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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 362-363 OF 2010

Shankar Kisanrao Khade       … Appellant  

Versus

State of Maharashtra … Respondent

J U D G M E N T

K.S. Radhakrishnan, J.

1. We are in these appeals concerned with a gruesome murder of a  

minor girl  with intellectual  disability (moderate) after  subjecting  

her to series of acts of rape by a middle ager, who has now been  

sentenced to death by the High Court of Bombay.

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2. Appellant,  Shankar  Kisanrao  Khade  (Accused  No.1)  and  his  

present wife Mala Shankar Khade (Accused No.2) were charge sheeted,  

for the offences punishable under Sections 363, 366-A, 376, 302, 201  

read with Section 34 IPC, for having, in furtherance of their common  

intention, kidnapped a minor girl and accused No.1 had committed rape  

on her several times and committed the murder by strangulation.  The  

Additional Sessions Court in Sessions Case No. 165/2006 convicted the  

first accused and sentenced him to death under Section 302 IPC, subject  

to confirmation by the High Court and was also awarded imprisonment  

for  life  and to  pay  a  fine  of  Rs.1,000/-  in  default  to  suffer  rigorous  

imprisonment (for short RI) for six months for offences under Section  

376 IPC, further seven years RI and to pay a fine of Rs.500/- in default  

to suffer RI for three months under Section 366-A IPC and five years RI  

and to pay a fine of Rs.500/- in default to suffer RI for one month for  

offences punishable under Section 363 IPC, read with Section 304 IPC.  

The  second  accused  -  his  wife,  was  convicted  for  the  offences  

punishable under Section 363A read with Section 34 IPC and sentenced  

to suffer RI for five years and to pay a fine of Rs.500/- in default and to

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suffer RI for one month.  The Accused No.2 had already suffered the  

punishment,  hence  did  not  file  any  appeal  against  the  order  of  the  

sessions judge.  The accused preferred Criminal Appeal No.512 of 2007  

before  the  High  Court  and  the  Court  heard  the  appeal  along  with  

Confirmation Case No.1 of 2007.  The High Court dismissed the appeal  

and the  reference  made by the  Sessions  Court  was  accepted and the  

death  sentence  was  confirmed.   Appellant  has  preferred  these  two  

appeals against those orders.  

3. The facts giving rise to these appeals are as follows:

The deceased, a minor girl, aged about 11 years was living with  

her grandmother (PW-13) at Gunwant Khandare in Gunwant Maharaj  

Sansthan at Lakhnwadi.  On 20.7.2006, in the evening, both the accused  

came to Sansthan and stayed there.  On seeing the minor girl the accused  

and his wife offered mango sweets.  On the morning of 21.07.2006 also  

the accused offered her sweets and attracted her attention.   At about  

12.00 O’clock on the same day, both the accused and his wife induced

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her to  come with them and the girl  accompanied them.   PW-13, the  

grandmother  of  the  girl  child  was  informed  by  some  of  the  ladies  

residing in the neighbourhood that they saw the girl being taken away by  

the first accused towards the place called Puja – Dhuni.    PW-13 met  

village Madhan and informed him that fact and also to her son, Ramesh  

(PW-12), but the girl could not be traced.  Facts revealed that the girl  

was taken by the accused persons to a weekly market at Paratwada and  

stayed there during night and the first accused had committed the act of  

rape on her and which was repeated at  Gayatri  Mandir at  Paratwada  

where they had stayed on 22.7.2006.   

4. The accused persons then on 23.07.2006 took the girl to the house  

of one Ravindra Lavate (PW-8) whom they know earlier.  PW8 and the  

son of the accused were friends.  On the date of incident, they stayed  

there.  The accused and the girl were sleeping in the verandah when PW-

8 heard the cries of the minor girl and found the accused committing  

rape on her which was objected to by him and his wife.  The accused  

then took the girl on a bicycle in the field bearing No.62 of Shantaram

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Jawarkar at about 9.00 pm. and after committing rape strangulated and  

murdered her.  Vinod Jaswarkar (PW 14) and Sanjay (PW 9) found the  

dead body of the minor girl from the field.  PW 9 approached the police  

station Asegaon and submitted Ext.48 report about the incident.   The  

Investigating  Officer  A.P.I.  Baviskar  (PW18)  went  to  the  place  of  

occurrence with the panchas and staff and noticed that the minor girl  

was  raped and murdered.   The spot  panchnama was prepared  in  the  

presence of the staff.  Articles found at the spot were seized and Ext.16  

inquest panchnama was also prepared and dead body was sent for the  

post mortem.  Dr. Mohan Kewade (PW 3) conducted the post-mortem  

and submitted the report Ext. 27 dated 25.07.2006.

5. Ramesh (PW12) informed Asegaon police station that his sister’s  

daughter was missing since 21.7.2006 and her dead body was identified  

by him.  PW3, who conducted the post mortem, came to the conclusion  

that the deceased was raped and murdered and he had also opined that  

the deceased was subjected to carnal intercourse and the death was due  

to  asphyxia  due  to  strangulation.   Devsingh  Baviskar,  API  (PW18)

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recorded the statement of several witnesses and arrested the accused and  

his wife on 2.8.2006 and the charge sheet was filed before the Judge,  

First Class, Chandur Bazar who later committed the case to the Court of  

Sessions.

6. The prosecution examined 18 witnesses and relied upon several  

documents including the experts evidence.  No witness was examined on  

the side of the defence.   The Sessions Court  found both the accused  

guilty  and  convicted  the  1st accused  and  sentenced  him  with  death  

penalty  which  was  confirmed.   We  are  in  these  appeals  primarily  

concerned  with  the  question  whether  the  death  sentence  awarded  to  

Shankar Kisanrao Khade is sustainable or not and whether the case falls  

under the category of rarest of rare cases warranting capital punishment.  

7. We heard Shri. A.K. Talesera, learned counsel appearing for the  

accused and Ms.Aprajita Singh, learned counsel appearing for the State  

at  length.   Shri  Talesera  submitted  that  the prosecution had failed  to  

prove  beyond  reasonable  doubt  that  it  was  the  accused  who  had

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committed  the  offence of  rape and murder  of  the deceased girl.   He  

submitted that PW 8 is not a natural witness and his evidence inspires no  

confidence.  Further, it was pointed out that there was delay in recording  

the  statement  of  PW8 by  the  Police  and  he  was  a  planted  witness.  

Learned counsel also pointed out that if PW 8 had witnessed the accused  

committing the crime, he would have informed the police at the earliest  

point of time.    Learned counsel also pointed out that even though the  

wife of PW 8 was also present in the house, she was not examined as a  

witness.  Further it was pointed out that, the test identification parade  

conducted  also  suffered  from  serious  infirmities.   Further  it  is  also  

pointed out that there were material inconsistencies, contradictions and  

omissions which had seriously affected the prosecution version and that  

the important links in the chain of circumstances that it was the accused  

who had committed the crime were missing.  Learned counsel submitted  

that in any view of the matter, the case would not fall under the rarest of  

rare category warranting capital punishment.

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8. Ms. Aparjita Singh, learned counsel appearing for the respondent-

State submitted that the prosecution has succeeded in proving the guilt  

of the accused beyond reasonable doubt.  Learned counsel submitted that  

PW 8 is a natural witness and he had no motive or any enmity with the  

accused so as to rope him in the crime.  On the other hand his son and  

accused’s  son  were  friends.   Learned  counsel  submitted  that  the  

evidence  adduced  in  this  case  proved  beyond  doubt  that  it  was  the  

accused who had kidnapped the minor girl and committed rape on her  

and later strangulated her to death.  Learned counsel also submitted that  

the  medical  evidence  clearly  establishes  that  over  and  above  the  

commission  of  the  offence  of  rape,  the  accused  had  committed  the  

offence of sodomy as well.  Further it was pointed out that the accused  

was aged about 52 years and had committed the ghastly crime of rape on  

the  girl  aged  between  11  to  12  years  having  moderate  intellectual  

disability.   Facts,  according  to  the  counsel,  clearly  indicate  that  the  

deceased was subjected to rape for more than one occasion and later  

strangulated  her  to  death.   Learned  counsel  placed  reliance  on  an  

affidavit  and  submitted  that  the  accused  had  previous  history  of

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committing various crimes.   Reference was made to Crime No.18 of  

2006,  charged  against  the  accused  for  committing  the  offence  under  

Sections 457 and 380 of IPC, which was registered at Asegaon police  

station.   Reference was also made to Criminal  Case No.264 of 2006  

pending  before  the  Judicial  Magistrate,  First  Class,  Chandurbazar.  

Further it was also pointed that the accused was arrayed as accused in  

Sessions Trial No.52 of 2007 for offences punishable under Section 302  

IPC for committing the murder of one lady.

9. Counsel appearing on either side placed reliance on a number of  

judgments  of  this  Court  to  bring  home  their  respective  contentions.  

Learned  counsel  appearing  for  the  accused  placed  reliance  on  the  

judgments of this Court in  Bachan Singh v.  State of Punjab (1980) 2  

SCC 684, Mohd. Chaman vs. State (NCT of Delhi)  (2001) 2 SCC 28,  

Surendra Pal  Shivbalakpal vs.  State  of  Gujarat (2005)  3 SCC 127,  

State  of  Maharashtra v.  Mansingh (2005) 3 SCC 131 and  State  of   

Rajasthan v. Kashi Ram (2006) 12 SCC 254.    

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10. Learned counsel appearing for the prosecution placed reliance on  

the judgments of this Court in   Gurmukh Singh v.  State of Haryana  

(2009) 15 SCC 635,   Mohd. Farooq Abdul Gafur and others. v. State   

of  Maharashtra   (2010)  14 SCC 641,   Sushil  Murmu  v.   State  of   

Jharkhand  (2004) 2 SC 338, Shivu and another v. Registrar General,   

High  Court  of  Karnataka  and  another  (2007)  4  SCC  713,    B.A.  

Umesh v. Registrar General, High Court of Karnataka (2011) 3 SCC  

85,  Mohd. Mannan Alias Abdul Mannan  v.  State of Bihar  (2011) 5  

SCC 317, Sebastian  v. State of Kerala (2010) 1 SCC 58, Aloke Nath  

Dutta and others  v.  State  of West  Bengal (2007) 12 SCC 230 and  

Swamy Shraddananda Alias  Murali  Manohar Mishra   v.   State  of   

Karnataka  (2007) 12 SCC 288.

11. I have critically and minutely gone through the evidence adduced  

by the prosecution as well as by the defence and examined whether the  

prosecution had succeeded in establishing the following circumstances  

to prove the charges levelled against the accused.

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(i) The accused went to Gunwant Maharaj Sansthan at Lakhanwadi  on 20.07.2006 and stayed there for one day along with accused  No.2 and on 21.7.2006 took the deceased to Dhuni.

(ii) On 22.7.2006 accused took deceased to Gayatri Mandir.

(iii) On 23.7.2006  the  accused  along  with  his  wife  and  deceased  went to the house of Ravindra Lavate (P.W.8) and stayed there.

(iv) On 23.7.2006 at night the accused committed rape on deceased.

(v) On  23.7.2006  during  the  night  time  the  accused  left  on  the  bicycle with the deceased and on 24.7.2006 he came back to the  house of PW8 to take his wife accused No.2.

(vi) False explanation given by accused to PW8 that he had dropped  the deceased at Lakhanwadi.

(vii) On 24.7.2006 dead body of the deceased was found in the field  of the father of Sanjay Jawarkar (P.W.9).   

(viii) Death  of  deceased  was  homicidal  and  that  deceased  was  subjected to sexual intercourse on more than one occasion.

(ix) Deceased was suffering from moderate intellectual disability.

(x) Identification of the accused by the witnesses.

(xi) Spot Punchanama and discovery of articles at the instance of the  accused.”

12. Facts in this  case indicate that  the deceased was aged about 11  

years on the date of the incident and was studying in the 4 th standard.  

On the age of the girl, there was some dispute.  Certificate Ext.94 issued  

by the Handicap Board stated the age of girl was 9 years on 6.12.2005.

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Post-mortem report Ext.27 mentions her age as 14 years and the opinion  

of the Medical Officer Ext. 29 shows that the approximate age of the  

deceased was about 14 years.  Ramesh PW 12, the maternal uncle stated  

that  her age was between 10-12 years.   PW 13 - grandmother of the  

deceased stated her age was about 10 years.  Taking into consideration  

all the versions of the witnesses and the documents produced, it is safe  

to conclude that her age was around 11 years.   

13. PW 10, PW 11, PW 12 and PW 13 stated how the girl was taken  

from the house of PW 13 and travelled to difference places, including  

the mandir.  PW 10 who was present at Gunwant Maharaj Sansthan had  

deposed that on 20.7.2006 at about 7.00 pm accused and his wife came  

to mandir and stayed in the hall of the mandir and one girl aged about 11  

years  was  also  with  them.   PW  11,  who  was  conducting  the  hotel  

business  opposite  to  the  mandir,  stated  that  on  20.7.2006  at  about  

7.00pm one man and woman had come to his hotel and on the next day  

at about 1.00 pm they came with a girl aged about 10-11 years and went  

to the  mandir and he identified both the accused persons in the court.

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P.W. 12, the uncle of the deceased stated that on 23.7.2006 his mother  

had come to his  house and informed that  the  deceased was  missing.  

Further, a watchman of the mandir PW 16 had also deposed that he saw  

a lady and a man with the girl aged about 12 years coming come to the  

mandir.  Another clinching evidence which conclusively proved that the  

girl was in the company of the accused  and his wife was the evidence of  

PW 8.    PW 8 deposed that his son and Santosh, son of the accused,  

were friends and he used to  go to  the house of  the accused.   PW 8  

deposed that, on 19.6.2006, the accused and his wife had stayed in his  

house stating that they had come to meet one of the relatives who had  

been admitted in a nearby hospital.   On 23.7.2006, again the accused  

along with his wife came to the house of PW 8 on a bicycle along with a  

minor girl who was wearing a white shirt and green skirt.  The accused  

and his wife requested that they be permitted to stay during night which  

PW 8 agreed.  The accused was sleeping in the verandah during night  

along with the girl.  PW 8 heard the girl weeping and became curious  

and when it was found that the accused was having sexual intercourse  

with the minor girl PW 8 asked the accused and his wife to leave the

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place.  Accused then took away the girl on his bicycle leaving his wife in  

the house of PW8.   

14. The above facts would clearly establish that the girl was last seen  

with the accused.  PW8 evidence discloses that the girl and the accused  

were seen together at a point of time in proximity with the time and date  

of the commission of the offence.  Last seen theory was successfully  

established  by  the  prosecution  beyond  any  reasonable  doubt.    This  

Court in State of U.P. v. Satish (2005) 3 SCC 114 has held that the last  

seen theory comes into play where the time gap between the point of  

time when the accused and the deceased were seen last alive and when  

the deceased is found is so small that possibility of any person other than  

the accused being the author of the crime is impossible.  This test, in my  

view, is fully satisfied in the instant case.  Reference may also be made  

to the judgment of this Court in Ramreddy Rajesh Khanna Reddy and  

Another v. State of Andhara Pradesh (2006) 10 SCC 172,  Kusuma  

Ankama Rao v.  State  of  Andhra Pradesh   (2008)  13 SCC 257 and  

Manivel and Others  v. State of Tamil Nadu.

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15. PW8 stated on the next day of the incident that the accused came  

alone to his house without the girl and left the house along with his wife.  

Evidence of PW 8 is very crucial and there is nothing to show that he  

had any enmity or grudge against the accused so as to implicate him.  

PW8 had no difficulty in identifying the accused since he knew them  

earlier.

16. Further,  apart  from the  evidence  of  witnesses  discussed  above,  

another crucial  evidence is  the medical  evidence.  PW 3, Dr. Mohan  

Kewade, who had conducted the post-mortem on the dead body of the  

deceased, noticed the following external injuries:

(i) Labia Majora and Minora swelled, tear of size two inch x ½  inch  over  interior  part  of  labia  Majora,  extending  to  vagina  present with clots of blood.

(ii) Anal tear of size 1 inch x ½ inch posteriorly present swelling of  anal opening and dilation of anal opening about 2 inch ween.

(iii) Bruises of size 3 cm x 2 cm over both side of neck present about  three in number on each side.

(iv) Bruise of size 2 cm x 2 cm over medial surface thigh and thigh  folds present.

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(v) Perianal  bruises  of  size  1  cm x  1cm about  three  in  number  present, probable age of injuries are about 2 to 3 days.

On internal examination he found following injuries:

i) Injuries over larynx Trachea and bronchi; Evidence of fracture  of upper two tracheal rings and larynx present.

ii) Organs of generation.

iii) Tear of cervix about 3 cm interiorly present with echoymetic.”

17. Medical evidence clearly indicates that the cause of the death was  

asphyxia due to strangulation and though there was clear evidence of  

carnal intercourse, the accused was not charged for that offence.  On a  

close  scrutiny  of  the  evidence,  it  can  safely  be  concluded  that  the  

deceased  girl  was  subjected  to  the  acts  of  rape  for  more  than  one  

occasion.   

18. I  have  extensively,  critically  and  minutely  gone  through  the  

evidence adduced in this case and I have no doubt in mind that it was the  

accused who had committed the crime.  The standard of proof required  

to convict a person on circumstantial evidence is well established by a  

series  of  judgments  of  this  Court.   The circumstances  relied upon in

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support  of  the  conviction  must  be  fully  established  and the  chain  of  

evidence furnished by those circumstances must be complete so as not to  

leave  any  reasonable  ground  for  a  conclusion  consistent  with  the  

innocence of the accused.   The Sessions Court as well as the High Court  

has correctly appreciated the evidence and documents adduced in this  

case and found that the guilt of the accused is proved beyond reasonable  

doubt with which we fully concur.   

