Case: Shankar Kisanrao Khade Vs. State of Maharashtra

K.S. Radhakrishnan, J. 1. We are in these appeals concerned with a gruesome murder of a minor girl with intellectual disability (moderate) after subjecting her to series of acts of rape by a middle ager, who has now been sentenced to death by the High Court of Bombay. 2. Appellant, Shankar Kisanrao Khade (Accused No.1) and his present wife Mala Shankar Khade (Accused No.2) were charge sheeted, for the offences punishable under Sections 363, 366-A, 376, 302, 201 read with Section 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 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 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 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) 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 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. 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 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. 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. (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 4th 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. 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. 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 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. 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. (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 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. 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, 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 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: ?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 systems 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 societys 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.? 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. 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 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 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 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 societys 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 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 or a person vis- -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] 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 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 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. 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 ] 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] 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 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. 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. 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. 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 preordained 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 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 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. 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. 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 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. 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 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, 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 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 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 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 agegroup 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% (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 HeadYEAR% Variation in 2011 over 2010 123456 3.Rape5,3685,484711230 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: ?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. 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 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 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: 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 subsection (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. 55. I

Decision reasoning: 0[ds]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 doubtIn 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 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 judges37. 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 sentence38. 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 sentence39. 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 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 IPC52. 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 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 disability53. 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: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 subsection (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 death54. 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.