Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEELLATE JURISDICTION

CRIMINAL APPEAL NO.1973 OF 2011

Sandesh Alias Sainath Kailash Abhang ...

Appellant

Versus

State of Maharashtra ... Respondent

J U D G M E N T

Swatanter Kumar, J.

1.The present appeal is directed against the judgment of

conviction and order of sentence passed by a Division Bench of

the High Court of Judicature at Bombay dated 23

rd

, 24

th

and 25

th

March, 2011 awarding death penalty to the present appellant.

Page 2 2.The learned counsel appearing for the appellant, the sole

accused, at the very outset stated that the appellant does not

wish to challenge the order of conviction but is only contending

that the present case does not fall under the category of ‘rarest

of the rare’ case where penalty of death could be imposed upon

the accused. Thus, the controversy in the present appeal

before this Court falls within a narrow compass.

3.In order to examine the sustainability of the submission

raised on behalf of the appellant, it is necessary for the Court to

refer in brief to the case of the prosecution and the evidence on

record.

4.The complaint was lodged by Sumitra Ramesh Birajdar,

PW1, maternal aunt of Shubhada Jaydeep Patil, PW2, who was

resident of Flat No.D-202, Purple Castle Society,

Chintamaninagar, Bibwewadi, Pune. She stated that deceased

Shalini Uddahaurao Jadhav was her close relative. PW2 and her

husband Jaydeep Patil, PW8, along with the deceased (their

grandmother) were living in the same building in Flat No.301

since 31

st

August, 2007. Jaydeep Patil, PW8 was serving in the

ICICI Bank. The incident took place on 10

th

September, 2007

2

Page 3 when the complainant was at her house. At about 9.45 a.m.,

the deceased had come to her house while she was going to

temple. The deceased was at the house of the complainant till

about 11.30 a.m. when she left saying that she had to arrange

her baggage as she wanted to go to Pandharpur. Both the

complainant and PW2 were at their respective flats. At about

3.30 p.m., PW2 gave a call through the window to the

complainant addressing as ‘mami mami’. Hearing the sound,

the complainant sent her maid servant Chingu to see as to why

PW2 was calling for her. The maid servant went to the gallery

of her flat and told the complainant that she saw that blood was

smeared on the face of PW2. Immediately the complainant

rushed to the flat of PW2, which was on the 3

rd

floor and noticed

that the door was bolted from outside. She opened the door

from outside and PW2 opened the door from inside. PW2 was

seen completely naked and there was blood all over her body.

The complainant helped PW2 to wear the clothes to cover

herself up. Thereafter, the complainant went inside the bed

room, she saw the deceased, mother-in-law of PW2, lying in a

pool of blood. The wrist of her left hand and four fingers of her

right hand were mercilessly amputated. Her neck had also

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Page 4 been slit. Blood was lying everywhere in the flat. The

complainant, without any loss of time, gave a call to Jaydeep

Patil, PW8, on his mobile and narrated the condition of the

house. She also gave a call to her husband. Within 15 to 20

minutes, PW8 reached the house. He shifted his wife, PW2 in a

car. They proceeded towards Bharati Vidyapeeth Hospital. On

the way, PW2 disclosed to the complainant that at about 2.00

to 2.15 p.m. one young boy came to her flat. The door was

opened by her mother-in-law, the deceased. The young boy

said that he was a mechanic and was sent by sahib (Jaydeep

Patil) to repair the car on which PW2 told him that their car was

not out of order and asked the young boy to go back. When

she tried to contact her husband on mobile phone, the said

young boy snatched away the mobile from her. He closed the

door of the flat from inside. Thereupon the accused started

assaulting both, PW2 and her mother-in-law, the deceased with

a sickle like weapon. They tried to resist his act. At that time,

he inflicted blows on the hands of the deceased by the weapon

after which she fell down. Further, the case of the prosecution

is that the said young man assaulted the deceased a number of

times and while she was on the ground and the accused

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Page 5 demanded the ornaments on the person of the deceased. He

also snatched the Mangalsutra from PW2 and her gold chain

but did not stop the assault.