19. The only question that now remains to be decided is whether this  

case  falls  in  the  category  of  rarest  of  rare  cases,  justifying  capital  

punishment.   This  Court  in  several  Judgments  has  awarded  capital  

punishment, where rape and murder have been committed on a minor  

girl,  after  striking  a  balance  between  the  aggravating  and  mitigating  

circumstances.  Several other factors like the young age of the accused,  

the possibility of reformation, lack of intention to murder consequent to  

rape etc. have also gone into the judicial mind.

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20. In  Bachan  Singh (supra),  while  determining  the  constitutional  

validity of the death penalty, this Court also examined the sentencing  

procedure embodied in sub-section (3) of Section 354 Cr.P.C. and held  

as follows:

“While considering the question of sentence to be imposed  for  the  offence  of  murder  under  Section 302 of  the  Penal  Code,  the  court  must  have  regard  to  every  relevant  circumstance relating to the crime as well as the criminal.  If  the court finds, but not otherwise, that the offence is of an  exceptionally depraved and heinous character and constitutes,  on account of its design and the manner of its execution, a  source of grave danger to the society at large, the court may  impose the death sentence.”

21. In Machhi Singh and others v. State of Punjab (1983) 3 SCC 470  

this Court held that case fell in the category of rarest of rare cases calling  

for capital punishment since the victim of murder was an innocent child  

who could not have or had not provided even an excuse, much less a  

provocation for murder or the murder was committed in an extremely  

brutal, grotesque, diabolical, revolting or dastardly manner which arose  

intense and extreme indignation of the community.  The motivation of  

the perpetrator, the vulnerability of the victim, the enormity of the crime,

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the execution thereof are factors which normally weigh with the court in  

awarding the death sentence terming it as the rarest of the rare cases.  

Reference to few judgments of this Court where death penalty has been  

awarded for rape and murder of minor girls and judgments, where it has  

been commuted may be apposite.    

22. DEATH  PENALTY AWARDED

1. Nathu Garam   v.   State of Uttar Pradesh        [(1979 ) 3 SCC  366]   

This Court in that case upheld the death sentence awarded by the  

trial Court, confirmed by the High Court, for causing death of a 14 year  

old girl by a person aged 28 years after luring her into the house for  

committing criminal assault.  Judgment was delivered prior to  Bachan  

Singh (supra),  therefore,  the  mitigating  circumstances  concerning the  

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

2. Jumman Khan   v.   State of Uttar Pradesh     [(1991) 1 SCC 752]   

This Court, in this case, was hearing a writ petition moved by a  

convict, not to extend the death sentence.  Writ Petition was dismissed

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after referring to the order passed by this Court in S.L.P. (Criminal) No.  

558  of  1986,  confirming  the  death  sentence,  noticing  the  degree  of  

criminality and the reprehensive and gruesome manner the crime was  

committed on a six year old child.  “Criminal test” is not  prima facie  

seen satisfied, but only the “crime test”.

3. Dhananjoy Chatterjee   v.    State of West Bengal     [(1994) 2 SCC    220]

This Court dealt with a case of rape and murder of a young girl of  

about 18 years.   The Court opined that a real and abiding concern for  

the dignity of human life is required to be kept in mind by courts while  

considering the confirmation of the sentence of death but a cold-blooded  

and pre-planned murder without any provocation, after committing rape  

on an innocent and defenceless young girl of 18 years exists in a rarest  

of  rare  cases  which  calls  for  no  punishment  other  than  capital  

punishment.

Paras 14 and 15 of the judgment would indicate that this Court was  

more on crime test, not on criminal test, which are extracted below:

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“14. In recent years,  the rising crime rate-particularly  violent  crime  against  women  has  made  the  criminal  sentencing by the courts a subject of concern. Today there are  admitted disparities. Some criminals get very harsh sentences  while  many  receive  grossly  different  sentence  for  an  essentially equivalent crime and a shockingly large number  even go unpunished, thereby encouraging the criminal and in  the ultimate making justice suffer by weakening the system's  credibility. Of course, it is not possible to lay down any cut  and dry formula relating to imposition of sentence but the  object of sentencing should be to see that the crime does not  go unpunished and the victim of crime as also the society has  the satisfaction that justice has been done to it. In imposing  sentences, in the absence of specific legislation, Judges must  consider  variety  of  factors  and  after  considering  all  those  factors and taking an over-all view of the situation, impose  sentence  which  they  consider  to  be  an  appropriate  one.  Aggravating  factors  cannot  be  ignored  and  similarly  mitigating  circumstances  have  also  to  be  taken  into  consideration.

15.  In  our  opinion,  the  measure  of  punishment  in  a  given case must depend upon the atrocity of the crime; the  conduct of the criminal and the defenceless and unprotected  state of the victim. Imposition of appropriate punishment is  the manner in which the courts respond to the society's cry  for justice against the criminals. Justice demands that courts  should  impose  punishment  fitting  to  the  crime  so  that  the  courts reflect public abhorrence of the crime. The courts must  not only keep in view the rights of the criminal but also the  rights of the victim of crime and the society at large while  considering imposition of appropriate punishment.”

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Prima facie,  it  is  seen that  criminal  test  has not been satisfied,  since  

there was not much discussion on the mitigating circumstances to satisfy  

the ‘criminal test’.

4. Laxman Naik   v.   State of Orissa     [(1994) 3 SCC 381]   

This Court again confirmed the death sentence on an accused for  

the offence of rape followed by murder of 7 year old girl by her own  

uncle.   The  Court  opined that  the  accused seems to  have  acted  in  a  

beastly  manner.   After  satisfying  his  lust,  he  thought  that  the  victim  

might expose him for the commission of offence on her to her family  

members and others, the accused with a view to screen the evidence of  

the crime, put an end to the life of that innocent girl.  The Court noticed  

how  diabolically  the  accused  had  conceived  his  plan  and  brutally  

executed it in such a calculated cold blooded and brutal murder of a very  

tender  age girl  after  committing rape on her which,  according to  the  

Court,  undoubtedly  falls  in  the  rarest  of  rare  case  attracting  no  

punishment other than capital punishment.  

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In this case aggravating circumstances, that is, “crime test” is seen  

fully satisfied, but on mitigating circumstances (criminal test), this Court  

held as follows:

“26. This brings us to the question of sentence to be  imposed upon the appellant for the offences for which he has  been found guilty by the two Courts below as well as by us  discussed above. In this connection it may be pointed out that  this  Court  in  the case of  Bachan Singh v. State  of  Punjab  (1980) 2 SCC 684: 1980 SCC (Cri) 580 while discussing the  sentencing policy, also laid down norms indicating the area  of imposition of death penalty taking into consideration the  aggravating  and  mitigating  circumstances  of  the  case  and  affirmed  the  view  that  the  sentencing  discretion  is  to  be  exercised  judicially  on  well  recognized  principles,  after  balancing all the aggravating and mitigating circumstances of  the crime guided by the Legislative Policy discernible from  the provision contained in Sections 253(2) and 354(3) of the  CrPC. In other words, the extreme penalty can be inflicted  only  in  gravest  cases  of  the  extreme  culpability  and  in  making  choice  of  the  sentence,  in  addition  to  the  circumstances of the offender also.  Having regard to these  principles  with  regard  to  the  imposition  of  the  extreme  penalty  it  may  be  noticed  that  there  are  absolutely  no  mitigating circumstances in the present case. On the contrary  the facts of the case disclose only aggravating circumstances  against the appellant which we have to some extent discussed  above and at the risk of repetition shall deal with that again  briefly.

27.  The  hard  facts  of  the  present  case  are  that  the  appellant  Laxman is the uncle of the deceased and almost

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occupied  the  status  and  position  that  of  guardian.  Consequently the victim who was aged about 7 years must  have reposed complete confidence in the appellant must have  believed in his bona fide also and it was on account of such a  faith  and  belief  that  she  acted  upon  the  command  of  the  appellant in accompanying him under the impression that she  was being taken to her village unmindful of the pre-planned  unholy  designs  of  the  appellant.  The  victim  was  totally  a  helpless child there being no one to protect her in the desert  where  she  was  taken  by  the  appellant  misusing  his  confidence to fulfill his just. It appears that the appellant had  pre-planned to commit the crime by resorting to diabolical  methods and it was with that object that he took the girl to a  lonely place to execute his dastardly act.”

Both the tests “crime test” and “criminal test”, it is seen, have been  

satisfied against the accused for awarding capital punishment.

5. Kamta Tiwari   v.   State of M.P.     [(1996) 6 SCC 250]   

This Court dealt with a case of rape followed by murder of a 7 year  

old girl.  Evidence disclosed that the accused was close to the family of  

the father of the deceased and the deceased used to call him “uncle”.  

This  Court  noticed  the  closeness  to  the  accused  and  the  accused  

encouraged her to go to the grocery shop where the girl was kidnapped  

by  him  and  was  subjected  to  rape  and  later  strangulated  to  death  

throwing the dead body in a well.  This Court described the murder as

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gruesome and barbaric  and pointed  out  that  a  person,  who was  in  a  

position of a trust, had committed the crime and the motivation of the  

perpetrator, the vulnerability of the victim, the enormity of the crime, the  

execution thereof persuaded this Court to hold that case as a rarest of  

rare  cases  where  death  sentence  was  warranted.   The  Court  was  

following the guidelines laid down in  Machhi Singh (supra),  held as  

follows:

“8.  Taking  an  overall  view  of  all  the  facts  and  circumstances of  the instant  case in the light  of the above  propositions we are of the firm opinion that the sentence of  death should be maintained.  In  vain we have searched for  mitigating  circumstances  -  but  found  aggravating  circumstances  aplenty.  The  evidence  on  record  clearly  establishes  that  the  appellant  was  close  to  the  family  of  Parmeshwar and the deceased and her siblings used to call  him  'Tiwari  uncle'.  Obviously  her  closeness  with  the  appellant encouraged her to go to his shop, which was near  the saloon where she had gone for a haircut with her father  and brother, and ask for some biscuits. The appellant readily  responded to the request by taking her to the nearby grocery  shop  of  Budhsen  and  handing  over  a  packet  of  biscuits  apparently as a prelude to his sinister design which unfolded  in her kidnapping, brutal rape and gruesome murder - as the  numerous injuries on her person testify; and the finale was  the dumping of her dead body in a well. When an innocent  hapless  girl  of  7  years  was  subjected  to  such  barbaric  treatment by a person who was in a position of her trust his  culpability assumes the proportion of extreme depravity and

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arouses a sense of revulsion in the mind of the common man.  In fine, the motivation of the perpetrator, the vulnerability of  the victim, the enormity of the crime, the execution thereof  persuade us to hold that this is a 'rarest of rare' cases where  the sentence of death is eminently desirable not only to deter  others  from committing  such  atrocious  crimes  but  also  to  give emphatic expression to society's a abhorrence of such  crimes.”

       Court was giving thrust on crime test rather than criminal test  

against the accused.

6. Molai and another    v.   State of M.P.      [(1999) 9 SCC 581]   

A three-Judge Bench of this  Court  justified  death sentence in a  

case  where  a  16  year  old  girl,  preparing  for  her  Tenth  Standard  

Examination was raped and strangulated to death.  The Court noticed the  

gruesome manner in which rape was committed and the way in which  

she was strangulated to death and the dead body was immersed in the  

septic tank.  On sentence, the Court held as follows:

36. We have very carefully considered the contentions  raised on behalf of the parties. We have also gone through  various decisions of this Court relied upon by the parties in  the courts below as well as before us and in our opinion the  present case squarely falls in the category of one of the rarest  of  rare  cases,  and  if  this  be  so,  the  courts  below  have  committed no error in awarding capital punishment to each of

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the accused. It cannot be overlooked that Naveen, a 16 year  old girl, was preparing for her 10th examination at her house  and suddenly both the accused took advantage of she being  alone in  the house and committed  a most  shameful  act  of  rape. The accused did not stop there but they strangulated her  by using her  under-garment  and thereafter  took her  to  the  septic tank along with the cycle and caused injuries with a  sharp edged weapon. The accused did not even stop there but  they exhibited the criminality in their conduct by throwing  the dead body into  the septic  tank totally  disregarding the  respect  for  a  human  dead  body.  Learned  Counsel  for  the  accused  (appellants)  could  not  point  any  mitigating  circumstances  from  the  record  of  the  case  to  justify  the  reduction of sentence of either of the accused. In a case of  this nature, in our considered view, the capital punishment to  both the accused is the only proper punishment and we see no  reason  to  take  a  different  view than  the  one  taken by the  courts below.”

The three-Judge Bench, it is seen, has applied both the tests Crime test  

as well as the Criminal test and found that the case falls in the category  

of rarest of rare cases.

7. Bantu   v.   State of Uttar Pradesh     [(2008) 11 SCC 113]   

This Court confirmed death sentence in a case where a minor girl  

of 5 years was raped and murdered.  This Court, following the principles  

laid down in  Bachan Singh,  pointed out that when the victim of the  

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

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or a person vis-à-vis whom the murderer is in a dominating position, or a  

public figure generally loved and respected by the community, it is a  

vital  factor justifying award of  capital  punishment.   In  this  judgment  

also, this Court stressed on drawing of a balance sheet of mitigating and  

aggravating  circumstances,  following  the  judgment  in  Devender  Pal   

Singh v. Government of NCT of Delhi (2002) 5 SCC 234.  Court was  

applying the “balancing test”, to award capital sentence.

8. Shivaji  @ Dadya Shankar Alhat   v.    The State  of  Maharashtra    [(2008) 15 SCC 269]

This was a case where the accused, a married man having three  

children, was known to the family of the deceased.   The Court noticed  

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

after ravishing her.  The Court awarded capital punishment.  The Court,  

in this case, took the view that mitigating and aggravating circumstances  

have to be balanced.  Here also the test applied was the “balancing test”  

to award capital punishment.

9. Mohd.  Mannan @ Abdul Mannan v.  State  of Bihar   [(2011) 5    SCC 317]

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This was a case where a minor girl aged 7 years was kidnapped,  

raped and murdered.  Court noticed how the accused had won the trust  

of  that  innocent  girl  and  the  gruesome  manner  in  which  she  was  

subjected to rape and then strangulated her to death.  The accused was  

aged 42-43 years.  The Court held that he would be a menace to society  

and would continue to be so and could not be reformed.  The Court  

awarded death sentence.  The Court,  in this case, held that a balance  

sheet  is  to  be  prepared  while  considering  the  imposition  of  death  

sentence.    Here  also  the  test  applied  was  “balancing test”  to  award  

capital punishment.  

10. Rajendra Pralhadrao Wasnik v. State of Maharashtra  , (2012) 4    SCC 37

This was a case of rape and murder of a 3 years old child by a  

married man of 31 years.  Court noticed the brutal manner in which the  

crime was committed and the pain and agony undergone by the minor  

girl.    The Court  confirmed the death sentence awarded.   The Court  

elaborately  discussed  when  the  aggravating  and  mitigating

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circumstances to be taken note of before awarding sentence and what are  

the principles to be followed, while awarding death sentence.  The Court  

then held as follows:

“37. When  the  Court  draws  a  balance-sheet  of  the  aggravating and mitigating circumstances, for the purposes of  determining whether the extreme sentence of death should be  imposed upon the accused or not, the scale of justice only  tilts against the accused as there is nothing but aggravating  circumstances evident from the record of the Court. In fact,  one  has  to  really  struggle  to  find  out  if  there  were  any  mitigating  circumstances  favouring  the  accused.  Another  aspect of the matter is that the minor child was helpless in the  cruel  hands  of  the  accused.  The  accused  was  holding  the  child  in  a  relationship  of  'trust-belief'  and  'confidence',  in  which capacity he took the child from the house of PW2. In  other  words,  the  accused,  by  his  conduct,  has  belied  the  human relationship of trust and worthiness.”

Court in this case also applied the “balancing test” to award capital  

punishment.

23. CASES IN WHICH DEATH PENALTY COMMUTED

1. Kumudi Lal   v.   State of U.P.     [(1994) 4 SCC 108]   

It  was  a  case  where  a  14  year  girl  was  raped  and  killed  by  

strangulation.  The Court accepted the brutality of the crime, however

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commuted death penalty to life imprisonment.  The Court noticed that  

the evidence did not indicate the girl was absolutely unwilling but rather  

showed that  she initially  permitted the accused to take some liberties  

with her but later expressed her unwillingness.  Treating the same as a  

mitigating  factor,  death  sentence  was  commuted  to  that  of  life  

imprisonment.   ‘Criminal  test’  was  applied  and  was  found  not  fully  

satisfied since some mitigating circumstances were found to be in favour  

of the accused so as to avoid death sentence.

2. Raju   v.   State of Haryana     [(2001) 9 SCC 50]   

This Court commuted death sentence to life imprisonment in a case  

where a girl of 11 years was raped and murdered.  Court noticed that the  

accused had no intention to murder her, but on the spur of the moment,  

without any premeditation, he gave two brick blows which caused the  

death.   Further,  it  was  also  found  that  the  accused  had  no  previous  

criminal record or would be a threat to the society.  ‘Criminal test’ was  

applied  and  found  not  fully  satisfied  some  mitigating  circumstances  

were found to be in favour of the accused so as to avoid death sentence.

