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Supreme Court Of India
Madan B. Lokur, K.S. Radhakrishnan, JJ.
Shankar Kisanrao Khade – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal Nos. 362-363 of 2010
Decided On : 25-04-2013
Constitution of India,1950 - Article 15 (3) – Indian Penal Code,1860 - Sections 363, 366-A, 376, 302, 201 read with Section 34 – Criminal Procedure Code,1973 - Section 354 – Investigation – punishable - appeals are as follows: The deceased, a minor girl, aged about 11 years was living with her grandmother (PW-13) at Gunwant Khandare in Gunwant Maharaj Sansthan at Lakhnwadi. On 20.7.2006, in the evening, both the accused came to Sansthanand 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 Oclock on the same day, both the accused and his wife induced her to come with them and the girl accompanied them. PW-13, the grandmother of the girl child was informed by some of the ladies residing in the neighbourhood that they saw the girl being taken away by the first accused towards the place called Puja - Dhuni. PW-13 met village Madhan and informed him that fact and also to her son, Ramesh (PW-12), but the girl could not be traced. Facts revealed that the girl was taken by the accused persons to a weekly market at Paratwada and stayed there during night and the first accused had committed –Held, Courts have been applying the rarest of rare principle, the Executive has taken into consideration some factors not known to the Courts for converting a death sentence to imprisonment for life. It is imperative, in this regard, since we are dealing with the lives of people (both the accused and the rape-murder victim) that the Courts lay down a jurisprudential basis for awarding the death penalty and when the alternative is unquestionably foreclosed so that the prevailing uncertainty is avoided. Death penalty and its execution should not become a matter of uncertainty nor should converting a death sentence into imprisonment for life become a matter of chance. Perhaps the Law Commission of India can resolve the issue by examining whether death penalty is a deterrent punishment or is retributive justice or serves an in capacitative goal - appear that two important organs of the State that is the Judiciary and the Executive are treating the life of convicts convicted of an offence punishable with death with different standards. While the standard applied by the Judiciary is that of the rarest of rare principle (however subjective or judge-centric it may be in its application) the standard applied by the Executive in granting commutation is not known. Therefore, it could happen (and might well have happened)that in a given case the Sessions Judge, the High Court and the Supreme Court are unanimous in their view in awarding the death penalty to a convict, any other option being unquestionably foreclosed, but the Executive has taken a diametrically opposite opinion and has commuted the death penalty. This may also need to be considered by the Law Commission of India – appeal disposed
Certainly. Based on the provided legal document, here are the key points summarized:
The case involves a gruesome murder and repeated acts of sexual assault on a minor girl with moderate intellectual disability, leading to her death by strangulation (!) (!) .
The evidence overwhelmingly establishes the guilt of the accused, including eyewitness testimony, medical findings, and the last seen theory, which links the accused directly to the crime (!) (!) (!) .
The medical evidence confirms that the victim was subjected to multiple acts of sexual assault and that her death resulted from asphyxia due to strangulation [p_33–p_41].
The case is considered to fall under the category of "rarest of rare cases" due to the heinous nature of the crime, the vulnerability of the victim, and the brutality involved, warranting the imposition of the death penalty (!) (!) .
The court emphasizes the importance of balancing aggravating and mitigating circumstances but clarifies that the primary consideration for awarding death is the "crime test," which must be fully satisfied, and the "criminal test," which should not favor the accused (!) (!) .
The standard for the death penalty is that it should be reserved for cases that are truly exceptional, where the brutality of the crime shocks societal conscience, and the case fits within the "rarest of rare" criteria (!) (!) (!) .
The judgment discusses that the death sentence can be converted to life imprisonment based on factors such as the age of the accused, lack of prior criminal record, potential for reformation, and absence of future threat to society [p_195–p_197].
The document highlights discrepancies in how the death penalty is applied by courts versus the executive, noting that the standard for awarding the death penalty by the judiciary is based on the "rarest of rare" principle, but the executive's decisions for commutation may be influenced by other unknown factors (!) (!) .