5.PW2 was in her 5

th

month of pregnancy and, therefore,

tried her best to avoid any injury on her stomach and, in fact,

suffered all the injuries on her back. The accused further

demanded for jewellery and cash that was lying in the house,

which probably was his main object. PW2 threw the purse

containing gold ornaments in front of him. He collected them

but at this stage when the deceased made some movement on

the floor, he gave her another fatal blow on the neck which

ultimately resulted in her death. When he demanded more

cash and jewellery, PW2 even offered him to search the entire

house and take away what he wanted and requested him to

spare them. Upon this, the accused became more aggressive

and asked PW2 to remove her clothes and committed rape on

her under the threat of further assault. Even thereafter, he

kept inflicting blows on PW2. He then went to the bathroom,

cleaned himself and fled from the flat and bolted the door from

outside. PW2 crawled to the bedroom and from there she

5

Page 6 screamed for her mami (PW1), the complainant. PW2,

according to her statement, moved with great difficulty to

unbolt the door from inside when the complainant and her maid

servant had come.

6.The complainant called up PW8. Police was also informed

and it reached the spot. When PW2 was taken to Bharti

Vidyapeeth Hospital, they advised to refer her to Ruby Hall

Clinic and, thus, PW2 was shifted to that clinic at about 5.30

p.m., where she was operated upon immediately and was in the

ICU upto 18

th

September, 2007 and she was discharged on 28

th

September, 2007.

7.Having received the information from PW1, the

complainant, Police had commenced its investigation. The

Police brought the dog squad as well as photographer, PW11, to

the place of offence. On 11

th

September, 2007, the police even

went to get information from PW2 in the hospital. On the basis

of the description given by her, PW12, Girish Anant Charwad,

had prepared the sketch of the accused which was widely

circulated including publication in the local newspapers. PW16,

Ashok Shelke, the Inspector from the Crime Branch got an

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Page 7 information that the suspect was residing at upper Indira Nagar

area. When the Police party went there and made inquiries,

the suspect was not traced. The Police traced the native place

of the accused, Awasari Khurd in Ambegaon Taluka and found

that his name was Sandesh Kailas Abhang. In furtherance to

the information received, the accused was arrested from his

house in Awasari Khurd Village and was taken into custody.

8.The inquest panchnama of the body of the deceased,

Shalini Jadhav, was drawn as Exhibit 45 on 10

th

September,

2007. The post mortem report, Exhibit 40, was prepared and

signed by PW7, Dr. Milind Sharad Wable. After the arrest of the

accused, recovery of the articles, viz., the gold ornaments,

mobile phone, clothes of the accused as well as the weapon

used, was effected. The articles recovered were sent for

chemical analysis and report thereof is filed on record. The

Investigating Officer, after recording the statement of

witnesses and collecting other evidence, filed the charge-sheet,

Exhibit 4, before the Court of competent jurisdiction. The

accused was charged with the offences punishable under

Sections 302, 307, 397, 394, 376(e) of the Indian Penal Code,

7

Page 8 1860 (for short, the ‘IPC’), Section 25 of the Arms Act and

Section 135 of the Bombay Police Act.

9.The prosecution examined as many as 18 witnesses. It

may be noticed at this stage that the Trial Court has dealt with

the extra-judicial confession made by the accused to his friend,

Rajendra Baban Sawant, PW13, at great length and found that

his statement Exhibit 59 recorded under Section 164 of the

Code of Criminal Procedure, 1973 (for short, the ‘Code’) fully

corroborated the case of the prosecution. However, there was

no reason for PW13 to make any false statement or for the Trial

Court to disbelieve the same. The Trial Court by a very detailed

judgment held the accused guilty for offences punishable under

Sections 302, 307, 394, 397 and 376(e) IPC. It heard the

accused on the quantum of sentence as well as referred to the

judgment of this Court in the case of Bachan Singh v. State of

Punjab [(1980) 2 SCC 684]. After analysing the principles

enunciated in that case, the Trial Court came to the conclusion

that the case fell in the category of the rarest of rare cases and

awarded the punishment as follows :

8

Page 9 “1)Accused Sandesh alias Sainath Kailas

Abhang is found guilty for the offence

punishable under Sections 302, 307,

376(e), 394, 397 of Indian Penal Code.