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3. Bantu alias Naresh Giri   v.   State of M.P.     [(2001) 9 SCC 615]   

This Court commuted death sentence to that of life imprisonment  

in a case where a girl of 6 years was raped and murdered by a boy of less  

than 22 years.  Though, this Court found that the act was heinous and  

required to be condemned, but it could not be said to be one of the rarest  

of rare category.  The accused did not require to be eliminated from the  

society.  ‘Criminal  test’  was  applied  and  found  some  circumstances  

favouring the accused so as to avoid death sentence.

4. State of Maharashtra   v.   Suresh      [(2000) 1 SCC 471]    

This  Court  in  that  case  commuted  the  death  sentence  to  life  

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

Though this Court felt that the case was perilously near the region of  

rarest of the rare cases, but refrained from imposing extreme penalty.  

“Criminal test” was applied and narrowly escaped death sentence.

5. Amrit Singh   v.   State of Punjab     [AIR 2007 SC 132]  

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This Court commuted death sentence to that of life imprisonment  

in a case, where a 7-8 years old girl  was raped and murdered by the  

accused aged 31 years.   The Court  noticed the manner  in  which the  

deceased  was  raped,  it  was  brutal,  but  held  it  could  have  been  a  

momentary lapse on the part of the accused, seeing a lonely girl  at a  

secluded place and there was no pre-meditation for commission of the  

crime.   “Criminal  test”  it  is  seen,  has  been applied  in  favour  of  the  

accused to avoid death sentence.

6. Rameshbhai  Chandubhai  Rathod   v.    The  State  of  Gujarat    [(2011) 2 SCC 764]

This Court commuted death sentence to life imprisonment of the  

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

that the accused at the time of the commission of crime was 27 years and  

possibility of reformation could not be ruled out.  “Criminal test” was  

applied  considering  the  age  of  the  accused  and  possibility  of  

reformation saved the accused from death penalty.

7. Surendra Pal Shivbalak   v.   State of Gujarat      [(2005) 3 SCC 127]  

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This Court commuted death sentence to that of life imprisonment  

in  a  case  where  the  accused aged 36 years  had committed  rape  and  

murder of a minor girl.  This Court noticed at the time of occurrence, the  

accused  had  no  previous  criminal  record  and  held  would  not  be  a  

menace to the society in future.  “Criminal test” was applied and absence  

of  previous  record  was  considered  as  a  circumstance  to  avoid  death  

sentence.   

8. Amit   v.   State of Maharashtra      [(2003) 8 SCC 93]   

This Court commuted death sentence to life imprisonment in a case  

where the accused aged 28 years had raped and murdered a girl of 11-12  

years.   This Court  noticed that  the accused had no previous criminal  

track record and also there was no evidence that he would be a danger to  

the society in future.  “Criminal test” was applied, absence of previous  

track record and danger to the society were considered to avoid death  

sentence.   

24. The list of cases mentioned above, wherein this Court had awarded  

death  sentence  and  cases  where  this  Court  had  commuted  death

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sentence, is not exhaustive but only illustrative.  This bench in Sangeeta  

&  Ors  v.  State  of  Haryana (2013)  2  SCC  452  noticed  that  the  

circumstances of the criminal referred to in Bachan Singh appeared to  

have taken a bit of back seat in the sentencing process and held  despite  

Bachan Singh, the ‘particular crime’ continues to play a more important  

role than the ‘crime and criminal’.  In conclusion, we have said,  inter   

alia, as follows:

“1. The  application  of  aggravating  and  mitigating  circumstances needs a fresh look.  This Court has not  endorsed that approach in Bachan Singh.  In any event,  there is little or no uniformity in the application of this  approach.

2. Aggravating  circumstances  relate  to  the  crime  while  mitigating  circumstances  relate  to  the  criminal.   A  balance  sheet  cannot  be drawn up for  comparing the  two.   The  considerations  for  both  are  distinct  and  unrelated.   The use of the mantra of aggravating and  mitigating circumstances needs a review.

3. In  the  sentencing  process,  both  the  crime  and  the  criminal are equally important.  We have, unfortunately  not  taken  the  sentencing  process  as  seriously  as  it  should be with the result that in capital offences, it has  become judge-centric sentencing rather than principled  sentencing.

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4. The  Constitution  Bench  of  this  Court  has  not  encouraged  standardization  and  categorization  of  crimes  and  even  otherwise  it  is  not  possible  to  standardize and categorize all crimes.”

25. In  Bachan Singh and Machhi Singh cases, this Court laid down  

various principles for awarding sentence:

“Aggravating circumstances – (Crime test)

1. The offences relating to the commission of heinous crimes  like  murder,  rape,  armed  dacoity,  kidnapping  etc.  by  the  accused with a prior record of conviction for capital felony or  offences  committed  by  the  person  having  a  substantial  history of serious assaults and criminal convictions.

2.  The  offence  was  committed  while  the  offender  was  engaged in the commission of another serious offence.

3. The offence was committed with the intention to create a  fear psychosis in the public at large and was committed in a  public place by a weapon or device which clearly could be  hazardous to the life of more than one person.

4. The offence of murder was committed for ransom or like  offences to receive money or monetary benefits.

5. Hired killings.

6.  The offence was committed  outrageously  for  want  only  while involving inhumane treatment and torture to the victim.

7. The offence was committed by a person while in lawful  custody.

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8. The murder or the offence was committed,  to prevent a  person lawfully carrying out his duty like arrest or custody in  a  place  of  lawful  confinement  of  himself  or  another.  For  instance,  murder  is  of  a  person  who  had  acted  in  lawful  discharge  of  his  duty  under  Section 43 Code  of  Criminal  Procedure. 9. When the crime is enormous in proportion like making an  attempt  of  murder  of  the  entire  family  or  members  of  a  particular community.

10. When the victim is innocent, helpless or a person relies  upon the trust of relationship and social norms, like a child,  helpless  woman,  a  daughter  or  a  niece  staying  with  a  father/uncle and is inflicted with the crime by such a trusted  person.

11. When murder is committed for a motive which evidences  total depravity and meanness.

12.  When  there  is  a  cold  blooded  murder  without  provocation.

13.  The  crime  is  committed  so  brutally  that  it  pricks  or  shocks  not  only  the  judicial  conscience  but  even  the  conscience of the society.

Mitigating Circumstances:  (Criminal test)

1.  The manner  and circumstances  in  and under  which the  offence  was  committed,  for  example,  extreme  mental  or  emotional  disturbance  or  extreme  provocation  in  contradistinction to all these situations in normal course.

2. The age of the accused is a relevant consideration but not a  determinative factor by itself.

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3. The chances of the accused of not indulging in commission  of the crime again and the probability of the accused being  reformed and rehabilitated.

4. The condition of the accused shows that he was mentally  defective and the defect impaired his capacity to appreciate  the circumstances of his criminal conduct.

5. The circumstances which, in normal course of life, would  render such a behavior possible and could have the effect of  giving rise to mental imbalance in that given situation like  persistent harassment or, in fact, leading to such a peak of  human behavior that,  in the facts and circumstances of the  case,  the accused believed that  he was morally justified in  committing the offence.

6. Where the Court upon proper appreciation of evidence is  of  the  view  that  the  crime  was  not  committed  in  a  pre- ordained manner and that the death resulted in the course of  commission of another crime and that there was a possibility  of it being construed as consequences to the commission of  the primary crime.

7. Where it is absolutely unsafe to rely upon the testimony of  a sole eye-witness though prosecution has brought home the  guilt of the accused.”

26. In  Santosh  Kumar  Satishbhushan   Bariyar vs. State  of   

Maharashtra (2009) 6 SCC 498, this Court held the nature, motive,  and  

impact  of  crime,   culpability,  quality  of  evidence,  socio  economic

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circumstances,  impossibility of rehabilitation and some of the factors,  

the Court may take into consideration while dealing with such cases.

27. In Sangeeta’s case this Bench has held that there is no question of  

balancing the above mentioned circumstances to determine the question  

whether the case falls into the rarest of rare cases category because the  

consideration for both are distinct  and unrelated.   In other words the  

“balancing  test”  is  not  the  correct  test  in  deciding  whether  capital  

punishment be awarded or not.

28. Aggravating Circumstances as pointed out above,  of course,  are  

not exhaustive so also the Mitigating Circumstances.   In my considered  

view that the tests that we have to apply, while awarding death sentence,  

are “crime test”,  “criminal test” and the  R-R Test and not “balancing  

test”.  To award death sentence, the “crime test” has to be fully satisfied,  

that is 100% and “criminal test” 0%, that is no Mitigating Circumstance  

favouring  the  accused.  If  there  is  any  circumstance  favouring  the

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accused,  like  lack  of  intention  to  commit  the  crime,  possibility  of  

reformation, young age of the accused, not a menace to the society  no  

previous track record etc., the “criminal test” may favour the accused to  

avoid the capital punishment.  Even, if both the tests are satisfied that is  

the  aggravating  circumstances  to  the  fullest  extent  and no mitigating  

circumstances favouring the accused, still we have to apply finally the  

Rarest  of  Rare  Case  test  (R-R  Test).   R-R  Test  depends  upon  the  

perception of the society that is “society centric” and not “Judge centric”  

that is, whether the society will approve the awarding of death sentence  

to certain types of crimes or not.  While applying that test, the Court has  

to  look  into  variety  of  factors  like  society’s  abhorrence,  extreme  

indignation and antipathy to certain types of crimes like sexual assault  

and  murder  of  minor  girls  intellectually  challenged,  suffering  from  

physical  disability,  old and infirm women with those disabilities  etc..  

Examples are only illustrative and not exhaustive.  Courts award death  

sentence since situation demands so, due to constitutional compulsion,  

reflected by the will of the people and not the will of the judges.

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29. We have to apply the above tests in the present case and decide  

whether the courts below were justified in awarding the death sentence.  

Enormity of the Crime and execution thereof (Crime Test)

30. Victim was aged 11 years,  on the date of the incident,  a school  

going  child  totally  innocent,  defenceless  and  having  moderate  

intellectual disability.   Ex. P-4 was a certificate issued by the President  

of the Handicap Board General Hospital, Amravati which disclosed that  

the girl  was physically handicapped and was having moderate mental  

retardation.  Evidence of PW 10, PW 12 and PW13 also corroborates the  

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

aggravating  circumstance  which  goes  against  the  accused.  

Vulnerability  of the victim with moderate  intellectual  disability  is  an  

aggravating circumstance.  The accused was a fatherly figure aged 52  

years.

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31. Dr. Kewade – PW3, who conducted the post mortem, had deposed  

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

executed.   Rape  was  committed  on  more  than  one  occasion  and  the  

manner  in  which  rape  as  well  as  murder  was  executed  had  been  

elaborately discussed in the oral evidence as well as in report which we  

do not want to reiterate.  The action of accused, in my view, not only  

was inhuman but barbaric.  Ruthless crime of repeated actions of rape  

followed by murder of a young minor girl  who was having moderate  

intellectual disability,  shocks not only the judicial conscience, but the  

conscience of the society.

32. In  my view,  in  this  case  the crime test  has  been satisfied  fully  

against the accused.

Criminal Test

33.   Let us now examine whether “Criminal Test’ has been satisfied.  

The accused was aged 52 years at the time of incident, a fatherly figure  

for the minor child.    The accused is an able bodied person has seen the  

world and is the father of two children.  The accused repeatedly raped

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the girl for few days, ultimately strangulated her to death.  Intellectually  

challenged minor girls will not be safe in our society if the accused is  

not given adequate punishment.  Considering the age of the accused, a  

middle ager of 52 years, reformation or rehabilitation is practically ruled  

out.    In the facts and circumstances of the case, in my view, criminal  

test has been fully satisfied against the accused and I do not find any  

mitigating  factor  favouring  the  accused.   The  only  mitigating  

circumstance stated was that the accused is having two sons aged 26 and  

27  years  and  are  dependent  on  him,  which  in  my  view,  is  not  a  

mitigating circumstance and the “criminal test” is fully satisfied against  

the  accused.   Both  the  crime  test  and  criminal  test  are,  therefore,  

independently satisfied against the accused.   

34. Let us now apply the R-R Test.  I have critically and minutely gone  

through  the  entire  evidence  and  I  am  of  the  view  that  any  other  

punishment  other  than  life  imprisonment  would  be  completely  

inadequate and would not meet the ends of justice.

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35. Remember,  the  victim  was  a  minor  girl  aged  11  years,  

intellectually challenged and elders like the accused have an obligation  

and duty to take care of such children, but the accused has used her as a  

tool to satisfy his lust.  Society abhors such crimes which shocks the  

conscience  of  the  society  and  always  attracts  intense  and  extreme  

indignation of the community.  R-R Test is fully satisfied against the  

accused, so also the Crime Test and the Criminal Test”.  Even though all  

the above mentioned tests have been satisfied in this case, I am of the  

view that the extreme sentence of Death penalty is not warranted since  

one  of  the  factors  which  influenced  the  High  Court  to  award  death  

sentence was the previous track record of the accused.

Previous Criminal Record of the Accused

36. The  Investigating  Officer,  during  the  course  of  hearing  of  the  

criminal appeal by the High Court,  filed an affidavit  dated 11.4.2008  

stating that the accused was also figured as an accused in Crime No.  

165/92 registered at Police Station Borgaon Manju, District Akola for  

the  offence  under  Section  302  IPC on  the  allegation  that  he  caused

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murder of his wife Chanda by assaulting her with stick on 4.10.1993 and  

that Sessions Trial No. 52/07 was pending before the Sessions Court,  

Akola.  Further, it was also stated that another Crime No. 80/06 was also  

registered against the accused at Chandur Bazar Police Station for an  

offence under Sections 457 and 380 IPC.  The High Court was of the  

view that the accused had not disclosed those facts before the Court and  

held as follows:

“….However, fact remains that the accused has not disputed  the pendency of these proceedings against him.  Moreover,  they  cannot  be  said  to  be  irrelevant  for  the  purpose  of  deciding  the  appropriate  sentence  which  deserves  to  be  imposed on the appellant.  We, therefore, deem it appropriate  to  consider  the pendency of these cases as a circumstance  against the accused…..”

37. I find it difficult to endorse this view of the High Court.  In my  

view,  the  mere  pendency  of  criminal  cases  as  such  cannot  be  an  

aggravating  factor  to  be  taken  note  of  while  granting  appropriate  

sentence. In Gurmukh Singh v. State of Haryana (2009) 15 SCC 635,  

this Court opined that criminal background and adverse history of the  

accused is a relevant factor.  But, in my view, mere pendency of cases,

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as such, is not a relevant factor.  This Court in  Mohd. Farooq Abdul  

Gafur v. State of Maharashtra (2010) 14 SCC 641 dealt with a similar  

contention  and  Justice  S.  B.  Sinha,  while  supplementing  the  leading  

judgment, stated as follows:

“178.   In our opinion the trial court had wrongly rejected the  fact that even though the accused had a criminal history, but  there had been no criminal conviction against the said three  accused.  It had rejected the said argument on the ground that  a conviction might not be possible in each and every criminal  trial……..”

38. Therefore, the mere pendency of few criminal cases as such is not  

an aggravating circumstance to be taken note of while awarding death  

sentence unless the accused is found guilty and convicted in those cases.  

High Court was,  therefore,  in error in holding that  those are relevant  

factors to be considered in awarding appropriate sentence.    

39. But what disturbed me the most is that the police after booking the  

accused for offence under Section 377 IPC failed to charge sheet him, in  

spite  of  the  fact  the  medical  evidence  had  clearly  established  the  

commission  of  carnal  intercourse  on  a  minor  girl  with  moderate

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intellectual  disability.   Dr.  Kewade  -  PW3,  who  conducted  the  post  

mortem, had clearly spelt out the facts of sodomy in his report as well as  

in his deposition.   Prosecuting agency has also failed in his duty to point  

out the same to the court that a case had been made out under Section  

377 IPC.  

Non-reporting the offence of sexual assault   

40. Let me now refer to another disturbing trend in our society that is  

non-reporting of sexual assault on minor children, which has happened  

in  this  case  as  well.   Ravindra  Lavate  (PW8),  in  his  deposition,  has  

stated as follows:

“I  heard  that  the  girl  was  weeping.   I,  therefore,  come in  Verandah and observed that Accused No.1 was lying on the  body of the said girl.  I observed it in the electric light.  I also  observed  that  Accused  No.1  was  committing  sexual  intercourse with the girl.  I and my wife asked Accused No.1  as to what he was doing.  I asked Accused No.1 Shankar to  take out the said girl.  Accused No.1 thereafter took away the  said girl on cycle.”

41. PW8  has  admitted  in  his  cross-examination  that  he  had  not  

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

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was no clear cut legislative provision casting an obligation on him to  

report to the J.J. Board or to the S.J.P.U. dealing with sexual offences  

towards children after having witnessed the incident.  Is there not a duty  

cast on every citizen of this country if they witness or come to know any  

act of sexual assault or abuse on a minor child to report the same to the  

police or to the J.J.  Board or can they keep mum so as to screen the  

culprit from legal punishment?  

42. Article 15 (3) of the Constitution of India confers upon the State  

powers to  make special  provision  for  children.   Article  39  inter  alia  

provides  that  the  State  shall,  in  particular,  direct  its  policy  towards  

securing  that  the  tender  age  of  children  are  not  abused  and  their  

childhood  and  youth  are  protected  against  exploitation  and  they  are  

given  facilities  to  develop  in  a  healthy  manner  and  in  conditions  of  

freedom and dignity.   

