DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

ACADEMIC SESSION: 2014-15

CRIMINAL LAW-I : FINAL DRAFT

“CASE ANALYSIS : Sandesh Alias Sainath Kailash Abhang v.
State of Maharashtra 2013 (2) SCC 479”

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 TABLE OF CONTENTS

INTRODUCTION ................................................................................................ 3

STATEMENT OF FACTS ................................................................................... 4

ISSUE(S) INVOLVED ......................................................................................... 5

LAW ON THE POINT ......................................................................................... 5

DECISION OF THE COURT .............................................................................. 5

PRINCIPLE OF LAW LAID DOWN: THE RATIO ............................................ 5

CASE ANALYSIS ................................................................................................ 6

LATER DEVELOPMENTS ............................................................................... 11

CONCLUSION ................................................................................................... 13

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 INTRODUCTION
It is trite that death sentence can be inflicted only in a case which comes within the category
of rarest of rare cases but there is no hard-and-fast rule and parameter to decide this vexed
issue. The Court had the occasion to consider the cases which can be termed as the rarest of
rare cases and although certain comprehensive guidelines have been laid to adjudge this issue
but no hard-and-fast formula of universal application has been laid down in this regard.
Crimes are committed in so different and distinct circumstances that it is impossible to lay
down comprehensive guidelines to decide this issue. Nevertheless it is widely accepted that in
deciding this question the number of persons killed is not decisive.

Further, crime being brutal and heinous itself does not turn the scale towards the death
sentence. When the crime is committed in a extremely brutal, grotesque, diabolical, or
revolting manner so as to arouse intense and extreme indignation of the community and when
collective conscience of the community is petrified, one has to lean towards death sentence.
But this is not the end. If these factors are present, the court has to see as to whether the
accused is a menace to the society and would continue to be so, threatening its peaceful and
harmonious coexistence. The court has to further enquire and believe that the accused
condemned cannot be reformed or rehabilitated and shall continue with the criminal acts. In
this way, a balance sheet is to be prepared while considering the imposition of penalty of
death of aggravating and mitigating circumstances and a just balance is to be struck. So long
the death sentence is provided in the statute and when collective conscience of the
community is petrified, it is expected that the holders of judicial power do not unnecessarily
introduce their personal opinion and inflict death penalty. These are the broad guidelines
which the Honourable Supreme Court has laid down over the years for imposition of the
death penalty.

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 STATEMENT OF FACTS
Shubhada Jaydeep Patil and Jaydeep Patil were married on 07.02.2007 and Mr. Jaydeep was
employed with a private bank at its branch in Bibwewadi area of Pune city. On 31.08.2007,
the couple shifted to flat no. 301 of Purple Castle Society, Chintamaninagar, Bibwewadi,
Pune as tenant and just below their flat, the maternal aunt of Shubhada Jaydeep Patil, Sumitra
Ramesh Birajdar was staying with her family in flat no. 202. On 10.09.2007, Mr. Jaydeep
came home for lunch and left the house at 1:30 p.m. His grandmother Shalini Jadhav was also
staying with them. Around 02:00 p.m., when the grandmother was watching TV, she heard
doorbell and therefore, opened the door of the flat. The accused told her that Saheb had sent
him for repairing of car puncture. The grandmother being unware of this assignment, she
called Shubhada Patil to talk to the accused. When Shubhada came, the accused repeated the
same assignment. She informed that she had no such knowledge and he could come in the
evening by which time her husband would be at home. As a matter of precaution, she also
called her husband on cellphone but he did not respond. By this time the accused entered into
the flat, bolted the door from inside and took out a deadly weapon (Kukri) and threatened the
ladies. Naturally, there was some resistance and on this the accused started giving blows,
which resulted in large number of bleeding injuries on the person of both the ladies. He
demanded ornaments on the person of the grandmother. He snatched “Mangalsutra” from
Shubhada and also a gold chain but did not stop the assaults.