2)Accused is convicted for offence

punishable under Section 302 of Indian

Penal Code and he is sentenced to

death. Accused shall be hanged by

neck till he is dead. Death sentence

shall not be executed unless it is

confirmed by the Hon’ble High Court.

3)Accused is convicted for offence

punishable under Section 307 of Indian

Penal Code and he is sentenced to

suffer R.I. for 10 years and to pay a

fine of Rs.5000/- in default to suffer

R.I. for six months.

4)Accused is convicted for offence

punishable under Section 376(e) of

Indian Penal Code and he is sentenced

to suffer imprisonment for life and to

pay a fine of Rs.5000/- in default to

suffer R.I. for six months.

5)Accused is convicted for offence

punishable under Section 394 read

with Section 397 of Indian Penal Code

and he is sentenced to suffer

imprisonment for life and to pay a fine

of Rs.5000/- in default to suffer R.I. for

six months.

6)Accused is acquitted for offence

punishable under Section 135 of

Bombay Police Act and under Section

25 of Arms Act.

7)All the Jail sentences to run

concurrently.

9

Page 10 8)Accused is in jail since 19.09.2007. He

is entitled for set off.

9)The seized gold ornaments and mobile

handset be returned to PW Shubhada

Patil after the period of appeal will be

over.

10)Remaining articles being valueless be

destroyed after the period of appeal

will be over.

11)Record and proceedings be sent

immediately to the Hon’ble High Court

for confirmation of the death

sentence.”

10.The appellant challenged the correctness of the judgment

of conviction and order of sentence before the High Court by

filing a Regular Criminal Appeal being Criminal Appeal No.7 of

2011. Along with this, the Criminal Confirmation Case No.1 of

2010 for confirmation or otherwise of death sentence was listed

before the High Court. The High Court by a detailed judgment

confirmed the death sentence as well as dismissed the appeal

filed by the accused, giving rise to filing of the present appeal.

11.As already noticed, we are only concerned with the

question, whether imposition of death penalty is justified in the

facts of the present case or not. Though in view of the

statement made by the learned counsel appearing for the

10

Page 11 appellant, there is hardly any occasion for us to discuss the

prosecution evidence in any greater detail, still it is necessary

for the Court to examine the intent of the accused, the manner

in which the crime was committed, the impact of such crime

upon the society and finally the possibility of the accused being

reformed.

12.The prosecution evidence, particularly the statements of

PW1, PW2, PW3, PW4, PW7, PW8 and PW13 clearly establish

that the accused had entered the house of the deceased and

PW2 with an intention to commit robbery and was smelling of

alcohol. However, he committed the crime in a very brutal

manner. He did not heed to the request of PW2 to take away

all the ornaments and money that were available in their house

and to spare the life of both of them. According to the

prosecution evidence, he did not accede to that request and

even after taking the gold kept on inflicting injuries upon the

deceased as well as PW2. The worst assault of the accused

was that he asked PW2 to remove her clothes and committed

rape on her while she was five months pregnant. Ultimately, he

gave the last fatal blow with the kukri (the weapon he was

11

Page 12 carrying) on the neck of the deceased resulting in her

immediate death. PW2 displayed wisdom and bravery and

received the injuries on her back. She resisted the attack to

the extent it was possible for her in order to survive and protect

the child in her womb from any harm.

13.The appellant committed a cold blooded murder and his

conduct was that of a brutal person. According to the

statement of PW13, Rajendra Sawant, he had murdered both

the ladies which shows that he came out of the house thinking

that both, the deceased and PW2, had died. To her good

fortune, PW2 survived and was able to establish the case of the

prosecution beyond reasonable doubt. The learned counsel

appearing for the appellant argued that the accused was under

the influence of liquor and was unmindful of the consequences

of his crime. He did not commit the crime with any

premeditation, was arrested nine days after the date of

occurrence, is a young person of 23 years of age are the

mitigating circumstances, and that certainly the present case

does not fall in the category of a rarest of rare case. He also

submitted that the prosecution has led no evidence to show

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Page 13 that the deceased is incapable of being reformed. In support of

his contention, he has relied upon various judgments of this

Court in the cases of Mohd. Chaman v. State (NCT of Delhi)