43. The  United  Nations  Convention  on  the  Rights  of  Children,  

rectified by India on 11th December 1992, requires the State Parties to  

undertake all appropriate national, bilateral and multilateral measures to

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prevent the inducement or coercion of child to engage in any unlawful  

sexual activity, the exploitative use of children in prostitution or other  

unlawful sexual practices etc.    Articles 3(2) and 34 of the Convention  

have placed a specific duty on the State to protect the child from all  

forms  of  sexual  exploitation  and  abuse.     National  Crime  Records  

Bureau (NCRB) 2011 report specifically deals with the statistics of rape  

victims which is as follows:

Rape Victims     

44. There were 24,270 victims of Rape out of 24,206 reported Rape  

cases in the country.  10.6% (2,582) of the total victims of Rape were  

girls under 14 years of age, while 19.0% (4,646 victims) were teenaged  

girls  (14-18 years).   54.7% (13,264 victims) were women in the age-

group 18-30 years.  However, 15.0% (3,637 victims) were in the age  

group of 30-50 years while 0.6% (141 victims) was over 50 years of age.  

 45. Offenders  were  known to  the  victims  in  as  many as  in  22,549  

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

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(267 out of 22,549 cases) of these cases, neighbours were involved in  

34.7% cases (7,835 out of 22,549 cases) and relatives were involved in  

6.9% (1,560 out of 22,549 cases) cases.   

46. A total of 7,112 cases of child rape were reported in the country  

during 2011 as compared to 5,484 in 2010 accounting for an increase of  

29.7% during the year 2011.  Madhya Pradesh has reported the highest  

number  of  cases  (1,262)  followed  by  Uttar  Pradesh  (1088)  and  

Maharashtra (818).  These three States altogether accounted for 44.5%  

of the total child rape cases reported in the country.   

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

Sl. No. Crime Head YEAR % Variation in  2011 over  

2010 (1) (2) (3) (4) (5) (6) 3. Rape 5,368 5,484 7112 30

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47.  The Department of Women and Child Development conducted a  

study and prepared a Draft of the Offences against Children Bill, 2005  

which  was  further  discussed  with  the  National  Commission  for  

Protection of Child Rights (NCPCR).   

48. Parliament later passed the Act titled “The Protection of Children  

from Sexual Offences Act, 2012. (Act 32 of 2012) which received the  

assent  of  the  President  on  19th June,  2012.   The  Act  provides  for  

reporting of sexual offences and the punishment for failure to report or  

record punishment for filing false complaint  and/or false information.  

The Act also provides for a Justice Delivery System for child victims  

and few other provisions to safeguard the interest of children.

49. Chapter  V of  the  Act  deals  with  the  Procedure  of  reporting  of  

cases.  Sec. 19(1) deals with the manner in which the case has to be  

reported to the Special Juvenile Police Unit or local police.  Section 20  

deals with the obligation of media, studio and photographic facilities to  

report cases and the same reads as follows:

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“20. Any personnel of the media or hotel or lodge or hospital  or club or studio or photographic facilities, by whatever name  called, irrespective of the number of persons employed therein,  shall, on coming across any material or object which is sexually  exploitative  of  the  child  (including  pornographic,  sexually- related or making obscene representation of a child or children)  through the use of any medium, shall provide such information  to the Special Juvenile Police Unit, or to the local police, as the  case may be.

Section 21 prescribes punishment for failure to report or record a  

case, which reads as follows:

  “21.  (1) Any person, who fails to report the commission of an  offence under sub-section (1) of section 19 or section 20 or who  fails to record such offence under sub-section (2) of section 19  shall  be  punished  with  imprisonment  of  either  description  which may extend to six months or with fine or with both.

(2) Any person, being in-charge of any company or an  institution (by whatever name called) who fails to report the  commission of an offence under sub-section (1) of section 19  in respect of a subordinate under his control, shall be punished  with imprisonment for a term which may extend to one year  and with fine.”

50. I may also point out that, in large numbers of cases, children are  

abused by persons known to them or who have influence over them.

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Criminal Courts in this country are galore with cases where children are  

abused by adults addicted to alcohol, drugs, depression, marital discord  

etc.   Preventive aspects have seldom been given importance or taken  

care  of.    Penal  laws  focus  more  on  situations  after  commission  of  

offences like violence, abuse, exploitation of the children.   Witnesses of  

many such heinous crimes often keep mum taking shelter on factors like  

social  stigma,  community  pressure,  and  difficulties  of  navigating  the  

criminal justice system, total dependency on perpetrator emotionally and  

economically  and  so  on.   Some  adult  members  of  family  including  

parents choose not to report such crimes to the police on the plea that it  

was for the sake of protecting the child from social stigma and it would  

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

out  that  in such situations some of the close family  members having  

known such incidents would not extend medical help to the child to keep  

the  same confidential  and so  on,  least  bothered about  the  emotional,  

psychological and physical harm done to the child.  Sexual abuse can be  

in any form like sexually molesting or assaulting a child or allowing a  

child to be sexually molested or assaulted or encouraging, inducing or

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forcing the child to be used for the sexual gratification of another person,  

using  a  child  or  deliberately  exposing  a  child  to  sexual  activities  or  

pornography  or  procuring  or  allowing  a  child  to  be  procured  for  

commercial exploitation and so on.  

51. In my view, whenever we deal with an issue of child abuse, we  

must apply the best interest child standard, since best interest of the child  

is  paramount  and not  the  interest  of  perpetrator  of  the  crime.    Our  

approach must be child centric.  Complaints received from any quarter,  

of course, have to be kept confidential without casting any stigma on the  

child  and  the  family  members.   But,  if  the  tormentor  is  the  family  

member  himself,  he  shall  not  go  scot  free.    Proper  and  sufficient  

safeguards also have to be given to the persons who come forward to  

report such incidents to the police or to the Juvenile Justice Board.   

52. The conduct of the police for not registering a case under Section  

377 IPC against the accused, the agony undergone by a child of 11 years  

with moderate intellectual  disability,  non-reporting of offence of rape  

committed on her, after having witnessed the incident either to the local

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police  or  to  the  J.J.  Board  compel  us  to  give  certain  directions  for  

compliance in future which, in my view, are necessary to protect our  

children from such sexual abuses.  This Court as  parens patriae  has a  

duty  to  do  so  because  Court  has  guardianship  over  minor  children,  

especially with regard to the children having intellectual disability, since  

they are suffering from legal disability.   Prompt reporting of the crime  

in  this  case  could  have  perhaps,  saved  the  life  of  a  minor  child  of  

moderate intellectual disability.

53. President of India on 3rd February, 2013 promulgated an ordinance  

titled  “The  Criminal  Law  (Amendment)  Ordinance,  2013,  further  to  

amend the Code of Criminal  Procedure Code,  1973, Indian Evidence  

Act, 1872 and the Indian Penal Code, 1860.  By the ordinance Sections  

375,  376,  376-A,  376-B,  376-C  and  376-D  of  the  Code  have  been  

substituted by new Sections.  The word “rape” has been replaced by the  

word  “sexual  assault”.   Section  375  has  also  clarified  that  lack  of  

physical  resistance  is  immaterial  for  constituting an offence.   A new  

Section 376-A has been added which reads as follows:

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376A.  Whoever,  commits  an  offence  punishable  under sub-section (I) or sub-section (2) of Section 376  and in the course of such commission inflicts an injury  which  causes  the  death  of  the  person  or  causes  the  person to  be  in  a  persistent  vegetative  state,  shall  be  punished with rigorous imprisonment for a term which  shall  not  be  less  than twenty  years=,  but  which  may  extend to imprisonment for life, which shall mean the  remainder of that person’s natural life, or with death”.  

Therefore  a  person,  who  commits  an  offence  punishable  under  sub-

section (1) and sub-section (2) of Section 376 and causes death shall be  

punishable with rigorous imprisonment for a term which shall not be less  

than twelve years but which my extend to imprisonment for life, which  

shall be mean the remainder of that periods natural life or with death.

54. Considering the entire facts and circumstances of the case, I am  

inclined to convert death sentence awarded to the accused to rigorous  

imprisonment  for  life  and  that  all  the  sentences  awarded  will  run  

consecutively.

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55. I  my  opinion,  the  case  in  hand  calls  for  issuing  the  following  

directions to various stake-holders for due compliance:

(1) The  persons  in-charge  of  the  schools/educational  institutions,  

special  homes,  children  homes,  shelter  homes,  hostels,  remand  

homes, jails etc. or wherever children are housed, if they come across  

instances  of  sexual  abuse  or  assault  on  a  minor  child  which  they  

believe  to  have  committed  or  come  to  know  that  they  are  being  

sexually  molested  or  assaulted  are  directed  to  report  those  facts  

keeping upmost secrecy to the nearest S.J.P.U. or local police,  and  

they,  depending  upon  the  gravity  of  the  complaint  and  its  

genuineness, take appropriate follow up action casting no stigma to  

the child or to the family members.

(2) Media personals, persons in charge of Hotel, lodge, hospital, clubs,  

studios, photograph facilities have to duly comply with the provision  

of Section 20 of the Act 32 of 2012 and provide information to the  

S.J.P.U., or local police.  Media has to strictly comply with Section  

23 of the Act as well.

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(3) Children  with  intellectual  disability  are  more  vulnerable  to  

physical,  sexual  and emotional  abuse.   Institutions  which house  

them or persons in  care and protection,  come across any act  of  

sexual  abuse,  have  a  duty  to  bring  to  the  notice  of  the  J.J.  

Board/S.J.P.U. or local police and they in turn be in touch with the  

competent authority and take appropriate action.

(4) Further,  it is made clear that if the perpetrator of the crime is a  

family  member  himself,  then  utmost  care  be  taken  and  further  

action be taken in consultation with the mother  or other female  

members of the family of the child, bearing in mind the fact that  

best interest of the child is of paramount consideration.

(5) Hospitals,  whether  Government  or  privately  owned  or  medical  

institutions  where children are  being treated come to know that  

children  admitted  are  subjected  to  sexual  abuse,  the  same  will  

immediately be reported to the nearest J.J. Board/SJPU and the JJ  

Board, in consultation with SJPU, should take appropriate steps in  

accordance with the law safeguarding the interest of child.

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(6) The non-reporting of the crime by anybody, after having come to  

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

any sexual assault, is a serious crime and by not reporting they are  

screening  offenders  from  legal  punishment  and  hence  be  held  

liable under the ordinary criminal law and prompt action be taken  

against them, in accordance with law.  

(7) Complaints, if any, received by NCPCR, S.C.P.C.R. Child Welfare  

Committee  (CWC)  and  Child  Helpline,  NGO’s  or  Women’s  

Organizations  etc.,  they  may  take  further  follow  up  action  in  

consultation with the nearest J.J. Board, S.J.P.U. or local police in  

accordance with law.

(8) The Central Government and the State Governments are directed  

to constitute SJPUs in all the Districts, if not already constituted  

and they have to take prompt and effective action in consultation  

with J. J. Board to take care of child and protect the child and also  

take appropriate steps against the perpetrator of the crime.      

(9) The Central Government and every State Government should take  

all measures as provided under Section 43 of the Act 32/2012 to

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give  wide publicity  of  the provisions  of  the Act  through media  

including television, radio and print media, at regular intervals, to  

make  the  general  public,  children  as  well  as  their  parents  and  

guardians, aware of the provisions of the Act.  

56. Criminal appeals stand dismissed and the death sentence awarded  

to the accused is converted to that of rigorous imprisonment for life and  

that all the sentences awarded will run consecutively.   

                …......................................J        (K.S. Radhakrishnan)

New Delhi April 25, 2013

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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 362-363  OF 2010

Shankar Kisanrao Khade …..Appellant  

Versus  

State of Maharashtra              …..Respondent  

J U D G M E N T  

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

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expressed  by  this  Court  on  awarding  death  penalty  or  

converting it to imprisonment for life in cases concerning rape  

and murder.

Element of subjectivity:

2. In Swamy Shraddananda  (2)  v.  State  of  Karnataka,   

(2008) 13 SCC 767  this Court noted in paragraph 44 of the  

Report  that  the  expression  “the  rarest  of  rare  cases”  in  

Bachan  Singh  v.  State  of  Punjab,  (1980)  2  SCC  684  

indicates a relative category based on a comparison with other  

cases.  In paragraph 45 of the Report, this Court considered the  

expression  as  requiring  a  comparison  between  (i)  cases  of  

murder with other cases of murder of the same or of a similar  

kind  or  even  of  a  graver  nature  and  (ii)  the  punishment  

awarded  to  the  convicts  in  those  cases.   This  Court  also  

expressed the view that there is hardly any field available for  

comparison. In other words, this Court highlighted the difficulty  

in the practical application of the “rarest of rare” principle since  

there  is  a  lack  of  empirical  data  for  making  the  two-fold  

comparison.  

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3. The question therefore is: how does one determine that a case  

is  rare as compared to another case?  If  such a comparison  

were possible, then on a relative basis could a particular case  

be described as rarer than an identified rare case?  It is this  

inability to make a comparative evaluation and clarity on the  

issue due to a lack of information and any detailed study that  

the  application  of  the  rarest  of  rare  principle  becomes  

extremely  delicate  thereby  making  the  awarding  of  a  death  

sentence subjective as mentioned in  Swamy Shraddananda  

or  judge-centric  as  mentioned  in  Sangeet  v.  State  of  

Haryana, 2013 (2) SCC 452.

Corridor of uncertainty:

4. My  learned  Brother  Justice  Radhakrishnan  has  put  in  great  

efforts in analyzing a species of cases (of which I am sure there  

would  be  many  more)  in  which  the  victim  was  raped  and  

murdered. These cases fall in two categories, namely, those in  

which the death penalty has been confirmed by this Court and  

those in which it has been converted to life imprisonment. In

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my view, there is a third category consisting of cases (which  

cannot be overlooked in  the overall  context  of  a  sentencing  

policy) in which this Court has, while awarding a sentence of  

imprisonment  for  life,  arrived  at  what  is  described as  a  via  

media and in which a fixed term of imprisonment exceeding 14  

or  20  years  (with  or  without  remissions)  has  been  awarded  

instead of a death penalty, or in which the sentence awarded  

has been consecutive and not concurrent.

5. For the present purposes, I will first refer to those somewhat  

recent  cases  (say  over  the  last  about  15  years)  where  the  

death penalty was converted to imprisonment for life and cull  

out  the  main  reasons  for  commuting  it.  However,  it  is  

necessary to enter two caveats: Firstly, the Constitution Bench  

in  Bachan  Singh has  concluded  in  paragraph  164  of  the  

Report  that  normally  the  punishment  for  murder  is  life  

imprisonment  and  a  death  penalty  may  be  imposed  only  if  

there are special reasons for doing so. In other words, special  

reasons  are  required  to  be  recorded  not  for  awarding  life  

imprisonment but for  awarding death sentence.  This is  what  

the Constitution Bench held:

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“The  normal  rule  is  that  the  offence  of  murder  shall  be  punished with the sentence of life imprisonment. The court  can depart from that rule and impose the sentence of death  only if there are special reasons for doing so. Such reasons  must  be  recorded  in  writing  before  imposing  the  death  sentence.”

6. It  was further  held in  paragraph 209 of  the Report  that  the  

normal  rule is  of  awarding life  sentence but death sentence  

may  be  awarded  only  if  the  alternative  of  life  sentence  is  

unquestionably foreclosed. The Constitution Bench held:

“It is, therefore, imperative to voice the concern that courts,  aided by the broad illustrative guide-lines indicated by us,  will  discharge  the  onerous  function  with  evermore  scrupulous  care  and  humane  concern,  directed  along  the  highroad of legislative policy outlined in Section 354(3) viz.  that for  persons convicted of murder,  life imprisonment is  the rule and death sentence an exception. A real and abiding  concern for the dignity of human life postulates resistance to  taking a life through law's instrumentality. That ought not to  be done save in the rarest of rare cases when the alternative  option is unquestionably foreclosed.”

7. Strictly speaking, therefore, this Court is not required to record  

reasons  for  commuting  the  death  sentence  to  one  of  life  

imprisonment – it is only required to record reasons for either  

confirming the death sentence or awarding it.

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8. Secondly, though a sentence awarded by this Court relates to a  

specific case, nevertheless an exercise needs to be undertaken  

to  identify  some  jurisprudential  principle  for  awarding  the  

death penalty. It is in this context that the present exercise has  

been undertaken. It is possible that the cases discussed are not  

exhaustive  of  the  “rape  and  murder”  category  and perhaps  

some may have been left out of the discussion but the general  

principles or guidelines would be discernible from this exercise  

of finding a way through the existing corridor of uncertainty in  

sentencing.   

Cases  where  the  death  penalty  has  been  converted  to  imprisonment for life:  

9. State of Tamil Nadu v. Suresh, (1998) 2 SCC 372 was a  

case  of  the rape and murder  of  a  pregnant housewife.  This  

Court took the view that though the crime was dastardly and  

the victim was a young pregnant housewife,  it would not be  

appropriate to award the death penalty since the High Court  

had not upheld the conviction and also due to the passage of  

time. This is what was observed:

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“The above discussion takes us to the final conclusion that  the  High  Court  has  seriously  erred  in  upsetting  the  conviction entered by the Sessions Court as against A-2 and  A-3. The erroneous approach has resulted in miscarriage of  justice by allowing the two perpetrators of a dastardly crime  committed  against  a  helpless  young  pregnant  housewife  who was sleeping in her own apartment with her little baby  sleeping by her side and during the absence of her husband.  We strongly feel that the error committed by the High Court  must be undone by restoring the conviction passed against  A-2 and A-3, though we are not inclined, at this distance of  time, to restore the sentence of death passed by the trial  court on those two accused.”

