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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 23rd, 24th and 25th  

March, 2011 awarding death penalty to the present appellant.

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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 31st August, 2007.  Jaydeep Patil, PW8 was serving in the  

ICICI Bank.  The incident took place on 10th September, 2007  

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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 3rd 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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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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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  5th 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  

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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 18th September, 2007 and she was discharged on 28th  

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 11th 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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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  10th 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,  

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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 :

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“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.   

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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  

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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  

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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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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  

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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  

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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  

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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  

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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  

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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  

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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).    

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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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……...…………......................J.    (Swatanter Kumar)

……...…………......................J.                                    (Madan B. Lokur)

New Delhi, December 13, 2012.

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