) SCR 409; Bantu alias Naresh Giri
vs. State of M.P. (2001) 9 SCC 615: 2001 (4) Suppl. SCR
298; Surendra Pal Shivbalak vs. State of Gujarat (2005) 3
SCC 127: 2004 (4) Suppl. SCR 464; State of Uttar Pradesh
vs. Satish (2005) 3 SCC 114: 2005 (2) SCR 1132; State of
F Tamil Nadu vs. Suresh (1998) 2 SCC 372: 1997 (6) Suppl.
SCR 203; Ankush Maruti Shinde vs. State of Maharashtra
(2009) 6 SCC 667: 2009 (7) SCR 182 - referred to.
4. Bachan Singh case is more than clear that the
crime is important (cruel, diabolic, brutal, depraved and
G gruesome) but the criminal is also important and this, has
been overlooked in several cases in the past. It is this
individualized sentencing that has made this Court wary,
in the recent past, of imposing death penalty and instead
substituting it for fixed term sentences exceeding 14
H years (the term of 14 years or 20 years being erroneously
SHANKAR KISANRAO KHADE v. STATE OF
965
MAHARASHTRA
equated with life imprisonment) or awarding consecutive
A
sentences. [Para 47] [1038-G-H; 1039-A-B]
5. There have been several cases where life sentence
has been awarded by this Court with a minimum fixed
term of incarceration. This Court has been seriously
reconsidering, though not in a systemic manner,
8
awarding life sentence as an alternative to death penalty
by applying (though not necessarily mentioning) the
"unquestionably foreclosed" formula laid down in
Bachan Singh case. The issue as regards the
interpretation of "life sentence" - whether it means C
imprisonment for only 14 years or 20 years or it mean for
the life of the convict has been laid to rest. It has been
unequivocally laid down that a sentence of imprisonment
for life means imprisonment for the rest of the normal life
of the convict. The convict is not entitled to any remission
D
in a case of sentence of life imprisonment, as is
commonly believed. However, if the convict is sought to
be released before the expiry of his life, it can only be by
following the procedure laid down in Section 432 of the
Code of Criminal Procedure or by the Governor E
exercising power under Article 161 of the Constitution or
by the President exercising power under Article 72 of the
Constitution. There is no other method or procedure.
[Paras 48, 65 and 66] [1039-C; 1048-C-G]
Aloke Nath Dutta vs. State of West Bengal (2007) 12
F
SCC 230: 2006 (10) Suppl. SCR 662; Subhash Chander
vs. Krishan Lal (2001) 4 SCC 458: 2001 (2) SCR 864; Shri
Bhagwan vs. State of Rajasthan (2001) 6 SCC 296: 2001 (3)
SCR 656; Prakash Dhawal Khairnar (Patil) vs. State of
Maharashtra (2002) 2 SCC 35: 2001 (5) Suppl. SCR 612;
G
Ram Anup Singh vs. State of Bihar (2002) 6 SCC 686: 2002
(1) SCR 586; Mohd. Munna vs. Union of India (2005) 7 SCC
417: 2005 (3) Suppl. SCR 233; Jayawant Dattatraya
Suryarao vs. State of Maharashtra (2001) 10 SCC 109: 2001
(5) Suppl. SCR 54; Nazir Khan vs. State of Delhi (2003) 8
H
966
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A
SCC 461: 2003 (2) Suppl. SCR 884; Sebastian vs. State
of Kera/a (2010) 1 SCC 58; Ramnaresh vs. State of
Chhattisgarh (2012) 4 SCC 257: 2012 (3) SCR 630; Neel
Kumar vs. State of Haryana (2012) 5 SCC 766: 2012 (5)
SCR 696; Sandeep vs. State of UP. (2012) 6 SCC 107:
s
2012 (5) SCR 952; Brajendrasingh vs. State of Madhya
Pradesh (2012) 4 SCC 289: 2012 (3) SCR 599; State of
Uttar Pradesh vs. Sanjay Kumar (2012) 8 SCC 537: 2012 (7)
SCR 359; Gurvail Singh vs. State of Punjab (2013) 2 SCC
713; Ravindra Trimbak Chouthmal vs. State of Maharashtra
C (1996) 4 SCC 148: 1996 (2) SCR 1009; Ronny vs. State of
Maharashtra (1998) 3 SCC 625: 1998 (2) SCR 162;
Sandesh VS. State of Maharashtra (2013) 2 sec 479;
Sanaul/ah Khan vs. State of Bihar MANU/SC/0165/2013 -
referred to.