10. Nirmal Singh v. State of Haryana, (1999) 3 SCC  

670 was  a  case  in  which  Dharampal  had raped P  and was  

convicted for the offence. Pending an appeal the convict was  

granted bail. While on bail, Dharampal along with Nirmal Singh  

murdered  five  members  of  P’s  family.  Death  penalty  was  

awarded to Dharampal and Nirmal Singh by the Trial Court and  

confirmed by the High Court.  This Court converted the death  

sentence in the case of Nirmal Singh to imprisonment for life  

since he had no criminal antecedents; there was no possibility  

of  his  committing  criminal  acts  of  violence;  he  would  not

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continue being a threat to society; and he was not the main  

perpetrator of the crime. It was held:

“There  is  nothing  on  record  to  suggest  that  Nirmal  was  having  any  past  criminal  antecedents  or  that  there  is  a  possibility that the accused would commit criminal acts of  violence  and  would  constitute  a  continuing  threat  to  the  society.  The only aggravating circumstance is that he had  come with his brother and had given 3 blows on deceased  Krishna  only  after  Dharampal  chased  Krishna  and  gave  kulhari blows hitting on the neck while Krishna was running  and  on  sustaining  that  blow,  she  fell  down  and  then  Dharampal  gave  two  to  three  blows  to  Krishna  and  only  thereafter Nirmal gave burchi blows on the said Krishna. It is  no doubt true that the presence of Nirmal at the scene of the  occurrence  with  a  burchi  in  his  hand  had  emboldened  Dharampal to take the drastic action of causing murder of 5  persons of Tale's family as a result of which Tale's family was  totally wiped off. But because of the fact that Nirmal has not  assaulted any other person and assaulted Krishna only after  Dharampal had given her 3 or 4 blows, the case of Nirmal  cannot be said to be the rarest of rare case attracting the  extreme penalty of death.  While,  therefore, we uphold his  conviction under Sections 302/34, we commute his sentence  of death into imprisonment for life.”

11. Kumudi Lal  v. State of Uttar Pradesh, (1999) 4   

SCC 108 was a case of rape and murder of a 14 year old. This  

Court was of the view that the applicability of the rarest of rare

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principle  did  not  arise  in  this  case  apparently  because  the  

crime had no ‘exceptional’ feature. This Court noted as follows:

“The circumstances indicate that probably she (the victim)  was  not  unwilling  initially  to  allow  the  appellant  to  have  some liberty with her. The appellant not being able to resist  his urge for sex went ahead in spite of her unwillingness for  a  sexual  intercourse  who  offered  some  resistance  and  started raising shouts at that stage. In order to prevent her  from raising shouts the appellant tied the salwar around her  neck  which  resulted  in  strangulation  and  her  death.  We,  therefore, do not consider this to be a fit case in which the  extreme penalty of death deserves to be imposed upon the  appellant.”  

12. Akhtar v. State of Uttar Pradesh, (1999) 6 SCC 60  

was a case of rape and murder of a young girl. The sentence of  

death awarded to  the accused was converted to  one of  life  

imprisonment  since  he took  advantage of  finding the  victim  

alone in a lonely place and her murder was not premeditated. It  

was observed:  

“But in the case in hand on examining the evidence of the  three witnesses it appears to us that the accused-appellant  has  committed  the  murder  of  the  deceased  girl  not  intentionally and with any premeditation. On the other hand  the accused-appellant found a young girl alone in a lonely  place, picked her up for committing rape; while committing

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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.”

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14. In Mohd. Chaman v. State (NCT of Delhi), (2001) 2   

SCC 28 the accused, a 30 year old man, had raped and killed a  

one and a half year old child. Despite concluding that the crime  

was serious and heinous and that the accused had a dirty and  

perverted mind, this Court converted the death penalty to one  

of  imprisonment for  life  since he was not  such a dangerous  

person who would endanger the community and because it was  

not a case where there was no alternative but to impose the  

death  penalty.  It  was  also  held  that  a  humanist  approach  

should be taken in the matter of awarding punishment. It was  

held:

“Coming  to  the  case  in  hand,  the  crime  committed  is  undoubtedly  serious  and  heinous  and  the  conduct  of  the  appellant is reprehensible. It reveals a dirty and perverted  mind of a human being who has no control over his carnal  desires.  Then  the  question  is:  Whether  the  case  can  be  classified  as  of  a  “rarest  of  rare”  category  justifying  the  severest  punishment  of  death.  Treating  the  case  on  the  touchstone  of  the  guidelines  laid  down  in  Bachan  Singh,  Machhi Singh [(1983) 3 SCC 470] and other decisions and  balancing  the  aggravating  and  mitigating  circumstances  emerging  from  the  evidence  on  record,  we  are  not  persuaded  to  accept  that  the  case  can  be  appropriately  called  one  of  the  “rarest  of  rare  cases”  deserving  death  penalty. We find it difficult to hold that the appellant is such  a dangerous person that to spare his life will endanger the

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community. We are also not satisfied that the circumstances  of  the  crime are  such  that  there  is  no  alternative  but  to  impose  death  sentence  even  after  according  maximum  weightage to the mitigating circumstances in favour of the  offender.  It  is our considered view that the case is one in  which a humanist approach should be taken in the matter of  awarding punishment.”

15.  Raju v. State of Haryana, (2001) 9 SCC 50 was a  

case  in  which this  Court  took  into  account  three factors  for  

converting the death sentence of the accused to imprisonment  

for life for the rape and murder of an eleven year old child.  

Firstly, the murder was committed without any premeditation  

(however,  there  is  no  mention  about  the  rape  being  not  

premeditated); secondly, the absence of any criminal record of  

the accused; and thirdly, there being nothing to show that the  

accused could be a grave danger to society. This is what was  

said:  

“[T]he evidence on record discloses that the accused was  not having an intention to commit the murder of the girl who  accompanied him. On the spur of the moment without there  being  any  premeditation,  he  gave  two  brick-blows  which  caused her death. There is nothing on record to indicate that  the appellant was having any criminal record nor can he be  said to be a grave danger to the society at large. In these

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circumstances, it would be difficult to hold that the case of  the  appellant  would  be  rarest  of  rare  case  justifying  imposition of death penalty.”

16. In Bantu v.  State of Madhya Pradesh, (2001) 9  

SCC 615 this Court converted the death sentence awarded to  

the accused to imprisonment for life.  The accused was a 22  

year old man who had raped and murdered a 6 year old child.  

It was acknowledged that the rape and murder was heinous,  

but  this  Court  took  into  account  that  the  accused  had  no  

previous  criminal  record  and  that  he  would  not  be  a  grave  

danger to society at large. On this basis, the death penalty was  

converted to life imprisonment. This is what was said:

“In the present case, there is nothing on record to indicate  that the appellant was having any criminal record nor can it  be said that he will be a grave danger to the society at large.  It  is  true  that  his  act  is  heinous  and  requires  to  be  condemned but at the same time it cannot be said that it is  the rarest of the rare case where the accused requires to be  eliminated from the society.  Hence,  there is  no justifiable  reason to impose the death sentence.”

17. In State of Maharashtra v. Bharat Fakira Dhiwar,   

(2002) 1 SCC 622 this Court converted the death sentence to

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imprisonment for life since the accused was acquitted by the  

High Court and imprisonment for life was not unquestionably  

foreclosed. This is what this Court held:  

“Regarding  sentence  we  would  have  concurred  with  the  Sessions Court's view that the extreme penalty of death can  be chosen for such a crime. However, as the accused was  once acquitted by the High Court we refrain from imposing  that extreme penalty in spite of the fact that this case is  perilously near the region of “rarest of the rare cases”, as  envisaged  by  the  Constitution  Bench  in  Bachan  Singh v.  State  of  Punjab.  However,  the  lesser  option  is  not  unquestionably foreclosed and so we alter the sentence, in  regard  to  the  offence  under  Section  302  IPC,  to  imprisonment for life.”

18. In Amit v. State of Maharashtra, (2003) 8 SCC 93  

the death penalty awarded to the accused for  the rape and  

murder  of  an  eleven  year  old  child  was  converted  to  

imprisonment for life for the reason that he was a young man  

of 20 years when the incident occurred; he had no prior record  

of any heinous crime; and there was no evidence that he would  

be a danger to society. This Court held:  

“The next question is of the sentence. Considering that the  appellant is a young man, at the time of the incident his age  was about 20 years; he was a student; there is no record of

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any previous heinous crime and also there is no evidence  that he will be a danger to the society, if the death penalty is  not  awarded.  Though  the  offence  committed  by  the  appellant  deserves  severe  condemnation  and  is  a  most  heinous crime, but on cumulative facts and circumstances of  the case, we do not think that the case falls in the category  of rarest of the rare cases. We hope that the appellant will  learn a lesson and have an opportunity to ponder over what  he did during the period he undergoes the life sentence.”

19. Surendra  Pal  Shivbalakpal  v.  State  of  Gujarat,   

(2005)  3 SCC 127 was  a  case in  which  the death penalty  

awarded to  the  accused who had  raped  a  minor  child,  was  

converted to life imprisonment considering the fact that he was  

36 years old and there was no evidence of the accused being  

involved in any other case and there was no material to show  

that he would be a menace to society. It was held:  

“The next question that arises for consideration is whether  this is a “rarest of rare case”; we do not think that this is a  “rarest  of  rare  case”  in  which  death  penalty  should  be  imposed on the appellant. The appellant was aged 36 years  at the time of the occurrence and there is no evidence that  the appellant had been involved in any other criminal case  previously and the appellant was a migrant labourer from  U.P.  and  was  living  in  impecunious  circumstances  and  it  cannot  be  said  that  he  would  be  a  menace to  society  in  future and no materials are placed before us to draw such a

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conclusion.  We  do  not  think  that  the  death  penalty  was  warranted in this case.”

20. In State  of  Maharashtra  v.  Mansingh,  (2005)  3  

SCC 131 the accused was acquitted by the High Court of the  

offence of rape and murder of the victim. In a brief order, this  

Court noted this fact as well as the fact that this was a case of  

circumstantial evidence and, therefore, the death sentence was  

converted to imprisonment for life to meet the ends of justice.  

It was observed:  

“Now the question which arises is as to whether the present  case would come within the ambit of rarest of the rare case.  In the facts and circumstances of the case, we are of the  view  that  the  trial  court  was  not  justified  in  imposing  extreme penalty of death against the respondent and ends  of  justice  would  be  met  in  case  the  sentence  of  life  imprisonment is awarded against the respondent.”

21. Rahul v. State of Maharashtra, (2005) 10 SCC 322  

was a case of the rape and murder of a four and a half year old  

child by the accused. The death sentence awarded to him was  

converted by this Court to one of life imprisonment since the  

accused  was  a  young  man  of  24  years  when  the  incident

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occurred;  apparently  his  behavior  in  custody  was  not  

uncomplimentary;  he  had  no  previous  criminal  record;  and  

would not be a menace to society. It was held:

“We have considered all the relevant aspects of the case. It  is  true that  the appellant  committed a serious crime in a  very ghastly manner but the fact that he was aged 24 years  at  the  time  of  the  crime,  has  to  be  taken  note  of.  Even  though, the appellant had been in custody since 27-11-1999  we are not furnished with any report regarding the appellant  either by any probationary officer or by the jail authorities.  The appellant had no previous criminal record, and nothing  was brought to the notice of the Court. It cannot be said that  he would be a menace to the society in future. Considering  the age of the appellant and other circumstances, we do not  think that the penalty of death be imposed on him.”

22. In Amrit Singh v. State of Punjab, (2006) 12 SCC  

79 a 6 or 7 year old child was raped and murdered by a 31  

year old. This Court took the view that though the rape may be  

brutal  and  the  offence  heinous,  “it  could  have  been  a  

momentary  lapse”  on  the  part  of  the  accused and  was  not  

premeditated. The victim died “as a consequence of and not  

because of any overt act” by the accused. Consequently, the  

case did not fall in the category of rarest of rare cases. It was  

held:

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“The opinion of the learned trial Judge as also the High Court  that  the  appellant  being  aged  about  31  years  and  not  suffering from any disease, was in a dominating position and  might  have  got  her  mouth  gagged  cannot  be  held  to  be  irrelevant. Some marks of violence not only on the neck but  also on her mouth were found. Submission of Mr Agarwal,  however, that the appellant might not have an intention to  kill  the deceased,  thus,  may have some force.  The death  occurred  not  as  a  result  of  strangulation  but  because  of  excessive bleeding. The deceased had bleed half a litre of  blood. Dr. Reshamchand Singh, PW 1 did not state that injury  on the neck could have contributed to her death. The death  occurred, therefore, as a consequence of and not because of  any specific overt act on the part of the appellant.

“Imposition of death penalty in a case of this nature, in our  opinion, was, thus, improper. Even otherwise, it cannot be  said to be a rarest of rare cases. The manner in which the  deceased was raped may be brutal but it could have been a  momentary  lapse  on  the  part  of  the  appellant,  seeing  a  lonely girl at a secluded place. He had no premeditation for  commission of the offence. The offence may look heinous,  but under no circumstances, can it be said to be a rarest of  rare cases.”

23.Bishnu Prasad Sinha v. State of Assam, (2007) 11 SCC  

467 was a case concerning the rape and murder  of  a  child  

aged about 7 or 8 years by two accused persons. The death  

penalty awarded to them was converted to life imprisonment  

since the conviction was based on circumstantial evidence and

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appellant No.1 had expressed remorse in his statement under  

Section 313 of the Code of Criminal Procedure and admitted his  

guilt. It appears that the second accused either did not admit  

his guilt or express any remorse. This Court held:  

“The  question  which  remains  is  as  to  what  punishment  should be awarded. Ordinarily, this Court, having regard to  the nature of the offence, would not have differed with the  opinion of the learned Sessions Judge as also the High Court  in  this  behalf,  but  it  must  be  borne  in  mind  that  the  appellants  are  convicted  only  on  the  basis  of  the  circumstantial  evidence.  There  are  authorities  for  the  proposition that if the evidence is proved by circumstantial  evidence, ordinarily,  death penalty would not be awarded.  Moreover,  Appellant  No.1  showed  his  remorse  and  repentance even in his statement under Section 313 of the  Code of Criminal Procedure. He accepted his guilt.”

24. Santosh Kumar Singh v. State, (2010) 9 SCC 747  

was a case in which the sentence of death was converted to life  

imprisonment  by  this  Court  since  the  accused  had  been  

acquitted by the Trial Court and the High Court had reversed  

the  acquittal  on  circumstantial  evidence.  The  accused  was  

young man of 24 years when the incident occurred; he had got  

married in the meanwhile and had a daughter; his father had  

died  a  year  after  his  conviction;  his  family  faced  a  dismal

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future;  and  there  was  nothing  to  suggest  that  he  was  not  

capable of reform. It was held:   

“Furthermore,  we  see  that  the  mitigating  circumstances  need to be taken into account,  more particularly  that  the  High Court has reversed a judgment of acquittal based on  circumstantial evidence. The appellant was a young man of  24 at the time of the incident and, after acquittal, had got  married and was the father of a girl child. Undoubtedly also,  the appellant would have had time for  reflection over the  events  of  the  last  fifteen  years,  and  to  ponder  over  the  predicament that he now faces, the reality that his father  died a year after his conviction and the prospect of a dismal  future for his young family. On the contrary, there is nothing  to suggest that he would not be capable of reform.

“There are extremely aggravating circumstances as well. In  particular  we  notice  the  tendency  of  parents  to  be  overindulgent to their  progeny often resulting in the most  horrendous of situations. These situations are exacerbated  when an accused belongs to a category with unlimited power  or  pelf  or  even  more  dangerously,  a  volatile  and  heady  cocktail of the two. The reality that such a class does exist is  for  all  to  see  and  is  evidenced  by  regular  and  alarming  incidents such as the present one.

“Nevertheless,  to  our  mind,  the  balance  sheet  tilts  marginally in favour of the appellant, and the ends of justice  would be met if the sentence awarded to him is commuted  from death to life  imprisonment under Section 302 of the

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Penal Code; the other part of the sentence being retained as  it is.”

25.  Rameshbhai  Chandubhai  Rathod  (2)  v.  State  of   

Gujarat, (2011) 2 SCC 764 was an unusual case in as much as  

the  two  learned  Judges  hearing  the  case  had  differed  on  the  

sentence to be awarded. Accordingly the matter was referred to a  

larger Bench which noted that the accused was about 28 years of  

age and had raped and killed a child studying in a school in Class  

IV. The accused was awarded a sentence of imprisonment for life  

subject  to  remissions  and commutation  at  the  instance  of  the  

Government  for  good  and  sufficient  reasons.  It  was  held  as  

follows:  

“Both  the  Hon'ble  Judges  have  relied  extensively  on  Dhananjoy Chatterjee case [(1994) 2 SCC 220]. In this case  the death sentence had been awarded by the trial court on  similar facts and confirmed by the Calcutta High Court and  the  appeal  too  dismissed  by  this  Court  leading  to  the  execution of the accused. Ganguly, J. has, however, drawn a  distinction on the facts of that case and the present one and  held that as the appellant was a young man, only 27 years of  age,  it  was  obligatory  on  the  trial  court  to  have  given  a  finding as to a possible rehabilitation and reformation and  the possibility that he could still become a useful member of  society in case he was given a chance to do so.

