SANDESH ALIAS SAINATH KAILASH ABHANGversusSTATE OF MAHARASHTRA

                   (2012) 13 S.C.R. 1049


      SANDESH ALIAS SAINATH KAILASH ABHANG                       A
                              v.
                STATE OF MAHARASHTRA
            (Criminal Appeal No. 1973 of 2011)
                   DECEMBER 13, 2012
                                                                 B
  [SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]

      Penal Code, 1860 - ss. 302, 307, 394 and 376 (e) -
Robbery with murder, attempt to cause death, causing hurt
and committing rape of pregnant woman - Injured eye-witness C
- Extra-judicial confession - Conviction by courts below and
death sentence - On appeal, accused not challenging the
conviction, but seeking to commute the death sentence -
Held: The evidence established the prosecution case beyond
reasonable doubt - The accused committed cold-blooded D
murder and his conduct was that of a brutal person -
 Therefore, his conviction is confirmed - However, the courts
below failed to consider the state of mind of the accused at
the relevant time, in its correct perspective, his capacity to
realize the consequences of crime and lack of intent to E
commit murdef"- Accused was under influence of alcohol at
the relevant time -The manner in which he assaulted reflects
the conduct of an abnormal person - There is also no
evidence to show that he was a hardened criminal and there
was no possibility of his being reformed - His case does not F
fall in the category of the rarest of the rare case - Death
sentence commuted to rigorous imprisonment for life - The
life imprisonment shall be for life and sentences to run
consecutively.

     Sentence/Sentencing - Death sentence - Award of -           G
Principles to be followed - Held: It is not only crime and its
various facets which is foundation for formation of special
reasons as contemplated u/s. 354(3) Cr.P.C. for imposing

                            1049                                 H
    1050    SUPREME COURT REPORTS              [2012] 13 S.C.R.


A death sentence, but the criminal, his background, his mental
    condition at the relevant time, manner of commission of
    crime, motive and brutality are also to be examined -
    Doctrine of rehabilitation and doctrine of prudence are also
    the guiding principles - Code of Criminal Procedure, 1973 -
8   s. 354 (3).

        Doctrines - 'Doctrine of rehabilitation' and 'Doctrine of
    prudence' - In the context of award of death sentence -
    Applicability.

C      The appellant-accused was prosecuted ulss. 302,
  307, 397, 394 and 376 (e) IPC, uls. 25 of Arms Act and ul
  s. 135 of Bombay Police Act. The prosecution case was
  that he entered the house of PW2 and the deceased in
  the guise of a mechanic, looted the valuables of the
D house, assaulted them. He inflicted 21 injuries on the old
  woman which resulted in her death. He inflicted 19
  injuries on PW2 (who was 5 months pregnant) and also
  committed rape on her. He made extra-judicial
  confession to PW-13.
E
       Trial court convicted him under provisions of IPC for
  which he was charged. The court finding the case falling
  in the category of the rarest of rare cases, awarded death
  sentence alongwith other sentences. High Court
  confirmed the conviction as well as the sentence
F awarded by the trial court.

      In appeal to this court, appellant stated that he did
  not wish to challenge the conviction, and contended that
  his case did not fall in the category of the rarest of rare
G cases and hence death sentence was not correct.
         Partly allowing the appeal, the Court
       HELD: 1. The prosecution evidence, particularly the
  statements of PW1, PW2, PW3, PW4, PW7, PW8 and PW13
H clearly establish that the accused had entered the house
 SANDESHALIAS SAINATH KAILASHABHANG v. STATE 1051
              OF MAHARASHTRA

of the deceased and PW2, with an intention to commit A
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 B
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 c
months pregnant. Ultimately, he gave the last fatal blow
with the kukri (the weapon he was 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 D
possible for her in order to survive and protect the child
in her womb from any harm. The appellant committed a
cold-blooded murder and his conduct was that of a brutal
person. According to the statement of PW13, he had
murdered both the ladies, which shows that he came out E
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. [Paras 12 and 13] [1061-E-H; 1062-A-
C]
                                                               F
     2.1 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 a/ia, consider the           G
following points. 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          H
    1052   SUPREME COURT REPORTS            [2012] 13 S.C.R.


