Facts & Issues of Shankar Kisanrao Khade vs State of Maharashtra, Dated: 25 April 2013:
In July 2006, a young eleven-year-old girl, staying at Gunwant Maharaj Sansthan in Lakhanwadi, was allured away from her home by a 52-year-old man by his wife, who had a father figure by which that she had trusted. They did not threaten her or forcibly abduct her – the lure of mango sweets was quite enough for the child, who didn't suspect them. (Since then, she goes missing).

Taking the child to their son's friend's house, the old man then proceeded to rape the child at night, while everyone was sleeping. But, the owner of the house caught him, and expelled them all from his house. Mayhap owing to the fear of being apprehended, or haply owing to the child who have now become a burden, this repulsive old man then strangulated the girl, leaving her body in a field. It was came in lite that the appellant committed rape repeatedly before committing murder. The doctor who has performed a postmortem came at the conclusion that the girl was murder by strangulation hence, the doctor came at the conclusion that the death was caused due to asphyxia.

(The strangulated brutally raped body of this star-crossed child was found in the field after 48 hours, since she had gone missing).

As seen from the facts, the victim was last seen with the accused, as professed 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 only question that now remains to be decided is whether this case falls in the category of rarest of rare cases, justifying capital punishment.

Case number & Year: Criminal Appeal Nos. 362-363 OF 2010
Name of parties:
Shankar Kisanrao Khade (Appellant) v/s. State of Maharashtra (Respondent)

Lawyer's Name:
Shri A.K. Talesera: counsel for the accused
Ms. Aprajita Singh: counsel for the state

Name of Judge(s): Hon'ble Mr. justice K.S. Radhakrishnan, Hon'ble Mr. Justice Madan B. Lokur

Case Citations:
Appellant (accused) relied on these following judgments of the hon'ble supreme court

1. Bachan Singh v. State of Punjab (1980) 2 SCC 684
2. Mohd. Chaman vs. State (NCT of Delhi) (2001) 2 SCC 28
3. Surendra Pal Shivbalakpal vs. State of Gujarat (2005) 3 SCC127
4. State of Maharashtra v. Mansingh (2005) 3 SCC 131
5. State of Rajasthan v. Kashi Ram (2006) 12 SCC

The prosecution relied on the following judgments of the hon'ble supreme court

1. Gurmukh Singh v. State of Haryana (2009) 15 SCC 635
2. Mohd. Farooq Abdul Gafur and others. v.State of Maharashtra (2010) 14 SCC 641
3. Sushil Murmu v. State of Jharkhand (2004) 2 SC 338
4. Shivu and another v. Registrar General, High Court of Karnataka and another (2007) 4 SCC 713,
5. B.A. Umesh v. Registrar General, High Court of Karnataka (2011) 3 SCC 85,
6. Mohd. Mannan Alias Abdul Mannan v. State of Bihar (2011) 5 SCC 317
7. Sebastian v. State of Kerala (2010) 1 SCC 58,
8. Aloke Nath Dutta and others v. State of West Bengal (2007) 12 SCC 230
9. Swamy Shraddananda Alias Murali Manohar Mishra v. State of Karnataka (2007)12 SCC 288.

Judgment:
These appeal concern with rape and murder committed by a middle ager for which he has been sentence to death by the hon'ble high court of Bombay. the short story of the case is that one 11 years minor girl was living with her grandmother in the evening of 20/07/2006. The appellant offered mango sweets and in the morning of 21/07/2006. He also offered sweets for attract her. The appellant took away the girl towards puja dhuni . It was revealed that the appellant committed rape on her and after committing murder, threw the dead body with a view to disappear the evidence of commission of murder. FIR was lodged against the appellant and his wife Who were last seen with the deceased 18 witnesses were examined by the prosecution to support the prosecution case after hearing the party the learned sessions judge convicted the appellant and his wife under section 363, 366A, 377, 302, 201 read with section 34 of IPC.

The learned session judge found the case rarest of rare and sentenced the appellant to death under section 302 of IPC and also sentence him undergo for life with fine.

The appellant file appeal before the high court of Bombay. After hearing the appellant and respondent the appeal was dismiss and the judgement of learned session judge was upheld. The wife of appellant did not file any appeal against the order of session judge because of he had already suffered the punishment awarded to her.

