Case: Shankar Kisanrao Khade Vs. State of Maharashtra

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 22.7.20064. 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 25.07.20065. 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 Sessions6. 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.

Reasoning: 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.