A 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
B 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 the accused
  would be a menace or an irreformable anti-social element
  to the society. [Paras 16 and 17] [1063-F-H; 1064-A-B]
C      2.2 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) Cr.P.C., which places a mandate upon the
D 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,
E 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. [Para 18]"
  [1064-C-E]
F     2.3 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) Cr.P.C. for
  imposing death penalty, but it Is also the criminal, his
  background, the manner In which the crime was
G committed and his mental condition at the relevant 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
H discretion. [Para 21] [1065-F-H]
 SANDESH ALIAS SAi NATH KAI LASH ABHANG v. STATE 1053
               OF MAHARASHTRA
     2.4 The Trial Court has recorded reasons for A.
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.
However, the trial court as well as the High Court has not B
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 c
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 0
the deceased and PW2, but also committed rape .on PW2.
[Para 19 and 20) (1064-F-H; 1065-A·B]
     2.5 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. E
According to PW2, he smelled of alcohol and his eyes
were red.     Both these factors show that the accused
might have been drunk and he might not exactly be aware
of the consequences of his acts. This view finds
support from the fact that if the accused had Intended to F
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 vltal parts of
their body and put them to death. His conduct in Inflicting
large number of injuries and even amputating the fingers G
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 H
    1054    SUPREME COURT REPORTS             [2012] 13 S.C.R.

A 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. [Para 21)
B (1065-B-F]
        2.6 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
C 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 rare cases. The
D appeal is partially allowed and the death sentence is
  commuted to that of rigorous imprisonment for life. The
  life imprisonment shall be for life and the sentences shall
  run consecutively. [Paras 24 and 25) [1066-E-HJ

E        Rameshbhai Chandubhai Rathod v. State of Gujarat
    (2011) 2 SCC764: 2011 (1) SCR 829 ; Amit v. State of Uttar
    Pradesh (2012) 4SCC 107; Sebastian @ Chevithiyan v.
    State of Kera/a (2010) 1 SCC 58 - relied on.

       Mohd. Chaman v. State (NCT of Delhi) (2001) 2 SCC
F 28; RajeshKumar v. State through Government of NCT Delhi
  (2011) 13 SCC706; Rajendra Prah/adrao Wasnik v. State of
  Maharasthra (2012) 4 SCC 37; Jagmohan singh v. State of
  U.P. (1973) 1 SCC 20: 1973 (2) SCR 541; Sangeet and Anr.
  v. State of Haryana 2012 (11) SCALE 140 - referred to.
G
                       Case Law Reference:
        2011 (1) SCR 829          Relied on          Para 12
        (2001) 2 sec 28           Referred to        Para 13
H
 SANDESH ALIAS SAi NATH KAI LASH ABHANG v. STATE 1055
    OF MAHARASHTRA [SWATANTER KUMAR, J.]

     (201 O) 1 sec 58            Relied on           Para 13      A
     (2011) 13 sec 10s           Referred to         Para 13

     2011 (1) SCR 829            Referred to         Para 13

     (2012) 4 sec 37             Referred to         Para 14
                                                                  B
     1973 (2) SCR 541            Referred to         Para 15

     2012 (11) SCALE140          Referred to         Para 15

    CRIMINAL APPEELLATE JURISDICTION : Criminal
Appeal No. 1973 of 2011.                                          c
    From the Judgment & Order dated 23/24/25.03.2011 of
the High Court of Judicature of Bombay in Crl. Confirmation
Case No. 1 of 2010 with Criminal Appeal No. 7 of 2011.
                                                                  D
     Mithilesh Kumar Singh, Taru Verma for the Appellant.

    Sanjay V. Kharde, P. Surshe, Asha Gopalan Nair for the
Respondent.

    The Judgment of the Court was delivered by                    E
     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.                  F

     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          G
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.
                                                                  H
    1056     SUPREME COURT REPORTS                [2012] 13 S.C.R.


         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.