The appellant preferred the criminal appeal before the Hon'ble supreme court which was numbered as criminal appeal number 362 and 363. One of the appeal was preferred against the conviction and sentence and another against the confirmation of death sentence passed by session judge.

The honorable supreme court heard both sides mainly on the following points:

• whether last seen theory was successfully established by the prosecution beyond all reasonable doubt?
• Whether this case false in the category of rarest of rare cases justifying capital punishment?

After hearing both the party, perusal of record including oral and documentary evidences the court comes to the conclusion that undoubtedly the accused has committed the crime. The standard of prove required to convict a person on a circumstantial evidence is well established by a series of judgements of the hon'ble supreme court Considering the entire fact and circumstances of the case hon'ble Mr. justice K.S Radhakrishnan says that 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. The hon'ble justice Madan B Lokur agreed with the view of hon'ble justice K.S. Radhakrishnan accordingly the appeals were dispose of.

Personal Opinion:
The present to appeals where file by appellant shankarkisanrao khade against the judgement an order passed by session judges which where uphold by the honorable high court Mumbai vide criminal appeal number 362/10 and 363/10 0f both the appeals were file separately. One was filled against the confirmation of death sentence and another was filled against the conviction and sentence.

The short fact of the prosecution is that one eleven year's minor girl was kidnapped by the appellant Shankar kisanrao khade and his wife. Thereafter Shankar kisanrao khade committed rape and after committing murder threw the dead body which was recover later on and FIR was lodged because of the deceased girl was last seen with the appellant.

After investigation police submitted charge sheet against appellant and his wife. Charges were framed against the appellant and his wife and explained to them which they not pleaded guilty and claimed to be tried.

The prosecution examined 18 prosecution witnesses to prove its case before the learned session judge. The prosecution also produced documents which were marked exhibits. The prosecution proved the case and the learned session judge found the appellant and his wife guilty.

From a perusal of the judgement and order passed by the learned session judge it appears that the learnt court found that it is a case of circumstantial evidence based on last seen theory. Undoubtedly it is settled principal of law the deceased and accused were last seen together and after some time it was found that the deceased was found dead then the it is presumed that the accused the guilty. But in a case of circumstantial evidence there should be evidence which showed the chains are linked. In the presence case from the evidence of prosecution witnesses the court reached at the conclusion that the prosecution has proved its case beyond reasonable doubts.

The learned session judge convicted both the accused persons (appellant Shankar Kisanrao and his wife) and sentenced appellant 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 thousand in default to suffer rigorous imprisonment for offence under section 376 IPC, further seven year RI and to pay a fine of Rs.500 in default to suffer RI for three month under section 366A IPC and five years RI and to pay a fine of Rs.500 in default to suffer RI for 1 month for offence punishable under section 363 IPC raid with section 34 IPC.

The second accused (w/o appellant) was convicted for the offence punishable under section 366A raid 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 learned session judge came to a conclusion that this case false in the category of Rarest of rare cases hence, capital punishment will justify it.

The appellant prefers criminal appeal number 512 of 2007 before the high court and the court heard the appeal along with confirmation case number of 2007.

The high court dismissed the appeal and reference made by the session courts was accepted and the death sentenced was confirmed. The appellant prefers these two appeals against those orders passed by the high courts.

The honorable supreme court scrutinize the oral evidences along with the evidence of investigating officer and medical evidence.

The Honorable Mr. Justice k.s. Radhakrishnan says in Para 18 of his judgment:
"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".

 According to him the only question that now remains to be decided is whether this case false in the category of rarest of rare case, justifying capital punishment.

Appellant and prosecution relied upon a catena of decisions of honorable supreme court. The honorable justice has also discussed those judgements in their judgment. However, the honorable Supreme Court come to a conclusion that this case does not come in the category of rarest of rare cases. And considering the entire facts and circumstances of the case they converted death sentence awarded to the accused to rigorous imprisonment and that all the sentences awarded will run consecutively.

In my opinion the prosecution has fully established the case beyond all reasonable doubts against the appellant and his wife the last seen theory was fully proved and all the chains where link to established the case of circumstantial evidence. Of course, in my opinion the case does not falls under the category of rarest of rare justifying capital punishment. Hence, the judgement and order passed by the two courts was modified.