LexSHANKAR KISANRAO KHADE versus STATE OF MAHARASHTRA
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[2013] 6 S.C.R. 949 SHANKAR KISANRAO KHADE v. STATE OF MAHARASHTRA (Criminal Appeal No. 362-363 of 2010) APRIL 25, 2013 [K.S. RADHAKRISHNAN AND MADAN B. LOKUR, JJ.) Penal Code, 1860 - ss. 302, 376, 366-A, 363 rlw. s. 34 - Rape and murder of minor and intellectually challenged girl A B - By the accused aged about 52 years - Conviction and death c sentence by courts below - Held: In view of the evidence of · the case, guilt of the accused proved beyond reasonable doubt - Conviction upheld - However, sentence of death reduced to life imprisonment - All other sentences awarded, directed to run consecutively. o Evidence - Circumstantial evidence - Standard of proof - Held: Circumstances relied upon, must be fully established and chain of the circumstances must be complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. E F Crime Against Children - Sexual assault - On minor children - Held: It is the duty of the State to protect the children from all forms of sexual exploitation and abuse - It is a/so duty of evel)' citizen to report the act of assault or abuse on a minor child to the police or Juvenile Justice Board - While dealing with an issue of child abuse, approach of the court should be child centric - Proper and sufficient safeguards a/so need to be provided to persons who come forward to report such incidents - Supreme Court as a parens patriae, gave G certain directions to the State authorities, to educational institutions, medical institutions and homes wherever children are housed, to media, hotels, lodge, clubs, studios for protection of children from sexual abuse - Further directed 949 H 950 SUPREME COURT REPORTS [2013] 6 S.C.R. A that non-reporting of such crime would be a serious crime - Constitution of India, 1950 - Articles 15(3) and 39 - United Nations Convention on the Rights of Children - Articles 3(2) and 34 - Protection of Children from Sexual Offences Act, 2012. B Sentence/Sentencing: Death sentence - Award of - Held: While awarding death sentence, the courts should apply 'crime test', 'criminal test' and 'rarest if rare test' - 'Crime test' has to be fully satisfied c i.e. 100%, 'criminal test' i.e. no mitigating circumstance favouring the accused should be 0% - 'Rarest of rare test' should be 'society centric' and not Judge centric'. Death sentence - Award of - By treating pendency of criminal case against the accused as aggravating D circumstance - Propriety of - Held: Pendency of criminal cases as such is not aggravating circumstance unless the accused is found guilty and convicted in those cases. Death sentence - Rarest of Rare case principle - E Applicability of - Held: Per Madan Lokur, J. - The principle of rarest of rare cases is based on comparative evaluation of the case with other cases - Due to lack of empirical data for making two fold comparison, the application of the rarest of rare principle becomes extremely delicate, thereby making F the awarding of death sentence subjective or judge-centric - While converting the death sentence to life imprisonment, the judiciary applies the rarest of rare principle and the executive applies the factors not known to the courts - Since the two important organs of the State treat the life convicts with different G standards, it is imperative that courts lay down jurisprudential basis for awarding the death penalty - Death penalty and its execution should not become matter of uncertainty - Law Commission of India should examine whether death penalty is a deterrent punishment or is retributive justice or seNes an H SHANKAR KISANRAO KHADE v. STATE OF 951 MAHARASHTRA incapacitative goal - Code of Criminal Procedure, 1973 - s. A 432 - Constitution of India, 1950 - Arts. 72 and 161. Death sentence - Commutation of - Need to record reasons for commuting the sentence - Held: Per Madan Lokur, J. - Normal rule is awarding life sentence and reasons B are required to be recorded while awarding death sentence - Therefore, courts not required to record reasons for commuting death sentence to life imprisonment. Appellant-accused No.1 and his wife accused No.2 were charged for the offences punishable u/ss. 363, 366- C A, 376, 302, 201 r/w s. 34 IPC, for having, in furtherance of their common intention, kidnapped a minor girl with intellectual disability and then accused No.1 committed rape on her several times and com
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