Shubhada Patil was in her fifth month of pregnancy and therefore, tried her best to see that
she would not receive any assault on her stomach. The accused further demanded to search
out jewellery and cash in the house, which was his main object. Mrs. Shubhada then threw
before him a purse containing gold ornaments. He collected them but at this stage when the
grandmother made little movement, he gave a fatal blow on her neck. When he demanded
more cash and jewellery, Mrs. Shubhada offered him to search the entire house and take
away what he wanted. Upon this, the accused became more aggressive and asked her to
remove her clothes and committed rape on her under the threat of further assault. Even
thereafter, he kept inflicting blows on her. He then went to the bathroom, cleaned himself and
fled from the flat and bolted the door from outside.

After having realised that the grandmother was not alive, Shubhada Patil managed to crawl
upto the second bedroom so as to give call to the maternal aunt in the flat below.
Consequently, when the maternal aunt came to the main door of the flat, she crawled upto the

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 main door and opened it after which her husband arrived, the police were alerted, and she was
taken to Bharati Vidyapeeth Hospital.

ISSUE(S) INVOLVED
Whether or not the imposition of death penalty is justified in the facts of the present case?

LAW ON THE POINT

1. Imprisonment or death for crime under Section 302 of IPC for murder.
2. Imprisonment or death for crime under Section 376(2)(e) of IPC for rape of pregnant lady.
3. Imprisonment for crime under Section 397 of IPC for dacoity or robbery with attempt to
cause death or grievous hurt.
4. Imprisonment for crime under Section 394 of IPC for voluntarily causing hurt in committing
robbery.
5. Imprisonment for crime under Section 307 of IPC for attempt to murder.
6. Section 85 and 86 of IPC relating to intoxication.

DECISION OF THE COURT

It was held that the case did not fall within the category of rarest of rare cases. The
appellant’s appeal was partially allowed by the Hon’ble Court and the death sentence was
commuted to that of rigorous imprisonment for life.

PRINCIPLE OF LAW LAID DOWN: THE RATIO

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) CrPC for imposing the death penalty,
but it is also the criminal, his background, manner in which the crime was committed and his
mental condition at the relevant time, motive of offence and brutality with which the crime
was committed, which are also to be examined. The doctrine of rehabilitation and doctrine of
prudence are the other two guiding principles.

Possibility of the accused being reformed, he being young (appellant was 23 years of age)
and having no criminal involvement in similar crimes are relevant considerations in the
present case. In the instant case, trial Court as well as the High Court did not consider, in its
correct perspective, the state of mind of the accused at the relevant time, his capacity to
realise the consequences of the crime he was committing and the lack of intent on his part to

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commit the murder. The accused had not entered the house of the victims 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, a cell
phone, money, etc. In the process, he not only repeatedly injured the deceased and PW2
(Shubhada Jaydeep Patil), but also committed rape on PW2. 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. Absence of normal behaviour even during the
commission of the crime is a relevant consideration. Also, in the present case, the
Prosecution has 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. Though the crime
committed by the accused was one of heinous and brutal nature, other relevant considerations
outweighed it for the Court to dismiss the appeal.

CASE ANALYSIS
The Trial Court and the High Court were right in calling the present case as the “rarest of rare
cases” and imposing the death penalty. Any other sentence was not justified considering the
totality of circumstances which were proved by the prosecution before the High Court. In the
case of Machhi Singh and Others v. State Of Punjab1 the Supreme Court had held that a
balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing
so the mitigating circumstances have to be accorded full weightage and a just balance has to
be struck between the aggravating and the mitigating circumstances before the option is
exercised. The Apex Court in the instant case has terribly failed to strike this reasonable
balance between the two.
Two mitigating circumstances have been considered by the Supreme Court in this case which
outweigh the series of aggravating circumstances present: the intoxicated state of the accused
and his possibility of reformation.

The vital factor as regarded by the Court, to commute the death sentence into that of life
imprisonment, is the fact that the accused was “smelling of alcohol” and that his “eyes were
red”, meaning thereby the intoxicated state of the accused. As per para 21 of the judgement,
the trial court and the High Court had not considered, in its correct perspective, the state of

1
AIR 1983 SC 957.

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mind of the accused at the relevant time, his capacity to realise the consequences of the crime
he was committing and the lack of intent on his part to commit the murder. It should be noted
that this is not a case which was based on the circumstantial evidence. Mrs. Shubhada Patil
was an eye witness to the murderous attack on her grandmother-in-law as well as herself. The
circumstances may also go to believe that the accused was hungry of blood like a beast as
observed by the High Court in para 34 of its judgement. The accused was in his senses
enough to commit rape on the helpless lady inspite of the bleeding injuries sustained by her
and though a dead body was lying in the room which was full of blood. After committing
such acts, the accused showed an unusual calm in washing himself and the weapon before
leaving and thereafter, bolting the door from outside, which clearly reflects as to what degree
was he incapable of realising what he was doing and what would be the consequences.