[(2001) 2 SCC 28]; Sebastian @ Chevithiyan v. State of Kerala

[(2010) 1 SCC 58]; Rameshbhai Chandubhai Rathod v. State of

Gujarat [(2011) 2 SCC 764]; Rajesh Kumar v. State through

Government of NCT Delhi [(2011) 13 SCC 706]; and Amit v.

State of Uttar Pradesh [(2012) 4 SCC 107].

14.On the contrary, the contention on behalf of the State is

that it was a brutal murder of an innocent lady and is a case

where direct evidence (eye-witness – PW2) has clearly stated

the barbaric manner in which the offence was committed. The

accused showed no respect for human life as he inflicted 21

injuries upon the deceased and 19 injuries upon PW2. He

assaulted two helpless ladies and that too for a small gain. The

counsel for the State placed reliance on the judgment of this

Court in the case of Rajendra Prahladrao Wasnik v. State of

Maharasthra [(2012) 4 SCC 37].

15.First and foremost, we must notice the authoritative

statement by a Constitution Bench of this Court in the case of

13

Page 14 Bachan Singh (supra), where the Court discussed the entire law

in relation to sentencing with a definite reference to the

imposition of death penalty and took a somewhat divergent

view than was taken in the case of Jagmohan Singh v. State of

U.P. [(1973) 1 SCC 20]. Keeping in view the change in

legislative policy and various pronouncements of this Court, the

Constitution Bench made a shift in approach from an entirely

crime based approach to an approach that focused on both, the

crime and the criminal. Some reservations were expressed by

the Bench in regard to the opinion expressed in the case of

Jagmohan (supra). The Courts, within the ambit of Section

354(3) of the Code of Criminal Procedure, were recording

reasons with reference to mitigating and aggravating

circumstances. However, a Bench of this Court in the case of

Sangeet & Anr. v. State of Haryana [2012 (11) SCALE 140] took

a view that such approach needed a fresh look, in view of the

principles stated in the case of Bachan Singh (supra).

16.The paradigm shift in the criminal jurisprudence would not

substantially alter the substance of the approach since

ingredients relating to a criminal as well as the attendant

14

Page 15 circumstances of a crime will have to be considered in all

events. The Court would have to consider each case on its own

merits. It is neither possible nor permissible to define or lay

down any straightjacket formula which can universally be

applied to all cases requiring Court’s determination in relation

to imposition of death penalty. The Court, however, should,

inter alia, consider the following points.

17.First of all, the Court has to keep in mind that the

prosecution has been able to prove its case beyond reasonable

doubt and the accused is guilty of the offence where prescribed

punishment is that of death. Secondly, the Court has to

examine the cumulative effect of the prosecution evidence and

the stand of the accused. This would include discussion on the

manner in which the crime was committed, the intent and

motive of the accused, situation and mental condition of the

accused at the relevant time, attendant circumstances relating

to the commission of offence and the possibility of the accused

being reformed if permitted to join the mainstream society. As

a corollary to this the Court would have to determine whether

15

Page 16 the accused would be a menace or an irreformable anti-social

element to the society.

18.Consideration of these aspects should automatically result

in recording of special reasons where the Court is of the opinion

that penalty of death should be imposed which is in line with

the provisions of Section 354(3) which places a mandate upon

the Court to apply its judicious mind and record ‘special

reasons’ for imposing death penalty. It has been settled by this

Court that with the legislative changes, the principle ‘death is

the rule and life an exception’, where it was so provided under

the Code of Criminal Procedure, has shifted to ‘life is the rule

and death an exception’. It is only when exceptional penalty of

death is sought to be imposed by the Court that the Court is

expected to record special reasons, satisfying the above

criteria.