It underscores the importance of establishing clear jurisprudential principles for awarding and commuting death sentences to avoid arbitrary or judge-centric decisions, advocating for a consistent and transparent approach (!) (!) .
The final decision in this case is to uphold the conviction but convert the death penalty into a life sentence, with all sentences to run consecutively, emphasizing the severity of the crime but also the need for clarity and consistency in sentencing standards (!) (!) (!) .
Please let me know if you need further analysis or specific legal advice based on these points.
Judgment
K.S. Radhakrishnan, J.
1. We are in these appeals concerned with a gruesome murder of a minor girl with intellectual disability (moderate) after subjecting her to series of acts of rape by a middle ager, who has now been sentenced to death by the High Court of Bombay.
2. Appellant, Shankar Kisanrao Khade (Accused No.1) and his present wife Mala Shankar Khade (Accused No.2) were charge sheeted, for the offences punishable under Sections 363, 366-A, 376, 302, 201 read with Section 34IPC, for having, in furtherance of their common intention, kidnapped a minor girl and accused No.1 had committed rape on her several times and committed the murder by strangulation. The Additional Sessions Court in Sessions Case No. 165/2006 convicted the first accused and sentenced him to death under Section 302 IPC, subject to confirmation by the High Court and was also awarded imprisonment for life and to pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment (for short RI) for six months for offences under Section 376 IPC, further seven years RI and to pay a fine of Rs.500/- in default to suffer RI for three months under Section 366-A IPC and five years RI and to pay a fine of Rs.500/- in default to suffer RI for one month for offences punishable under Section 363 IPC, read with Section304 IPC.
The second accused - his wife, was convicted for the offences punishable under Section 363A read with Section 34 IPC and sentenced to suffer RI for five years and to pay a fine of Rs.500/- in default and to suffer RI for one month. The Accused No.2 had already suffered the punishment, hence did not file any appeal against the order of the sessions judge. The accused preferred Criminal Appeal No.512 of 2007 before the High Court and the Court heard the appeal along with Confirmation Case No.1of 2007. The High Court dismissed the appeal and the reference made by the Sessions Court was accepted and the death sentence was confirmed. Appellant has preferred these two appeals against those orders.
3. The facts giving rise to these appeals are as follows: The deceased, a minor girl, aged about 11 years was living with her grandmother (PW-13) at Gunwant Khandare in Gunwant Maharaj Sansthan at Lakhnwadi. On 20.7.2006, in the evening, both the accused came to Sansthanand stayed there. On seeing the minor girl the accused and his wife offered mango sweets. On the morning of 21.07.2006 also the accused offered her sweets and attracted her attention. At about 12.00 O'clock on the same day, both the accused and his wife induced her to come with them and the girl accompanied them. PW-13, the grandmother of the girl child was informed by some of the ladies residing in the neighbourhood that they saw the girl being taken away by the first accused towards the place called Puja - Dhuni. PW-13 met village Madhan and informed him that fact and also to her son, Ramesh (PW-12), but the girl could not be traced. Facts revealed that the girl was taken by the accused persons to a weekly 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 Mandirat Paratwada where they had stayed on 22.7.2006.
4. The accused persons then on 23.07.2006 took the girl to the house of one Ravindra Lavate (PW-8) whom they know earlier. PW8 and the son of the accused were friends. On the date of incident, they stayed there. The accused and the girl were sleeping in the verandah when PW-8 heard the cries of the minor girl and found the accused committing rape on her which was objected to by him and his wife. The accused then took the girl on a bicycle in the field bearing No.62 of Shantaram Jawarkar at about 9.00 pm. and after committing rape strangulated and murdered her. Vinod Jaswarkar(PW 14) and Sanjay (PW 9) found the dead body of the minor girl from the field. PW 9 approached the police station Aseg
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