B       4. The complaint was lodged by Sumitra Ramesh Birajdar,
  PW1, maternal aunt of PW2, who was resident of Flat No.D-
  202, Purple Castle Society, Bibwewadi, Pune. She stated that
  deceased Shalini Uddahaurao Jadhav was her close relative.
  PW2 and her husband Jaydeep Patil, PW8, along with the
c deceased (their grandmother) were living in the same building
  since 31st August, 2007. Jaydeep Patil, PW8 was serving in
  the ICICI Bank. The incident took place on 10th September,
  2007 when the complainant was at her house. At about 9.45
  a.m., the deceased had come to her house while she was
D 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
E the window to the complainant addressing as 'mami mamt'.
  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
F 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
G 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 been slit. Blood was lying '
  everywhere in the flat. The complainant, without any loss of time,
H
 SANDESH ALIAS SAINATH KAI LASH ABHANG v. STATE 1057
    OF MAHARASHTRA [SWATANTER KUMAR, J.]

gave a call to Jaydeep Patil, PW8, on his mobile and narrated A
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 B
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           c
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 .
                                                                   0
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 demanded the ornaments on
the person of the deceased. He also snatched the Mangalsutra E
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, F
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 r;ieck which
ultimately resulted in her death. When he demanded more cash G
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 H
    1058    SUPREME COURT REPORTS                [2012] 13 S.C.R.


A 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 screamed
  for her mami (PW1), the complainant. PW2, according to her
  statement, moved with great difficulty to unbolt the door from
B 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
C 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
D   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
E   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 information that the suspect was residing at upper Indira
    Nagar area. When the Police party went there and made
F   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
G   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
H the accused, recovery of the articles, viz., the gold ornaments,
 SANDESH ALIAS SAi NATH KAILASH ABHANG v. STATE 1059
    OF MAHARASHTRA [SWATANTER KUMAR, J.]

mobile phone, clothes of the accused as well as the weapon          A
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      B
charged with the offences punishable under Sections 302, 307,
397, 394, 376(e) of the Indian Penal Code, 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. C
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 Saban 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 D
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 E
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 F
awarded the punishment as follows :

      "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     G
            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       H
    1060        SUPREME COURT REPORTS              [2012] 13 S.C.R.


A                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
B
                 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
c                l)entenced 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
D                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
E                Section 135 of Bombay Police Act and under
                 Section 25 of Arms Act.

           7)    All the Jail sentences to run concurrently.

           8)    Accused is in jail since 19.09.2007. He is entitled
F
                 for set off.
           9)    The seized gold ornaments and mobile handset be
                 returned to PW after the period of appeal will be
                 over.
G
           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
H                sentence."
 SANDESHALIAS SAi NATH KAILASH ABHANG v. STATE 1061
    OF MAHARASHTRA [SWATANTER KUMAR, J.]

       10. The appellant challenged the correctness of the            A
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          B
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           C
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 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         D
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                      E
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          F
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               G
committed rape on her while she was five months pregnant.
Ultimately, he gave the last fatal blow with the kukri (the weapon
he was 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         H
    1062    SUPREME COURT REPORTS                [2012] 13 S.C.R.


A 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
8
    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
C   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
D   does not fall in the category of a rarest of rare case. He also
    submitted that the prosecution has led no evidence to show 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)
E   2 SCC 28]; Sebastian @ Chevithiyan v. State of Kera/a
    [(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].
F
        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
G 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
H Maharasthra [(2012) 4 SCC 37].
    SANDESH ALIAS SAi NATH KAI LASH ABHANG v. STATE 1063
       OF MAHARASHTRA [SWATANTER KUMAR, J.]

       15. First and foremost, we must notice the authoritative      A
  statement by a Constitution Bench of this Court in the case of
  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         B
  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 ~riminal. Some reservations were expressed       c
  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
                                                                     0
  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        E
  ingredients relating to a criminal as well as the attendant
  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           F
  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     G
   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
                                                                     H
    1064    SUPREME COURT REPORTS                 [2012] 13 S.C.R.


A 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
B corollary to this the Court would have to determine whether 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
C 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
D 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
E 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
F treated the victims with utmost disregard, both physically and
  mentally. Rape of a pregnant lady by the accused was totally
  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.
G      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
H entered the house of PW2 with the intention to kill either of them.
   SANDESH ALIAS SAi NATH KAI LASH ABHANG v. STATE 1065
      OF MAHARASHTRA [SWATANTER KUMAR, J.]

  In fact, and indisputably, he entered the house of the deceased    A·
' 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        8
 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
 exactly be aware of the consequences of his acts. This view         G
 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   D
 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         E
 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       F
 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 time, the motive of the    G
 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             H
    1066    SUPREME COURT REPORTS                  [2012] 13 S.C.R.


A   relied upori 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
B 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
C 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).
D       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
E 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
F 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 not
  one of the rarest of rare cases.
G
        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.
H K.K.T.                                      Appeal partly allowed. ·