The Hon’ble Supreme Court in a
case decided on 25.04.2013 titled as “Shankar Kisanrao Khade vs. State of Maharashtra” Criminal Appeal Nos. 362-363 of 2010, has set up tests to award
death sentence:
The Supreme Court has held:
“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.”
[Para 28 of Judgement delivered by K.S. Radhakrishnan, J]
“…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.
[Para 38 of Judgement delivered by K.S. Radhakrishnan, J]
Thus following may be noted:
(i) While
awarding death sentence the “crime test”, “criminal test” and the R-R Test to
be satisfied and not “balancing test” [the Court differed with Bachan Singh v.
State of Punjab (1980) 2 SCC 684]
(ii) 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.
(iii) Even, if
both the tests i.e. “crime test”, and “criminal test” are satisfied that is the
aggravating circumstances to the fullest extent and no mitigating circumstances
favouring the accused, still court has 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.
(iv) While
applying R-R 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.
(v) Courts to award
death sentence if situation demands so, due to constitutional compulsion,
reflected by the will of the people and not the will of the judges.
(vi) 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
The court applied the above tests
on the facts of the case and noted the following points:
Enormity of the Crime and execution
thereof (Crime Test)
Victim was
aged 11 years, on the date of the incident, a school going child totally
innocent, defenceless, having moderate intellectual disability, and physically
handicapped and was having moderate mental retardation. Evidence 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.
Doctor, 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
The action of
accused was not only 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.
Criminal
Test
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.
Criminal test
has been fully satisfied against the accused and there is no 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 is not a mitigating circumstance
and the “criminal test” is fully satisfied against the accused.
R-R Test
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”
The Court however commuted the
death sentence by holding that:
“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.”
Court converted the death sentence awarded to the
accused to that of rigorous imprisonment for life and all the sentences awarded
ordered to run consecutively.