D
6. The two important organs of the State that is the
Judiciary and the Executive are treating the life of
convicts convicted of an offence punishable with death
with different standards. While the standard applied by
the Judiciary is that of the rarest of rare principle (however
E subjective or judge-centric it may be in its application) the
standard applied by the Executive in granting
commutation is not known. Therefore, it is imperative, in
this regard, that the Courts lay down a jurisprudential
basis for awarding the death penalty and when the
F
alternative is unquestionably foreclosed so that the
prevailing uncertainty is avoided. Death penalty and its
execution should not become a matter of uncertainty nor
should converting a death sentence into imprisonment
for life become a matter of chance. The Law Commission
G of India can resolve the issue by examining whether
death penalty is a deterrent punishment or is retributive
justice or serves an incapacitative goal. It could happen
(and might well have happened) that in a given case the
Sessions Judge, the High Court and the Supreme Court
H are unanimous in their view in awarding the death penalty
SHANKAR KISANRAO KHADE v. STATE OF
967
MAHARASHTRA
to a convict, any other option being unquestionably
A
foreclosed, but the Executive has taken a diametrically
opposite opinion and has commuted the death penalty.
This may also need to be considered by the Law
Commission of India. [Paras 71 and 72) [1052-E-H; 1053A-C]
B
Case Law Reference:
In the Judgment of K.S. Radhakrishnan, J.:
(2001) 2 sec 28
referred to
Para 9
2004 (4) Suppl. SCR 464
referred to
Para 9
(2005) 3 SCC 131
referred to
Para 9
2006 (8) Suppl. SCR 501
referred to
Para 9
2009 (12) SCR 1093
referred to
Para 10
2003 (6) Suppl. SCR 702
referred to
Para 1 O
2007 (2) SCR 555
referred to
Para 10
2011 (2) SCR 367
referred to
Para 10
2011 (5) SCR 518
(2010) 1 sec 58
referred to
Para 10
referred to
Para 10
c
D
E
2006 (10) Suppl. SCR 662
referred to
Para 10
F
2007 (7) SCR 616
referred to
Para 10
2005 (2) SCR 1132
2006 (3) SCR 348
2008 (10) SCR 89
(1980) 2 sec 684
1983 (3) SCR 413
relied on
relied on
Para 14
Para 14
relied on
Para 14
referred to
Para 20
referred to
Para 21
G
H
968
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A
(1979) 3 sec 366
referred to
Para 22(1)
B
c
1990 (3) Suppl. SCR 398
referred to
Para 22(2)
1994 (1) SCR 37
1994 (2) SCR 94
1996 (5) Suppl. SCR 507
1999 (4) Suppl. SCR 104
2008 (11) SCR 184
2008 (13) SCR 81
2012 (2) SCR 225
2011 (5) SCR 518
o
1994) 4 sec 108
2001 (3) SCR 409
referred to
Para 22(3)
referred to
Para 22(4)
referred to
Para 22(5)
referred to
Para 22(6)
referred to
Para 22(7)
referred to
Para 22(8)
referred to
Para 22(9)
referred to
Para 22(10)
referred to
Para 23(1)
referred to
Para 23(2)
E
F
G
2001 (4) Suppl. SCR 298
referred to
Para 23(3)
1999 (5) Suppl. SCR 215
2006 (8) Suppl. SCR 889
2011 (1) SCR 829
2004 (4) Suppl. SCR 464
referred to
Para 23(4)
referred to
Para 23(5)
referred to
Para 23(6)
referred to
Para 23(7)
2003 (2) Suppl. SCR 285
referred to
Para 23(8)
2009 (9) SCR 90
referred to
Para 26
relied on
Para 27
2012 (13) SCR 85
2009 (13) SCR 548
2009 (12) SCR 1093
referred to
Para 37
relied on
Para 37
In the Judgment of Madan B. Lokur, J.:
H
2008 (11) SCR 93
referred to
Para 2, 48
•
SHANKAR KISANRAO KHADE v. STATE OF
969
MAHARASHTRA
(1980) 2 sec 684
followed
Para 2, 5
A
2012 (13) SCR 85
referred to
Para 2
1999 (2) SCR 1
referred to
Para 10, 29
(1999) 4 sec 108
referred to
Para 11
B
(1999) 6 sec 60
referred to
Para 12
1999 (5) Suppl. SCR 215
referred to
Para 13
(2001) 2 sec 2s
referred to
Para 14
c
2001 (3) SCR 409
referred to
Para 15
2001 (4) Suppl. SCR 298
referred to
Para 16, 29
2001 (5) Suppl. SCR 12
referred to
Para 17
2003 (2) Suppl. SCR285
referred to
Para 18, 29
D
2004 (4) Suppl. SCR464
referred to
Para 19
2005 (3) sec 131
referred to
Para 20
(2005) 10 sec 322
referred to
Para 21, 29
E
2006 (8) Suppl. SCR 889
referred to
Para 22, 29
2007 (1) SCR916
referred to
Para 23
2010 (13) SCR 901
referred to
Para 24
F
2011 (1) SCR 829
referred to
Para 25, 29
2011 (14) SCR 921
referred to
Para 27, 29
2012 (1) SCR 1009
referred to
Para 28
1997 (6) Suppl. SCR 203
referred to
Para 29
G
1994 (1) SCR 37
referred to
Para 29
2009 (9) SCR 90
referred to
Para 29
1999 (3) SCR 426
referred to
Para 29
H
970
SUPREME COURT REPORTS
(2013] 6 S.C.R.