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“We are,  therefore,  of  the opinion that in  the light  of the  findings recorded by Ganguly, J.  it  would not be proper to  maintain the death sentence on the appellant….”

26.  Incidentally, Dhananjoy Chatterjee was also 27 years of age  

when  he  committed  the  offence  of  rape  and  murder,  while  

Rameshbhai Chandubhai  Rathod was 28 years of age when he  

committed the offence.  

27. In  Haresh Mohandas Rajput v. State of Maharashtra,   

(2011) 12 SCC 56 the Trial Court had awarded life sentence to  

the accused for the rape and murder of a 10 year old child but the  

High  Court  enhanced  it  to  a  sentence  of  death.  Taking  into  

account  the  view  of  the  Trial  Court,  this  Court  converted  the  

death sentence to one of life imprisonment. It was observed:

“So far as the sentence part is concerned, in view of the law  referred to hereinabove,  we are of the considered opinion  that the case does not fall within the “rarest of rare cases”.  The  High  Court  was  not  justified  in  enhancing  the  punishment.  Thus,  in  the  facts  and  circumstances  of  the  case,  we  set  aside  the  punishment  of  death  sentence  awarded by the High Court and restore the sentence of life  imprisonment  awarded  by  the  trial  court.  With  this  modification, the appeals stand disposed of.”

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28. In Amit v. State of Uttar Pradesh, (2012) 4 SCC 107 the  

death penalty awarded to the accused for the rape and murder of  

a 3 year old child was converted to imprisonment for life since the  

accused was a young man of 28 years when he committed the  

offence; he had no prior history of any heinous offence; there was  

nothing to suggest that he would repeat such a crime in future;  

and given a chance, he may reform. This Court sentenced him to  

life  imprisonment  subject  to  remissions  or  commutation.  This  

Court held:

“In the present case also, we find that when the appellant  committed the offence he was a young person aged about  28 years only.  There is  no evidence to show that  he had  committed the offences of  kidnapping,  rape or  murder  on  any earlier occasion. There is nothing on evidence to suggest  that he is likely to repeat similar crimes in future. On the  other hand, given a chance he may reform over a period of  years.  Hence,  following  the  judgment  of  the  three-Judge  Bench  in  Rameshbhai  Chandubhai  Rathod  (2) v.  State  of  Gujarat,  we  convert  the  death  sentence  awarded  to  the  appellant  to  imprisonment  for  life  and direct  that  the  life  sentence of the appellant will extend to his full life subject to  any  remission  or  commutation  at  the  instance  of  the  Government for good and sufficient reasons.”

Broad analysis:

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29. A study of the above cases suggests that there are several  

reasons, cumulatively taken, for converting the death penalty to  

that of imprisonment for life. However, some of the factors that  

have had an influence in commutation include (1) the young age  

of the accused (Amit v. State of Maharashtra aged 20 years,  

Rahul  aged 24 years, Santosh Kumar Singh  aged 24 years,  

Rameshbhai Chandubhai Rathod (2) aged 28 years and Amit  

v. State of Uttar Pradesh aged 28 years); (2) the possibility of  

reforming  and  rehabilitating  the  accused  (Santosh  Kumar  

Singh  and Amit  v.  State  of  Uttar  Pradesh  the  accused,  

incidentally,  were young when they committed the crime);  (3)  

the accused had no prior criminal record (Nirmal Singh, Raju,  

Bantu, Amit  v.  State  of  Maharashtra, Surendra  Pal  

Shivbalakpal, Rahul and Amit v. State of Uttar Pradesh); (4)  

the accused was not likely to be a menace or threat or danger to  

society or the community (Nirmal Singh, Mohd. Chaman, Raju,  

Bantu, Surendra Pal Shivbalakpal, Rahul and Amit v. State  

of Uttar Pradesh). A few other reasons need to be mentioned  

such as the accused having been acquitted by one the Courts  

(State of Tamil Nadu v. Suresh, State of Maharashtra v.

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Suresh, Bharat  Fakira  Dhiwar,  Mansingh  and Santosh  

Kumar Singh);  the crime was not premeditated (Kumudi Lal,  

Akhtar, Raju and Amrit  Singh);  the  case  was  one  of  

circumstantial evidence (Mansingh and Bishnu Prasad Sinha).  

In  one  case,  commutation  was  ordered  since  there  was  

apparently  no ‘exceptional’  feature warranting a death penalty  

(Kumudi Lal) and in another case because the Trial Court had  

awarded life sentence but the High Court enhanced it to death  

(Haresh Mohandas Rajput).   

Cases where the death penalty has been confirmed:

30. Jumman Khan v. State of Uttar Pradesh, (1991) 1 SCC  

752 was a case in which the death penalty was confirmed by this  

Court for the rape and murder of a 6 year old child on the basis of  

the brutality  of the crime and on circumstantial  evidence.  This  

Court quoted the order dismissing the special leave petition of the  

accused against his conviction, in which it was said:

“Although the conviction of the petitioner under Section 302  of  the  Indian  Penal  Code,  1860  rests  on  circumstantial  evidence, the circumstantial evidence against the petitioner

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

Failure  to  impose  a  death  sentence  in  such  grave  cases  where it is a crime against the society - particularly in cases  of murders committed with extreme brutality - will bring to  naught the sentence of death provided by Section 302 of the  Indian Penal Code. It  is the duty of the court to impose a  proper punishment depending upon the degree of criminality  and  desirability  to  impose  such  punishment.  The  only  punishment  which  the  appellant  deserves  for  having  committed the reprehensible and gruesome murder of the  innocent child to satisfy his lust, is nothing but death as a  measure of social necessity and also as a means of deterring  other  potential  offenders.  The  sentence  of  death  is  confirmed.”

31. In  Dhananjoy  Chatterjee  v.  State  of  West  Bengal,   

(1994) 2 SCC 220 this Court confirmed the death sentence of  

the 27 year  old  married accused taking into  consideration the  

rising  crime  graph,  particularly  violent  crime  against  women;  

society’s cry for justice against criminals; and the fact that the  

rape  and  murder  of  an  18  year  old  was  premeditated  and  

committed  in  a  brutal  manner  by  a  security  guard  against  a  

young defenceless person to satisfy his lust and in retaliation for a

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complaint made by her against him. This is what this Court had to  

say:  

“In recent years, the rising crime rate — particularly violent  crime against women has made the criminal sentencing by  the courts a subject of concern……….

“In our opinion, the measure of punishment in a given case  must depend upon the atrocity of the crime; the conduct of  the criminal and the defenceless and unprotected state of  the  victim.  Imposition  of  appropriate  punishment  is  the  manner in which the courts respond to the society's cry for  justice  against  the  criminals.  Justice  demands  that  courts  should impose punishment befitting the crime so that the  courts  reflect  public  abhorrence  of  the  crime.  The  courts  must not only keep in view the rights of the criminal but also  the rights of  the victim of  crime and the society at  large  while considering imposition of appropriate punishment.

“The  sordid  episode  of  the  security  guard,  whose  sacred  duty  was  to  ensure  the  protection  and  welfare  of  the  inhabitants  of  the  flats  in  the  apartment,  should  have  subjected the deceased,  a resident of  one of the flats,  to  gratify his lust and murder her in retaliation for his transfer  on  her  complaint,  makes  the  crime  even  more  heinous.  Keeping in view the medical evidence and the state in which  the body of  the deceased was found,  it  is  obvious that  a  most  heinous  type  of  barbaric  rape  and  murder  was  committed on a helpless and defenceless school-going girl of  18 years……..”

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32. In  Laxman Naik v. State of Orissa, (1994) 3 SCC 381  

this  Court  was  of  the  opinion  that  since  the  accused  was  the  

guardian of the helpless victim, his 7 year old niece, and since the  

crime was pre-planned, cold blooded, brutal and diabolical,  the  

appropriate punishment would be a sentence of death. This Court  

held:  

“The hard facts of the present case are that the appellant  Laxman is the uncle of the deceased and almost occupied  the status and position that of a guardian. Consequently the  victim  who  was  aged  about  7  years  must  have  reposed  complete  confidence  in  the  appellant  and  while  reposing  such  faith  and  confidence  in  the  appellant  must  have  believed in his bona fides and it was on account of such a  faith and belief  that  she acted upon the command of  the  appellant  in  accompanying him under the impression that  she  was  being  taken  to  her  village  unmindful  of  the  preplanned unholy designs of the appellant. The victim was  a totally helpless child there being no one to protect her in  the desert where she was taken by the appellant misusing  her confidence to fulfil his lust. It appears that the appellant  had  preplanned  to  commit  the  crime  by  resorting  to  diabolical methods and it was with that object that he took  the girl to a lonely place to execute his dastardly act.”

33. Kamta Tiwari v. State of Madhya Pradesh, (1996) 6  

SCC 250 was a case where the accused was close to the family of  

the victim, a 7 year old child. In fact, she would address him as

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‘Uncle Tiwari’.  He was,  therefore,  in  the nature of  a  person of  

trust, while the victim was in a hapless condition and was brutally  

raped and murdered in a premeditated manner. This Court held:  

“Taking an overall view of all the facts and circumstances of  the instant case in the light of the above propositions we are  of  the  firm opinion that  the sentence of  death  should  be  maintained.  In  vain  we  have  searched  for  mitigating  circumstances  —  but  found  aggravating  circumstances  aplenty. …… When an innocent hapless girl of 7 years was  subjected to such barbaric treatment by a person who was in  a position of her trust his culpability assumes the proportion  of extreme depravity and arouses a sense of revulsion in the  mind  of  the  common man.  In  fine,  the  motivation  of  the  perpetrator, the vulnerability of the victim, the enormity of  the crime, the execution thereof persuade us to hold that  this is a “rarest of rare” cases where the sentence of death is  eminently desirable not only to deter others from committing  such atrocious crimes but also to give emphatic expression  to society's abhorrence of such crimes.”

34. Nirmal Singh v. State of Haryana, (1999) 3 SCC 670  

has  already  been  referred  to  above.  One  of  the  accused  

Dharampal, had been convicted for rape and had filed an appeal.  

Pending the appeal, he applied for and was granted bail. While on  

bail, he killed five members of the family who had given evidence  

against  him  in  the  case  for  which  he  was  convicted  of  rape,

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thereby carrying out the threat he had earlier given. The crime  

was pre-planned and executed in a brutal manner. Confirming the  

death penalty awarded to him, this Court held:    

“…… Coming to the question of sentence, however, we find  that the High Court has not considered the individual role  played  by  each  of  the  appellants.  So  far  as  accused  Dharampal is concerned, it is he who had given the threat on  the previous occasion that if anybody gives evidence in the  rape case, the whole family will be wiped off. It is he who  after  being  convicted  in  the  said  rape  case  preferred  an  appeal  and  obtained  a  bail  from the  High  Court  and  has  totally misutilised that privilege of bail by killing 5 persons  who  were  all  the  members  of  the  family  of  P  whose  deposition  was  responsible  for  his  conviction  in  the  rape  case.  It  is  he who has assaulted each of  the  5 deceased  persons by means of a kulhari and the nature of the injuries  as found by the doctor would indicate that the act is an act  of a depraved mind and is most brutal and heinous in nature.  It is he who had consecrated the plan to put into action his  earlier  threat  but  he  has  taken  the  help  of  his  brother  Nirmal.”

35. Jai Kumar v. State of Madhya Pradesh, (1999) 5 SCC 1  

was a case in which the death penalty was confirmed since this  

Court accepted the view of the High Court that the accused was a  

“living  danger”  and  incapable  of  rehabilitation.  The  crime was  

that  of  an  attempted  rape  of  a  30  year  old  pregnant  woman

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followed by her murder and the murder of her 8 year old child.  

This  Court  held that  the crime was brutal  and committed in  a  

gruesome and depraved manner. The fact that the accused was a  

young man of 22 years was held not to be a relevant factor, given  

the nature of the crime. The judicial conscience of this Court was  

shocked by the facts of the case. It was held:  

“…..  [W]e  are  unable  to  record  our  concurrence with  the  submissions of Mr Muralidhar that there are some mitigating  circumstances and there is likelihood of the accused being  reformed or  rehabilitated.  Incidentally,  the High Court  has  described the accused as “a living danger” and we cannot  agree more therewith in view of the gruesome act as noticed  above.

“The  facts  establish  the  depravity  and  criminality  of  the  accused in no uncertain terms. No regard being had for the  precious  life  of  the  young  child  also.  The  compassionate  ground of the accused being 22 years of age cannot in the  facts of the matter be termed to be at all relevant……

“In the present case,  the savage nature of the crime has  shocked  our  judicial  conscience.  The  murder  was  cold- blooded  and  brutal  without  any  provocation.  It  certainly  makes it  a rarest of the rare cases in which there are no  extenuating or mitigating circumstances.

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36. In  Molai  & Anr.  v.  State of  M.P.,  (1999)  9  SCC 581  

death  penalty  awarded  to  both  the  accused  for  the  rape  and  

murder of a 16 year old was confirmed. Molai was a guard in a  

Central Jail and Santosh was undergoing a sentence in that jail.  

The victim was the daughter of the Assistant Jailor. Taking into  

account the manner of commission of the offence and the fact  

that they took advantage of the victim being alone in a house, the  

death penalty was confirmed by this Court although the case was  

one of circumstantial evidence. This Court held:  

“…… It cannot be overlooked that N, a 16-year-old girl, was  preparing for her Class 10th examination at her house and  suddenly  both  the  accused  took  advantage  of  she  being  alone in the house and committed a most shameful act of  rape. The accused did not stop there but they strangulated  her by using her undergarment and thereafter took her to  the septic tank along with the cycle and caused injuries with  a sharp-edged weapon. The accused did not even stop there  but  they  exhibited  the  criminality  in  their  conduct  by  throwing  the  dead  body  into  the  septic  tank  totally  disregarding the respect for a human dead body.  Learned  counsel  for  the  accused  (appellants)  could  not  point  any  mitigating  circumstance  from  the  record  of  the  case  to  justify the reduction of sentence of either of the accused.”

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37. State of Uttar Pradesh v. Satish, (2005) 3 SCC 114 is a  

remarkable case for the reason that the accused was acquitted by  

the High Court and yet the death penalty awarded by the Trial  

Court  was  upheld  by  this  Court  for  the  rape and murder  of  a  

school  going  child.  The  case  was  also  one  of  circumstantial  

evidence.  The  special  reasons  for  awarding  the  death  penalty  

were the diabolic and inhuman nature of the crime. It was held:

“Considering  the  view expressed by  this  Court  in  Bachan  Singh case and Machhi Singh case we have no hesitation in  holding  that  the  case  at  hand  falls  in  the  rarest  of  rare  category and death sentence awarded by the trial court was  appropriate.  The  acquittal  of  the  respondent-accused  is  clearly unsustainable and is set aside. In the ultimate result,  the judgment of the High Court is set aside and that of the  trial court is restored. The appeals are allowed.”

38. Shivu  &  Anr.   v.  Registrar  General,  High  Court  of   

Karnataka, (2007) 4 SCC 713 was a case in which the special  

reasons  for  confirming  the  death  penalty  given  to  both  the  

accused who were aged about 20 and 22 years old respectively  

were the heinous rape and murder of an 18 year old. It was noted  

that the accused had twice earlier attempted to commit rape but  

were not successful. Though no case was lodged against them,

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they were admonished by the village elders and the Panchayat  

and asked to mend their ways. It was held:

“Considering  the  view expressed by  this  Court  in  Bachan  Singh case and Machhi Singh case we have no hesitation in  holding that the case at hand falls in rarest of rare category  and  death  sentence  awarded  by  the  trial  court  and  confirmed by the High Court was appropriate.”

39. In Bantu v. State of Uttar Pradesh, (2008) 11 SCC 113  

the death sentence was confirmed for the special reason of the  

depraved and heinous act of rape and murder of a 5 year old  

child, which included the insertion of a wooden stick in her vagina  

to the extent of 33 cms. to masquerade the crime as an accident.  

This Court held:  

“The case at hand falls in the rarest of the rare category. The  depraved acts of the accused call for only one sentence, that  is, death sentence.”

40. In Shivaji v. State of Maharashtra, (2008) 15 SCC 269  

this  Court  categorically  rejected  the  view  that  death  sentence  

cannot  be  awarded  in  a  case  where  the  evidence  is  

circumstantial.  The death sentence was upheld also because of

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the depraved acts of the accused in raping and murdering a 9  

year old child. This Court held:  

“The plea that in a case of circumstantial  evidence death  should  not  be  awarded  is  without  any  logic.  If  the  circumstantial  evidence  is  found  to  be  of  unimpeachable  character in establishing the guilt of the accused, that forms  the foundation for conviction. That has nothing to do with  the question of sentence as has been observed by this Court  in  various  cases  while  awarding  death  sentence.  The  mitigating circumstances and the aggravating circumstances  have  to  be  balanced.  In  the  balance  sheet  of  such  circumstances, the fact that the case rests on circumstantial  evidence has no role to play..........

“The case at hand falls in the rarest of the rare category. The  circumstances highlighted above establish the depraved acts  of the accused, and they call for only one sentence, that is,  death sentence.”