Moreover, the Indian Penal Code has provisions for intoxication as a defence only when the
intoxicant was administered to the accused ‘without his knowledge’ or ‘against his will’. The
section 85 and 86 of the Indian Penal Code state:

“85. Act of a person incapable of judgment by reason of intoxication caused against

his will. - Nothing is an offence which is done by a person who, at the time of doing
it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he
is doing is either wrong, or contrary to law; provided that the thing which intoxicated
him was administered to him without his knowledge or against his will.”

“86. Offence requiring a particular intent or knowledge committed by one who is

intoxicated. – In cases where an act done is not an offence unless done with a
particular knowledge or intent, a person who does the act in a state of intoxication
shall be liable to be dealt with as if he had the same knowledge as he would have had
if he had not been intoxicated, unless the thing which intoxicated him was
administered to him without his knowledge or against his will.”

Thus, one can make a plea of intoxication as a defence for the crime he/she has committed
only when such intoxication is not voluntary. A voluntary intoxication can only be of any use
to the accused if it is of such degree so much as to make him/her incapable of knowing the
nature of a particular act he commits or that Moreover, the Defense also must prove that the
intoxication was to such an extent that the accused was incapable of knowing the nature of
the act, or what he was doing was wrong or contrary to law. As per Para 7 of the judgment:-

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“7. 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 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.”
Thus, the manner in which the accused acted during the entire time period while he was in
that flat leaves no sort of doubt in inferring that he was capable enough to think rationally and
that he was conscious of whatever he was doing. He carried out all the acts in his senses and
hence, the presence of mens rea cannot at all be denied as has been done by the Supreme
Court. Hence, intoxication is not at all fit to be treated as a mitigating circumstance in the
present case. The take of the Supreme Court in this point is flawed. This is by no means, a
case of ‘against the will’ or ‘without knowledge’ intoxication. Moreover, intoxication can
only be a defense when the level of intoxication is so high as to take away from the accused
his capability to form some intent and distinguish between right and wrong for that matter.

Next loophole that can be pointed out is evident in Para 21 wherein the Court has observed
that the accused had not entered the house of PW2 with the intention to kill either of them.
He had come there to commit robbery which he committed, and in the process, not only
repeatedly injured the deceased and PW2, but also committed rape on PW2. The Supreme
Court has erred in considering that a criminal intent, enough as to make one entitled to a
death sentence for a crime demanding so, is needed to be formed well before one reaches the
scene of crime. Is it so that premeditation to such extent is a “mandate” to prove the presence
of mens rea? The fact that the accused had entered the flat with the motive of committing
only robbery should not negate his liability for any acts done by him thereafter.

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The evidence of PW-13 (Rajendra Sawant) and a childhood friend of the accused also proved
before the High Court and trial court that the accused did not have any remorse or repentance
of what he had done on 10/09/2007 but he proudly told him that he cut two ladies (human
beings) and therefore, he was not scared of anyone. As observed by the Supreme Court in
Para 16 of the judgement:- “The appellant committed a cold-blooded murder and his conduct
was that of a brutal person. According to the statement of PW 13, Rajendra Sawant, he had
murdered both the ladies which shows that he came out of the house thinking that both, the
deceased and PW 2, had died.” Thus, the question which arises is that is not the brutal
manner in which the crime was committed and seemingly so, the accused being in his senses
enough so as to realise what he was doing, sufficient to establish the presence of mens rea?