A
2011 (2) SCR 367
referred to
Para 29
2011 (5) SCR 518
referred to
Para 29
(2001) 2 sec 28
referred to
Para 29
B
2001 (3) SCR 409
referred to
Para 29
2004 (4) Suppl. SCR 464
referred to
Para 29
2005 (2) SCR 1132
referred to
Para 29
1997 (6) Suppl. SCR 203
referred to
Para 29
c
2009 (7) SCR 182
referred to
Para 29
2001 (5) Suppl. SCR 12
referred to
Para 29
1990 (3) Suppl. SCR 398
referred to
Para 30
D
1994 (1) SCR 37
referred to
Para 31
1994 (2) SCR 94
referred to
Para 32
1996 (5) Suppl. SCR 507
referred to
Para 33
E
1999 (2) SCR 1
referred to
Para 34
1999 (3) SCR 426
referred to
Para 35
1999 (4) Suppl. SCR 104
referred to
Para 36
F
2005 (2) SCR 1132
referred to
Para 37
2007 (2) SCR555
referred to
Para 38
2008 (11) SCR 184
referred to
Para 39
2008 (13) SCR81
referred to
Para 40
G
2009 (7) SCR 182
referred to
Para 41
2011 (2) SCR367
referred to
Para 42
2011 (5) SCR518
referred to
Para 43
H
2012 (2) SCR225
referred to
Para 44
SHANKAR KISANRAO KHADE v. STATE OF
971
MAHARASHTRA
2009 (9) SCR 90
referred to
Para 47
A
2006 (10) Suppl. SCR662
referred to
Para 48
2001 (2) SCR 864
referred to
Para 49
2001 (3) SCR 656
referred to
Para 49
B
2001 (5) Suppl. SCR 612
referred to
Para 49
2002 (1) SCR 586
referred to
Para 49
2005 (3) Suppl. SCR233
referred to
Para 51
2001 (5) Suppl. SCR 54
referred to
Para 52
c
2003 (2) Suppl. SCR884
referred to
Para 52
(201 O) 1 sec 58
referred to
Para 54
2012 (3) SCR630
referred to
Para 55
D
2012 (5) SCR696
referred to
Para 56
2012 (5) SCR 952
referred to
Para 57
2012 (3) SCR599
referred to
Para 58
E
2012 (7) SCR359
referred to
Para 59
(2013) 2 sec 113
referred to
Para 60
1996 (2) SCR 1009
referred to
Para 61
F
19~8 (2) SCR 162
referred to
Para 62
(2013) 2 sec 479
referred to
Para 63
MANU/SC/0165/2013
referred to
Para 64
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G
No. 362-363 'l!)f 2010.
From the l\.idgment & Order dated 27.06.2008 of the High
Court of Judica\U~ at Bombay Bench at Nagpur in Criminal
Appeal No. 512 o'f :2()0.7.
H
972
SUPREME COURT REPORTS
(2013) 6 S.C.R.
A
Ajay Kumar Talesara for the Appellant.
Aprajita Singh (for Asha Gopalan Nair) for the Respondent.
The Judgments of the Court was delivered by
B
K.S. RADHAKRISHNAN, J. 1. We are in these appeals
c
concerned with a gruesome murder of a minor girl with
intellectual disability (moderate) after subjecting her to series
of acts of rape by a middle ager, who has now been sentenced
to death by the High Court of Bombay.
2.