41. In  Ankush  Maruti  Shinde  v.  State  of  Maharashtra,   

(2009) 6 SCC 667 of the six accused, three were awarded life  

sentence by the High Court  while for  the remaining three,  the  

death sentence was confirmed. The accused were found to have  

committed five murders and had raped a lady (who survived) and  

a child of 15 years of age (who died).  This Court awarded the  

death penalty to all the six accused. This Court found the crime to

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be cruel and diabolic; the collective conscience of the community  

was shocked; the victims were of a tender age and defenceless;  

the victims had no animosity towards the accused and the attack  

against  them  was  unprovoked.  Considering  these  factors,  this  

Court awarded the death penalty to all the accused and held:   

“The murders were not only cruel, brutal but were diabolic.  The High Court has held that those who were guilty of rape  and murder deserve death sentence, while those who were  convicted for murder only were to be awarded life sentence.  The High Court noted that the whole incident is extremely  revolting,  it  shocks  the  collective  conscience  of  the  community  and  the  aggravating  circumstances  have  outweighed  the  mitigating  circumstances  in  the  case  of  accused persons 1,  2 and 4;  but  held that in the case of  others it was to be altered to life sentence.

“The High Court itself noticed that five members of a family  were brutally murdered, they were not known to the accused  and  there  was  no  animosity  towards  them.  Four  of  the  witnesses were of tender age, they were defenceless and the  attack was without any provocation. Some of them were so  young that they could not resist any attack by the accused.  A minor girl of about fifteen years was dragged to the open  field, gang-raped and done to death.

“Above being the position, the appeals filed by the accused  persons deserve dismissal, which we direct and the State's  appeals  deserve to be allowed.  A-2,  A-3 and A-5 are also

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awarded  death  sentence.  In  essence  all  the  six  accused  persons deserve death sentence.”

42. B.A.  Umesh  v.  Registrar  General,  High  Court  of  

Karnataka, (2011) 3 SCC 85 was a case of the rape and murder  

of a lady, a mother of a 7 year old child. In the High Court, there  

was a difference of opinion on the sentence to be awarded – one  

of the learned judges confirmed the death penalty while the other  

learned judge was of the view that imprisonment for life should be  

awarded. The matter was referred to a third learned judge who  

agreed with the award of a death penalty. This Court confirmed  

the  death  penalty  since  the  crime  was  unprovoked  and  

committed in a depraved and merciless manner; the accused was  

alleged  to  have  been  earlier  and  subsequently  involved  in  

criminal activity; he was a menace to society and incapable of  

rehabilitation; the accused did not feel any remorse for what he  

had done. It was held:

“On  the  question  of  sentence  we  are  satisfied  that  the  extreme depravity with which the offences were committed  and the merciless manner in which death was inflicted on  the victim, brings it within the category of the rarest of rare  cases which merits the death penalty,  as awarded by the

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trial  court  and confirmed  by  the  High  Court.  None of  the  mitigating factors as were indicated by this Court in Bachan  Singh case or in Machhi Singh case are present in the facts  of the instant case. The appellant even made up a story as  to his presence in the house on seeing PW 2 Suresh, who  had come there in the meantime. Apart from the above, it is  clear from the recoveries made from his house that this was  not  the first  time that  he  had committed  crimes  in  other  premises also, before he was finally caught by the public two  days after the present incident, while trying to escape from  the house of one Seeba where he made a similar attempt to  rob and assault her and in the process causing injuries to  her.

“As has been indicated by the courts below, the antecedents  of the appellant and his subsequent conduct indicates that  he  is  a  menace  to  the  society  and  is  incapable  of  rehabilitation. The offences committed by the appellant were  neither under duress nor on provocation and an innocent life  was snuffed out by him after committing violent rape on the  victim. He did not feel any remorse in regard to his actions,  inasmuch as, within two days of the incident he was caught  by the local public while committing an offence of a similar  type in the house of one Seeba."

43. Mohd. Mannan v. State of Bihar, (2011) 5 SCC 317 was  

a case which a 42 year old man had raped and killed a 7 year old  

child.  This  Court  looked  at  the  factors  for  awarding  death  

sentence both in the negative as well as in the positive sense. It

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was held that the number of persons killed by the accused is not  

a decisive factor; nor is the mere brutality of the crime decisive.  

However  if  the  brutality  of  the  crime  shocks  the  collective  

conscience of the community, one has to lean towards the death  

penalty. Additionally, it is to be seen if the accused is a menace to  

society  and  can  be  reformed  or  not.  Applying  these  broad  

parameters, this Court held that the accused was a mature man  

of  43 years;  that  he held  a position of  trust  in  relation to  the  

victim; that the crime was pre-planned; and that the crime was,  

pre-planned,  unprovoked  and  gruesome  against  a  defenceless  

child. It was held:

“……. The appellant is a matured man aged about 43 years.  He  held  a  position  of  trust  and  misused  the  same  in  a  calculated and pre-planned manner.  He sent the girl  aged  about 7 years to buy betel  and few minutes thereafter in  order  to  execute  his  diabolical  and  grotesque  desire  proceeded towards the shop where she was sent. The girl  was aged about 7 years of thin built and 4 ft of height and  such  a  child  was  incapable  of  arousing  lust  in  normal  situation. The appellant had won the trust of the child and  she did  not  understand the  desire  of  the  appellant  which  would  be evident  from the fact  that  while  she was being  taken away by the appellant no protest was made and the  innocent child was made prey of the appellant's lust.

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“The post-mortem report shows various injuries on the face,  nails  and  body  of  the  child.  These  injuries  show  the  gruesome manner in which she was subjected to rape. The  victim of crime is an innocent child who did not provide even  an excuse, much less a provocation for murder. Such cruelty  towards  a  young  child  is  appalling.  The  appellant  had  stooped  so  low  as  to  unleash  his  monstrous  self  on  the  innocent, helpless and defenceless child. This act no doubt  had  invited  extreme  indignation  of  the  community  and  shocked  the  collective  conscience  of  the  society.  Their  expectation from the authority conferred with the power to  adjudicate is to inflict the death sentence which is natural  and logical.  We are of  the opinion that the appellant  is  a  menace to the society and shall continue to be so and he  cannot be reformed.”

44. In  Rajendra  Pralhadrao  Wasnik  v.  State  of   

Maharashtra, (2012) 4 SCC 37 the accused, a 31 year old, had  

raped and murdered a 3 year old child. This Court considered the  

brutality of the crime and the conduct of the accused prior to,  

during and after the crime. Prior to the incident, the accused had  

worked  under  a  false  name  and  had  gained  the  trust  and  

confidence of  the victim.  The accused had,  after  committing a  

brutal crime, left the injured victim in the open field without any  

clothes, thereby exhibiting his unfortunate and abusive conduct.  

It was held:

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“This Court has to examine the conduct of the accused prior  to, at the time as well as after the commission of the crime.  Prior thereto, the accused had been serving with PW 5 and  PW  6  under  a  false  name  and  took  advantage  of  his  familiarity with the family  of the deceased.  He committed  the  crime  in  the  most  brutal  manner  and,  thereafter,  he  opted not to explain any circumstances and just took up the  plea  of  false  implication,  which  is  unbelievable  and  unsustainable.

“Another aspect of the matter is that the minor child was  helpless in the cruel hands of the accused. The accused was  holding  the  child  in  a  relationship  of  “trust-belief”  and  “confidence”, in which capacity he took the child from the  house of PW 2. In other words, the accused, by his conduct,  has belied the human relationship of trust and worthiness.  The accused left the deceased in a badly injured condition in  the open fields without even clothes. This reflects the most  unfortunate and abusive facet of human conduct, for which  the accused has to blame no one else than his own self.”

Broad analysis:

45. The principal reasons for confirming the death penalty in the  

above cases include (1) the cruel, diabolic, brutal, depraved and  

gruesome  nature  of  the  crime  (Jumman  Khan,  Dhananjoy  

Chatterjee,  Laxman Naik, Kamta Tewari, Nirmal Singh, Jai

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Kumar, Satish, Bantu,  Ankush Maruti Shinde, B.A. Umesh,  

Mohd.  Mannan  and  Rajendra Pralhadrao  Wasnik);  (2)  the  

crime results in public abhorrence, shocks the judicial conscience  

or  the  conscience  of  society  or  the  community  (Dhananjoy  

Chatterjee,  Jai  Kumar,  Ankush  Maruti  Shinde and  Mohd.  

Mannan);  (3) the reform or rehabilitation of the convict  is  not  

likely or that he would be a menace to society (Jai Kumar, B.A.  

Umesh  and  Mohd. Mannan); (4) the victims were defenceless  

(Dhananjoy  Chatterjee,  Laxman  Naik, Kamta  Tewari,  

Ankush  Maruti  Shinde, Mohd.  Mannan  and  Rajendra  

Pralhadrao Wasnik);  (5)  the crime was either  unprovoked or  

that  it  was  premeditated  (Dhananjoy  Chatterjee,  Laxman  

Naik, Kamta  Tewari, Nirmal  Singh, Jai  Kumar, Ankush  

Maruti Shinde, B.A. Umesh and Mohd. Mannan) and in three  

cases  the  antecedents  or  the  prior  history  of  the  convict  was  

taken  into  consideration  (Shivu, B.A.  Umesh  and  Rajendra  

Pralhadrao Wasnik).

46. However,  what  is  more significant  is  that  there are cases  

where  the  factors  taken  into  consideration  for  commuting  the  

death  penalty  were  given  a  go-bye  in  cases  where  the  death

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penalty was confirmed. The young age of the accused was not  

taken  into  consideration  or  held  irrelevant  in  Dhananjoy  

Chatterjee  aged  about  27  years,  Jai  Kumar  aged  about  22  

years and Shivu & another aged about 20 and 22 years while it  

was given importance in Amit v. State of Maharashtra, Rahul,  

Santosh Kumar Singh, Rameshbhai Chandubhai Rathod (2)  

and Amit  v.  State  of  Uttar  Pradesh. The  possibility  of  

reformation or  rehabilitation was ruled out,  without any expert  

evidence,  in  Jai  Kumar, B.A.  Umesh  and  Mohd. Mannan  in  

much  the  same manner,  without  any  expert  evidence,  as  the  

benefit  thereof  was  given  in  Nirmal  Singh,  Mohd.  Chaman,  

Raju, Bantu, Surendra Pal Shivbalakpal, Rahul and Amit v.  

State of Uttar Pradesh. Acquittal or life sentence awarded by  

the  High  Court  was  considered  not  good  enough  reason  to  

convert the death sentence in  Satish, Ankush Maruti Shinde  

and B.A.  Umesh  but  it  was  good enough in  State of  Tamil  

Nadu v. Suresh, State of Maharashtra v. Suresh, Bharat  

Fakira Dhiwar  and Santosh Kumar Singh.  Even though the  

crime was not premeditated, the death penalty was confirmed in  

Molai notwithstanding the view expressed in  Akhtar, Raju and

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Amrit  Singh.  Circumstantial  evidence  was  held  not  to  be  a  

‘mitigating’ factor in Jumman Khan, Kamta Tewari, Molai and  

Shivaji but it was so held in Bishnu Prasad Sinha.

47. Bachan  Singh  is  more  than  clear  that  the  crime  is  

important  (cruel,  diabolic,  brutal,  depraved and gruesome)  but  

the criminal  is  also important and this,  unfortunately has been  

overlooked in several cases in the past (as mentioned in Santosh  

Kumar  Satishbhushan  Bariyar  v.  State  of  Maharashtra,   

(2009) 6 SCC 498) and even in some of the cases referred to  

above.  It  is  this  individualized  sentencing  that  has  made  this  

Court  wary,  in  the recent past,  of  imposing death penalty and  

instead  substituting  it  for  fixed  term  sentences  exceeding  14  

years  (the  term  of  14  years  or  20  years  being  erroneously  

equated  with  life  imprisonment)  or  awarding  consecutive  

sentences. Some of these cases, which are not necessarily cases  

of rape and murder, are mentioned below.

Minimum fixed term sentences:

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48. There have been several cases where life sentence has been  

awarded  by  this  Court  with  a  minimum  fixed  term  of  

incarceration.  Many  of  them  have  been  discussed  in  Swamy  

Shraddananda  and  so  it  is  not  necessary  to  refer  to  them  

individually.   Swamy  Shraddananda  refers  to  Aloke  Nath  

Dutta v. State of West Bengal, (2007) 12 SCC 230 which in  

turn refers to five different cases. I propose to refer to them at  

this stage.

49. In Subhash Chander v. Krishan Lal, (2001) 4 SCC 458 it  

was held that the convict shall remain in prison “for the rest of his  

life.  He shall  not be entitled to any commutation or premature  

release  under  Section  401  of  the  Code  of  Criminal  Procedure,  

Prisoners Act, Jail Manual or any other statute and the rules made  

for the purposes of grant of commutation and remissions.”  

50.  In  Shri Bhagwan v. State of Rajasthan, (2001) 6 SCC  

296,  Prakash  Dhawal  Khairnar  (Patil) v.  State  of  

Maharashtra,  (2002)  2  SCC  35 and Ram  Anup  Singh v.  

State of Bihar, (2002) 6 SCC 686 the convict was directed to  

serve out at least 20 years of imprisonment.

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51. In  Mohd. Munna v.  Union of India, (2005) 7 SCC 417  

the convict had undergone 21 years of incarceration. This Court  

held that he was not entitled to release as a matter of course but  

was required to serve out his sentence till the remainder of his life  

subject  to  remissions  by  the  appropriate  authority  or  State  

Government.

52. Swamy  Shraddananda also  refers  to  Jayawant  

Dattatraya Suryarao v.  State of  Maharashtra,  (2001)  10  

SCC 109  in which it was directed that the convict “will  not be  

entitled to any commutation or premature release under Section  

433-A of the Criminal Procedure Code, Prisoners Act, Jail Manual  

or  any  other  statute  and  the  Rules  made  for  the  purpose  of  

commutation and remissions.” Similarly, in Nazir Khan v. State  

of Delhi, (2003) 8 SCC 461 while sentencing the convicts to  

imprisonment for  20 years it  was held that they would not  be  

entitled to any remission from this period.  

53. The  death  sentence  to  the  convict  in  Swamy  

Shraddananda was converted to  imprisonment  for  life  with  a

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further direction that he shall not be released till the rest of his  

life.  

54. Sebastian v. State of Kerala, (2010) 1 SCC 58 was a  

case  of  a  24  year  old  extremely  violent  pedophile  accused of  

raping  a  two-year  old  child  and  then  murdering  her.  While  

commuting the death sentence,  this  Court  held that  he should  

remain  in  jail  for  the  rest  of  his  life  in  terms  of  Swamy  

Shraddananda. It was observed:

“The  evidence  that  the  appellant  was  a  paedophile  with  extremely violent propensities also stands proved on record  in that he had been convicted and sentenced for an offence  punishable under Section 354 in the year 1998 and later for  the offences punishable under Sections 363, 376, 379, 302  and 201 IPC for the rape and murder of a young child and  had been awarded a sentence of imprisonment for life under  Section 302, and several other terms of imprisonment with  respect  to  the  other  sections,  though,  an  appeal  in  this  connection  was  pending  as  on  date.  It  is  also  extremely  relevant that the appellant had, in addition, been tried for  the murders of several other children but had been acquitted  on 28-7-2005 with the benefit of doubt. The present incident  happened three days later.

“We  accordingly  dismiss  the  appeals  but  modify  the  sentence of death to one for the rest of his life in terms of  the judgment in Shraddananda case.”

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55. In  Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC  

257 this Court converted the death sentence of the accused to  

imprisonment for life though the crime of rape and murder was  

heinous, since the accused persons were young at the time of  

commission of the offence (between 21 and 31 years of age); the  

possibility of the death of the victim being accidental;  and the  

accused not being a social menace with possibility of reforming  

themselves. It  was held, while modifying the sentence that the  

accused serve a term of imprisonment of 21 years:

“While we cumulatively examine the various principles and  apply them to the facts of the present case, it appears to us  that the age of the accused, possibility of the death of the  deceased  occurring  accidently  and  the  possibility  of  the  accused reforming themselves,  they cannot  be termed as  “social  menace”.  It  is  unfortunate but a hard fact  that all  these  accused  have  committed  a  heinous  and  inhumane  crime for satisfaction of their lust, but it cannot be held with  certainty that this case falls in the “rarest of rare” cases. On  appreciation of the evidence on record and keeping the facts  and circumstances of the case in  mind,  we are unable to  hold  that  any  other  sentence  but  death  would  be  inadequate.

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“Accordingly, while commuting the sentence of death to that  of  life  imprisonment  (21  years),  we  partially  allow  their  appeals only with regard to the quantum of sentence.”

56. In  Neel Kumar v. State of Haryana, (2012) 5 SCC 766  

this Court modified the death penalty awarded to the accused for  

the rape and murder of his 4 year old daughter to one of 30 years  

imprisonment without remissions. It was held:

“A three-Judge Bench of this Court in Swamy Shraddananda  (2) v.  State of Karnataka, considering the facts of the case,  set aside the sentence of death penalty and awarded the life  imprisonment but further explained that in order to serve the  ends of justice, the appellant therein would not be released  from prison till the end of his life.

“Similarly, in Ramraj v.  State of Chhattisgarh [(2010) 1 SCC  573] this Court while setting aside the death sentence made  a direction that the appellant therein would serve minimum  period of 20 years including remissions earned and would  not be released on completion of 14 years’ imprisonment.

“Thus, in the facts and circumstances of the case, we set  aside the death sentence and award life imprisonment. The  appellant must serve a minimum of 30 years in jail without  remissions, before consideration of his case for  premature  release.”

