By Sudipta Purkayastha, Gujarat National Law University.

An eleven year old girl goes missing in the middle of the day. Forty eight hours later, the strangulated body of the hapless, mentally and physically handicapped child is found in a field. She is found to have been brutally raped. What happened?

In July 2006, the young girl, staying at Gunwant Maharaj Sansthan in Lakhanwadi, was enticed away from her home by a 52 year old man, a father figure that she had perhaps trusted, and his wife. They did not have to threaten her or forcibly abduct her – the lure of mango sweets was quite enough for the unsuspecting child.

Taking the child to their son’s friend’s house, the old man then proceeded to rape the child at night, while everyone else was sleeping. Unfortunately for him, the owner of the house caught him, and evicted them all from his house immediately. Perhaps owing to the fear of being apprehended, or perhaps owing to the child now having become a burden, this vile man then strangulated the girl, leaving her body to be found in a field.

The case, which was first sent to the Judicial Magistrate First Class, where the charge sheet was filed, was later committed to the Court of Sessions. The Sessions Court sentenced Shankar Kisanrao Khade to death under Section 302 of the IPC, subject to confirmation by the High Court.

The High Court dismissed the appeal by the convict, but accepted the reference made by the Sessions Court, thus confirming the death sentence. Khade thus appealed against both the orders in the Supreme Court in 2010, which, after 3 years, made a landmark decision on the issue of death penalty.

The judgment, delivered by Justices K.S. Radhakrishnan and Madan B. Lokur, was a rather surprising one: though there was consensus between the two Judges that the rape and murder had been committed by the Appellant, the Judges declined to uphold the death sentence.

The “Last seen theory”, expounded in State of U.P. v. Satish[1], was both acknowledged and accepted as being satisfied in this case. The theory indicates the culpability of the accused “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”.

As seen from the facts, the victim was, in fact, last seen with the accused, as averred by the owner of the house where the accused had taken the girl, which confirmed that the victim and the accused were “seen together at a point of time in proximity with the time and date of the commission of the offence”.

The Supreme Court, before this judgment, had often awarded capital punishment, where rape and murder had been committed on a minor girl, after striking a balance between the aggravating and mitigating circumstances. According to the Bench, in the present case, the “balancing test” was found to not be the correct test in deciding whether the situation would fall into the ‘rarest of rare’ cases category for the award of death penalty, because the consideration for both were “distinct and unrelated”.

As per Justice Radhakrishnan, while awarding death sentence, the apt tests to be applied were the “crime test”, “criminal test” and the “Rarest of Rare Case test” (R-R Test), instead of the “balancing test”. While the “crime test” referred to the aggravating circumstances, such as the atrociousness and extent of damage to the victim, the “criminal test” referred to the mitigating circumstances which might favour the accused, such as lack of intention to commit the crime, possibility of reformation, young age of the accused and no previous criminal record. Thus, for the death sentence to be awarded, there would, therefore, have to be 100% satisfaction of the “crime test” and a 0% result from the “criminal test”.

However, there would still remain the Rarest of Rare Case Test (R-R Test), which solely depended upon the perception of the society, including the society’s abhorrence, extreme indignation and antipathy to the crime, making the criterion “society centric”, rather than “Judge centric”.

In this case, the enormity of the Crime and execution thereof (Crime Test), the Criminal Test and the R-R Test were all perfectly fulfilled, as seen by the fact that:

  1. The degree of barbarity of the crime was confirmed by the brutal nature of the rape and the murder;
  2. The 52-year old accused was neither a young man who could possibly have been reformed, neither could he have been shown to lack the intention to commit the crimes; and
  3. The very fabric of the Society was befouled by the commission of such a crime.

Yet, the Court went on to flummox the entire nation by declaring that the accused nonetheless did not deserve capital punishment, and commuting the accused’s sentence to that of life imprisonment.

The reason behind this, as given by the Court, was that the High Court had erroneously taken into account the pendency of criminal cases against the accused as an aggravating circumstance, and the basing of the death penalty by the High Court on this particular criterion was found to be unwarranted.

Despite such a confusing stance on the requirements for death penalty, the Court did proceed to highlight certain issues regarding crimes against women that had, theretofore, not been properly addressed. Firstly, the Court called for the Law Commission of India to study the death penalty in India to “allow for an up-to-date and informed discussion and debate on the subject”, by examining whether such penalty is a deterrent punishment, or is retributive justice, or serves an incapacitative goal.

Further, as an auxiliary, the Court discussed the problem of non-reporting the offence of sexual assault, as had occurred in the present case. The Court felt that while penal laws focus on situations after commission of sexual offences against children, the focus should also be on the fact that the witnesses of such crimes often stay silent owing to fears of social stigma, community pressure, and difficulties of navigating the criminal justice system, amongst others. In such cases, it was felt that the “best interest of the child standard” should be applied, not the interest of perpetrator of the crime, making the approach of the society child centric. Accordingly, the Court decided that certain safeguards were to be put into place with regards to the persons who come forward to report such incidents to the police or to the Juvenile Justice Board.

Justice Lokur concluded the judgment by noting that the two important organs of the State, the Judiciary and the Executive, treat the life of convicts convicted for an offence punishable with death, with different standards, as can be seen by last minute quashing of death penalties by the Executive, despite unanimous views by the Sessions Judge, the High Court and the Supreme Court.

Justice Radhakrishnan expressed his concerns regarding the lack of a proper mechanism for ascertaining when a capital punishment can be granted, by drawing the Court’s attention to the case of  Dhananjoy Chatterjee, a 27-year old man who had been executed, amongst great public and media scrutiny, in 2004, for the alleged rape and murder of a 14-year old girl called Hetal Parekh in 1990. The case demonstrated the existence of situations where the factors that must ideally be taken into consideration for commuting the death penalty, were either ignored or not paid heed to, resulting in the death penalty being confirmed. This is what happened in the Chatterjee case, where Dhanonjay’s young age was not taken into consideration or held irrelevant for the purpose of commutation of the death sentence.

The Bench opined that the lives of people, both in the form of the accused, as well as the rape-murder victim, that were being directly impacted by the decisions of the Courts. Thus, there would be an imperative obligation upon the Courts to lay down a jurisprudential grundnorm for awarding the death penalty to the accused, so that the prevailing uncertainty around the basis for granting such punishment is avoided. As per the Bench, “Death penalty and its execution should not become a matter of uncertainty nor should converting a death sentence into imprisonment for life become a matter of chance.”

Today, even 2 years after this judgment, we are yet to have arrived at a conclusive consensus on the death penalty. With the recent hanging of Yakub Memon, the “Rarest of Rare Case Test” needs to be examined in detail to avoid any arbitrary aberrations in the meting out of the capital punishment on convicts.

[1] (2005) 3 SCC 114