19.The Trial Court has recorded reasons for awarding the

sentence of death to the accused. These reasons elucidate

how brutally the offence was committed and that the accused

treated the victims with utmost disregard, both physically and

mentally. Rape of a pregnant lady by the accused was totally

16

Page 17 inhuman and unwarranted. The learned counsel for the

appellant has not been able to dispute these reasons or the fact

that they are matters of serious concern.

20.However, the Trial Court as well as the High Court has not

considered, in its correct perspective, the state of mind of the

accused at the relevant time, his capacity to realize the

consequences of the crime he was committing and the lack of

intent on his part to commit the murder. The accused had not

entered the house of PW2 with the intention to kill either of

them. In fact, and indisputably, he entered the house of the

deceased with the mind of committing robbery which he

committed by taking away the gold ornaments, cell phone and

money etc. However, in this process, he not only repeatedly

injured the deceased and PW2, but also committed rape on

PW2.

21.One very vital factor which has not been given any

significance by the Courts in the impugned judgments is that

the accused was smelling of alcohol. According to PW2, he

smelled of alcohol and his eyes were red. Both these factors

show that the accused may have been drunk and he may not

17

Page 18 exactly be aware of the consequences of his acts. This view

finds support from the fact that if the accused had intended to

kill deceased and PW2, it was not expected of him to inflict 21

and 19 injures on their bodies respectively. He could have

simply given an injury on the vital parts of their body and put

them to death. His conduct in inflicting large number of

injuries and even amputating the fingers of the deceased

clearly reflects the conduct of an abnormal person. Absence of

normal behaviour even during the commission of the crime is a

relevant consideration. It is evident from the evidence on

record that the accused was not in a balanced state of mind

and in fact had no control over his mind. He was unable to

decipher the consequences of his crime and the result that is

likely to flow from such commission. In the facts and

circumstances of the case, the Court cannot ignore such an

abnormal behaviour of the accused. As already noticed, it is

not only the crime and its various facets which are the

foundation for formation of special reasons as contemplated

under Section 354(3) of Cr.P.C. for imposing death penalty but

it is also the criminal, his background, the manner in which the

crime was committed and his mental condition at the relevant

18

Page 19 time, the motive of the offence and brutality with which the

crime was committed are also to be examined. The doctrine of

rehabilitation and doctrine of prudence are the other two

guiding principles for proper exercise of judicial discretion.

22.Now, we may refer to some cases that have been relied

upon by the learned counsel appearing for the appellant.

23.In the case of Rameshbhai Chandubhai Rathod (supra),

the Court while dealing with a case of rape and murder of a

child by the watchman, commuted the death sentence to that

of imprisonment for life, directing it to be of full life on the

ground that it did not fall in the category of rarest of rare cases,

because the accused was young person of 27 years and there

was possibility of his rehabilitation. Even in the case of Amit

(supra), this Court after taking into consideration the fact that

there was a possibility of the accused being reformed and he

not being involved in similar crimes earlier, commuted the

death sentence to life imprisonment in a case of kidnapping,

rape, commission of unnatural offence, murder and even

causing disappearance of evidence. Similar approach was also

adopted by this Court in the case of Sebastian (supra).

19

Page 20 24.We have already noticed that it is not possible to lay down

as a principle of law as to in which cases the death penalty

should or should not be imposed. The above judgments are on

their own facts, but one aspect that certainly is stated in these

judgments is the possibility of the accused being reformed, he

being young and having no criminal involvement in similar

crimes are relevant considerations. In the present case the

prosecution had led no evidence to show that the appellant was

a hardened criminal and there was no possibility of his being

reformed. There is also no evidence to show that during the

time when he was in jail, his conduct was unworthy of any

concession. It is a heinous and brutal crime that the accused

has committed, but other relevant considerations outweigh it

for the Court to state that the present case is one that of rarest

of the rarest of rare cases.

25.For the reasons afore-stated, we partially allow the appeal

of the appellant and commute the death sentence to that of

rigorous imprisonment for life. The life imprisonment shall be

for life and the sentences shall run consecutively.

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Page 21 ……...…………......................J.

(Swatanter Kumar)

……...…………......................J.

(Madan B. Lokur)

New Delhi,

December 13, 2012.

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