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57. In Sandeep v. State of U.P., (2012) 6 SCC 107 the death  

sentence awarded to the convict for the murder of his pregnant  

friend and pouring acid on her head was converted to sentence of  

life  for  a  minimum  period  of  30  years  without  any  remission  

before his case could be considered for premature release.

58. In Brajendrasingh v. State of Madhya Pradesh, (2012)   

4 SCC 289 the accused had murdered his wife and three children  

since he suspected his wife’s fidelity. The death penalty awarded  

to him was converted to imprisonment for life by this Court with a  

minimum imprisonment of 21 years. This is what was said by this  

Court:

“Considering the above aspects,  we are of the considered  view that it is not a case which falls in the category of the  “rarest of rare” cases where imposition of death sentence is  imperative. It is also not a case where imposing any other  sentence would not serve the ends of justice or would be  entirely inadequate.

“Once  we  draw  the  balance  sheet  of  aggravating  and  mitigating circumstances and examine them in the light of  the facts and circumstances of the present case, we have no  hesitation in coming to the conclusion that this is not a case  where this  Court  ought to  impose the extreme penalty of  death upon the accused. Therefore, while partially accepting

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the appeals only with regard to quantum of sentence,  we  commute the death sentence awarded to the accused to one  of life imprisonment (21 years).”

59. In  State of Uttar Pradesh v. Sanjay Kumar, (2012) 8   

SCC 537 this Court converted the death penalty awarded to the  

accused for the rape and murder of an 18 year old into one of life  

imprisonment  with  a  further  direction  that  he  would  not  be  

granted premature release under the guidelines framed for that  

purpose, that is, the Jail Manual or even under Section 433-A of  

the Cr. P.C. It was said:

“In view of the above, we reach the inescapable conclusion  that the submissions advanced by the learned counsel for  the State are unfounded. The aforesaid judgments make it  crystal  clear that this Court has merely found out the  via  media, where considering the facts and circumstances of a  particular  case,  by  way  of  which  it  has  come  to  the  conclusion  that  it  was  not  the  “rarest  of  rare  cases”,  warranting death penalty, but a sentence of 14 years or 20  years,  as  referred  to  in  the  guidelines  laid  down  by  the  States would  be totally  inadequate.  The life  imprisonment  cannot  be equivalent  to  imprisonment  for  14 years  or  20  years, rather it always meant as the whole natural life. This  Court has always clarified that the punishment so awarded  would  be  subject  to  any  order  passed  in  exercise  of  the  clemency powers of the President of India or the Governor of  the  State,  as  the  case  may  be.  Pardons,  reprieves  and

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remissions  are  granted  in  exercise  of  prerogative  power.  There is no scope of judicial review of such orders except on  very limited grounds, for example, non-application of mind  while  passing  the  order;  non-consideration  of  relevant  material; or if the order suffers from arbitrariness. The power  to grant pardons and to commute sentences is coupled with  a  duty  to  exercise  the  same  fairly  and  reasonably.  Administration of justice cannot be perverted by executive or  political pressure. Of course, adoption of uniform standards  may not be possible while exercising the power of pardon.  Thus, such orders do not interfere with the sovereign power  of  the  State.  More  so,  not  being  in  contravention  of  any  statutory  or  constitutional  provision,  the  orders,  even  if  treated  to  have  been  passed  under  Article  142  of  the  Constitution do not deserve to be labelled as unwarranted.  The  aforesaid  orders  have  been  passed  considering  the  gravity of the offences in those cases that the accused would  not be entitled to be considered for premature release under  the  guidelines  issued  for  that  purpose  i.e.  under  the  Jail  Manual, etc. or even under Section 433-A CrPC.”

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

the death sentence was converted to imprisonment for life with  

the  requirement  that  the  convict  spends  a  minimum  of  thirty  

years in jail without remission. It was held:

“We are of the view, so far as this case is concerned, that  the  extreme  sentence  of  capital  punishment  is  not  warranted.  Due  to  the  fact  that  the  appellants  are  instrumental  for  the  death  of  four  persons  and  nature  of  injuries  they  have  inflicted,  in  front  of  PW 1,  whose  son,

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daughter-in-law and two grandchildren were murdered, we  are of the view that the appellants deserve no sympathy.  Considering the totality of facts and circumstances of this  case  we  hold  that  imposition  of  death  sentence  on  the  appellants  was  not  warranted  but  while  awarding  life  imprisonment  to  the  appellants,  we  hold  that  they  must  serve a minimum of thirty years in jail without remission. The  sentence awarded by the trial court and confirmed by the  High Court is modified as above. Under such circumstances,  we modify  the  sentence from death  to  life  imprisonment.  Applying the principle laid down by this Court in Sandeep we  are of the view that the minimum sentence of thirty years  would be an adequate punishment, so far as the facts of this  case are concerned.”

Consecutive sentence cases:

61. Ravindra Trimbak Chouthmal v. State of Maharashtra,   

(1996) 4 SCC 148 is perhaps among the earliest cases where  

consecutive sentences were awarded. This was not a case of rape  

and murder but one of causing a dowry death of his pregnant  

wife.  It  was  held  that  it  was  not  the  “rarest  of  rare”  cases  

“because dowry death has ceased to belong to  that species of  

killing.” The death sentence was, therefore, not upheld. Since the  

accused had attempted to cause disappearance of the evidence  

by severing the head and cutting the body into nine pieces, this

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Court directed that he should undergo the sentence for that crime  

after serving out his life sentence. It was held:  

“We have given considered thought to the question and we  have not been able to place the case in that category which  could be regarded as the “rarest of the rare” type. This is so  because dowry death has ceased to belong to that species of  killing. The increasing number of dowry deaths would bear  this. To halt the rising graph, we, at one point, thought to  maintain  the  sentence;  but  we entertain  doubt  about  the  deterrent  effect  of  a  death  penalty.  We,  therefore,  resist  ourselves from upholding the death sentence, much though  we would have desired annihilation of a despicable character  like  the  appellant  before  us.  We,  therefore,  commute the  sentence of death to one of RI for life imprisonment.

“But then,  it  is a fit  case, according to us,  where,  for  the  offence under Sections 201/34, the sentence awarded, which  is RI for seven years being the maximum for a case of the  present type, should be sustained, in view of what had been  done to cause disappearance of the evidence relating to the  commission  of  murder  — the  atrocious  way  in  which  the  head  was  severed  and  the  body  was  cut  in  nine  pieces.  These  cry  for  maximum  sentence.  Not  only  this,  the  sentence has to run consecutively, and not concurrently, to  show our strong disapproval of the loathsome, revolting and  dreaded device adopted to cause disappearance of the dead  body. To these sentences, we do not, however, desire to add  those  awarded  for  offences  under  Sections  316  and  498- A/34, as killing of the child in the womb was not separately  intended,  and  Section  498-A  offence  ceases  to  be  of  significance and importance in view of the murder of Vijaya.

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“The result is that the appeal stands allowed to the extent  that  the  sentence  of  death  is  converted  to  one  of  imprisonment for life. But then, the sentence of seven years'  RI  for  the  offence  under  Sections  201/34  IPC  would  start  running after the life imprisonment has run its course as per  law.”

Since imprisonment for life means that the convict will remain in  

jail till the end of his normal life, what this decision mandates is  

that  if  the  convict  is  to  be  earlier  released  by  the  competent  

authority  for  any  reason,  in  accordance  with  procedure  

established  by  law,  then  the  second  sentence  will  commence  

immediately thereafter.

62. Ronny v. State of Maharashtra, (1998) 3 SCC 625 is  

also  among  the  earliest  cases  in  the  recent  past  where  

consecutive sentences were awarded. The three accused, aged  

about 35 years (two of them) and 25/27 years had committed  

three murders and a gang rape. This Court converted the death  

sentence of  all  three  to  imprisonment  for  life  since  it  was not  

possible  to  identify  whose  case  would  fall  in  the  category  of  

“rarest of rare” cases. However, after awarding a sentence of life  

imprisonment,  this  Court  directed  that  they  would  all  undergo

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punishment for the offence punishable under Section 376(2)(g) of  

the  IPC  consecutively,  after  serving  the  sentences  for  other  

offences. It was held:  

“Considering  the  cumulative  effect  of  all  the  factors,  it  cannot be said that the offences were committed under the  influence of extreme mental or emotional disturbance for the  whole thing was done in a pre-planned way; having regard to  the nature of offences and circumstances in which they were  committed, it is not possible for the Court to predict that the  appellant would not commit criminal act of violence or would  not be a threat to the society. A-1 is 35 years' old, A-2 is 35  years' old and A-3 is 25 (sic 27) years' old. The appellants  cannot be said to be too young or too old. The possibility of  reform  and  rehabilitation,  however,  cannot  be  ruled  out.  From  the  facts  and  circumstances,  it  is  not  possible  to  predict as to who among the three played which part. It may  be that the role of one has been more culpable in degree  than that of the others and vice versa. Where in a case like  this it is not possible to say as to whose case falls within the  “rarest of the rare” cases, it would serve the ends of justice  if  the  capital  punishment  is  commuted  into  life  imprisonment. Accordingly, we modify the sentence awarded  by the courts below under Section 302 read with Section 34  from  death  to  life  imprisonment.  The  sentences  for  the  offences  for  which  the  appellants  are  convicted,  except  under  Section  376(2)(g)  IPC,  shall  run  concurrently;  they  shall  serve  sentence  under  Section  376(2)(g)  IPC  consecutively, after serving sentence for the other offences.”

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63. In Sandesh v. State of Maharashtra, (2013) 2 SCC 479  

this Court converted the death penalty awarded to the accused to  

imprisonment for life, inter alia, for the rape of a pregnant lady,  

attempted  murder  and  the  murder  of  her  mother  in  law  to  

imprisonment  for  life  with  a  further  direction  that  all  the  

sentences were to run consecutively.

64. In  Sanaullah  Khan  v.  State  of  Bihar,   

MANU/SC/0165/2013 the  death  sentence  awarded  to  the  

accused for the murder of three persons was converted by this  

Court to imprisonment for life for each of the three murders and  

further the sentences were directed to run consecutively.  

65. These  decisions  clearly  suggest  that  this  Court  has  been  

seriously  reconsidering,  though  not  in  a  systemic  manner,  

awarding  life  sentence  as  an  alternative  to  death  penalty  by  

applying (though not necessarily mentioning) the “unquestionably  

foreclosed” formula laid down in Bachan Singh.  

66. Off  and on,  the  issue has  been the  interpretation of  “life  

sentence” – does it mean imprisonment for only 14 years or 20  

years or does it mean for the life of the convict. This doubt has

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been  laid  to  rest  in  several  cases,  more  recently  in  Sangeet  

where it  has  been unequivocally  laid  down that  a sentence of  

imprisonment  for  life  means  imprisonment  for  the  rest  of  the  

normal  life  of  the  convict.  The  convict  is  not  entitled  to  any  

remission  in  a  case  of  sentence  of  life  imprisonment,  as  is  

commonly  believed.  However,  if  the  convict  is  sought  to  be  

released before the expiry of his life, it can only be by following  

the procedure laid down in Section 432 of the Code of Criminal  

Procedure or by the Governor exercising power under Article 161  

of  the Constitution or by the President exercising power under  

Article  72  of  the  Constitution.  There  is  no  other  method  or  

procedure.  Whether the statutory procedure under Section 432 of  

the Code of Criminal Procedure can be stultified for a period of 20  

years  or  30  years  needs  further  discussion  as  observed  in  

Sangeet, which did not deal with the constitutional power.  This  

side  issue  does  not  arise  in  the  present  case  also,  and  is  

therefore, not being discussed.

Information from the National Crime Records Bureau:

67. Quite apart from the above discussion, assuming a case can  

be identified as the rarest of rare, the chapter does not end with

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awarding the death sentence. From the information available in  

the  annual  reports  published  by  the  National  Crime  Records  

Bureau  (NCRB) and which is freely available on the internet, it  

appears that between 2001 and 2011 (both years included) death  

sentence has been awarded to as many as 1455 persons and one  

person (Dhananjoy Chatterjee) was executed in 2004. However,  

death sentence has been converted to life imprisonment during  

the same period in respect of 4321 persons. The figures (of death  

sentence awarded and commuted) obviously do not match. It is  

unlikely that all the commutations were by the Executive. Perhaps  

(it is not at all clear) the NCRB has also taken into account cases  

where the death sentence awarded by the Trial  Court  has  not  

been confirmed by the High Court  and those cases where the  

High Court has confirmed the sentence, but it has been modified  

by  this  Court  or  cases  where  a  plea  of  not  guilty  has  been  

accepted by this Court for want of conclusive evidence. Whatever  

the reason, there is an obvious and glaring mismatch.  

68. There  are  also  an  extraordinarily  high  number  of  

“commutations”  granted  in  Delhi.  In  2005  Delhi  granted  919  

commutations; in 2006 Delhi granted 806 commutations; and in

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2007 Delhi granted 726 commutations.  A correspondingly high  

number  of  death  sentences  were  not  awarded  in  Delhi  in  the  

relevant years, but it is difficult to say whether there were such a  

large  number  of  pending  death  sentences  awaiting  execution.  

There appears to be an inexplicable error in this regard also but  

even  if  the  commutations  granted  in  Delhi  are  taken  out  of  

calculation,  there would still  be a baffling mismatch in  figures.  

The commutation figures given by the NCRB may not be entirely  

reliable,  but  in  any  case  there  is  no  reason  to  doubt  the  

correctness of the number of death sentences awarded, which too  

is rather high, making it unclear whether death penalty is really  

being awarded only in the rarest of rare cases.

69. The details mentioned above, as obtained from a study of  

the publications of the NCRB, are compiled in the following chart:  

DETAILS OF DEATH SENTENCE DURING 2001 TO 2011

STATE/U.T. CONVICTS  SENTENCED TO  

DEATH

CONVICTS WHOSE  SENTENCE  

COMMUTED TO LIFE  IMPRISONMENT

EXECUTED

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Andhra  Pradesh

8 3 0

Assam 21 97 0 Bihar 132 343 0 Chhattisgar h

18 24 0

Goa 1 0 0 Gujarat 57 3 0 Haryana 31 23 0 Himachal  Pradesh

3 2 0

Jharkhand 81 300 0 Jammu &  Kashmir

20 18 0

Karnataka 95 2 0 Kerala 34 23 0 Madhya  Pradesh

87 62 0

Maharashtr a

125 175 0

Manipur 3 1 0 Meghalaya 6 2 0 Mizoram 0 0 0 Nagaland 0 15 0 Orissa 33 68 0 Punjab 19 24 0

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Rajasthan 38 33 0 Sikkim 0 0 0 Tamil Nadu 95 24 0 Tripura 2 9 0 Uttar  Pradesh

370 458 0

Uttarakhand 16 46 0 West Bengal 79 98 1 Total 1374 1853 1 Chandigarh 4 3 0 Dadra &  Nagar  Haveli

0 0 0

Daman &  Diu

4 0 0

Delhi 71 2462 0 Lakshadwee p

0 2 0

Pondicherry 2 1 0 Total 81 2468 0 Grand  Total

1455 4321 1

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70. The significance of  these figures  is  that  even  though  the  

Courts have awarded death penalty in appropriate cases applying  

the  rarest  of  rare  principle,  the  death  sentence  has  been  

commuted  in  many  of  them.  The  reasons  for  commuting  the  

death sentence by the Executive are not in the public domain and  

therefore  it  is  not  possible  to  know  what  weighed  with  the  

Executive in commuting the death sentence of each convict. Was  

the reason for commutation that the crime and the criminal did  

not fall in the category of rarest of rare and if so what was the  

basis for coming to this conclusion when the competent Court has  

come to a different conclusion?  

71. It seems to me that though the Courts have been applying  

the  rarest  of  rare  principle,  the  Executive  has  taken  into  

consideration some factors not known to the Courts for converting  

a death sentence to imprisonment for life.  It is imperative, in this  

regard, since we are dealing with the lives of people (both the  

accused and the rape-murder victim) that the Courts lay down a  

jurisprudential basis for awarding the death penalty and when the  

alternative  is  unquestionably  foreclosed  so  that  the  prevailing  

uncertainty is avoided.  Death penalty and its execution should

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not become a matter of uncertainty nor should converting a death  

sentence into imprisonment for life become a matter of chance.  

Perhaps the Law Commission of India can resolve the issue by  

examining whether death penalty is a deterrent punishment or is  

retributive justice or serves an incapacitative goal.  

72. It does prima facie appear that two important organs of the  

State that is the Judiciary and the Executive are treating the life of  

convicts  convicted  of  an  offence  punishable  with  death  with  

different standards.  While the standard applied by the Judiciary is  

that of the rarest of rare principle (however subjective or judge-

centric it may be in its application) the standard applied by the  

Executive  in  granting  commutation  is  not  known.  Therefore,  it  

could happen (and might well  have happened) that  in  a given  

case the Sessions Judge, the High Court and the Supreme Court  

are unanimous in their view in awarding the death penalty to a  

convict,  any  other  option  being  unquestionably  foreclosed,  but  

the Executive has taken a diametrically opposite opinion and has  

commuted  the  death  penalty.  This  may  also  need  to  be  

considered by the Law Commission of India.

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Conclusion:

73. While  agreeing  with  my  learned  Brother  Justice  

Radhakrishnan  that  the  conviction  of  the  appellant  should  be  

upheld, but keeping the above discussion in mind, I endorse the  

direction that all the sentences awarded to the appellant should  

run consecutively.

74. The appeals are disposed of accordingly.

............….……………………..J.        (Madan B. Lokur)

New Delhi;

April  25,  2013