In the final reasoning offered by the Supreme Court for its decision, in Para 25, it has
considered the possibility of the accused being reformed, he being young and having no
criminal involvement in similar crimes. The Court has failed to consider the background
details in inferring so. The accused had studied upto 12th standard, had left his village about
three years back from the date of commission of crime, was staying at Pune and was working
as Mechanic. In his statement recorded under Section 313 of Cr. P. C., he stated that he
owned 12 acres of irrigated agricultural land and was financially sound.
As against this, if the circumstances of the incident are considered, it is clear that the weapon
which he used was especially procured and it is not available with any mechanic. In the
opinion of the High Court, the weapon was deadlier than even a butcher’s knife and the
intention in procuring this weapon also speaks of the character of the accused and leads to an
inference that he was not intending to stop at one robbery. (Para 34)
Though, in the earlier case filed against the accused and arising from Cr. No. 226/2006 for
the offence punishable under Section 379 of the Indian Penal Code, he had been acquitted, it
is not sufficient a circumstance to interfere with the death sentence, keeping in mind the
aggravating factors as well. The sentence of the accused cannot be reduced merely on the
plea of clean antecedents or on flimsy grounds as those of reformation in crimes like these.
There have been judgements where the accused were first offenders but were awarded death
for the acts they had committed, like Dhananjoy Chatterjee v. State of West Bengal (1994)2
SCC 220 (case of rape coupled with murder) and Mohammed Ajmal Mohammad Amir Kasab
@Abu Mujahid v. State of Maharashtra (2012) 9 SCC 1.
In Para 22 of its judgement, the Supreme Court has made an observation as to the “conduct of
an abnormal person” shown by the accused which according to the Court is a “relevant

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consideration” in support of its decision to commute the death sentence into that of life
imprisonment in the present case. The Court observed that:
“...if the accused had intended to kill deceased and PW 2, it was not expected of him to inflict
21 and 19 injuries 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 behavior even during the commission of the crime is a
relevant consideration.”(Para 22)
This is a perfect instance of wrongful deduction by the Apex Court of the country. Firstly,
you cannot give the ‘brutality’ with which a crime is committed the shape of ‘abnormality in
behavior’ and moreover, make it act as a defense for the same brutal act. In fact, it is so
ironical how the factors which should have been treated as the aggravating circumstances in
the case have been put under the veil of mitigating circumstances. Secondly, the judgement
further states that the evidence on record had proven that the accused had not been in a
“balanced state of mind” and “in fact had no control over his mind.” Again, it is ironical how
the accused acted all ‘normal’ and to have been in a ‘balanced state of mind’ when it came to
procuring what he wanted, cleaning himself and fleeing away from the place. That he was in
his senses during the commission of the crime has already been argued upon.
What remains to say is that the aggravating circumstances in the present case, which include
the brutal murder of the old lady and the assault and rape committed on a five-month
pregnant woman in their home, rape being committed even when the lady had surrendered
and offered to search the entire house and take away whatever the accused had wanted and
also the way the accused acted in the entire scene including how he cleaned himself and
bolted the door from outside while leaving, overweighed the mitigating circumstances. In
fact, there were hardly any mitigating circumstances. Capital punishment is indeed justified
in crimes as heinous as these. From the facts it is clear that the accused had already planned
the robbery. He was ready with even the weapon (kukri) in the face of any resistance. But the
way in which the old lady was killed and PW 2 raped was totally unwarranted and is a clear
proof of the guilt of the accused. The Supreme Court should have regarded this case as one
among the rarest of rare cases which would have been fair to meet the ends of justice.

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 LATER DEVELOPMENTS
In a different case decided by the Honourable Supreme Court at a later date, State of
Rajasthan v. Jamil Khan2, the question of the case being rarest of rare again came up with
somewhat similar factors as we have in our present case under study. This case involved a
heinous rape of a minor(five year old girl) followed by murder. Mitigating factors to be
considered were young age (nineteen years), poverty and voluntary intoxication of the
accused. It was held that aggravating factors qua crime and mitigating factors qua criminal
should be properly balanced to decide whether offence of murder would fall under the rarest
of rare category to be visited with death penalty.

The major mitigating factor as far as respondent in this case is concerned is that he was
young. However, relying upon the principle established over the years through various
precedents, that the accused being young by itself is not a major and deciding factor while
considering the mitigating factors, the Court, in view of the overwhelming and aggravating
circumstances, declined to consider the mitigating factor of young age.

That the accused was under the influence of alcohol at the time of the commission of the
offence also was also held not to be a mitigating factor. The Court observed that: “It is not a
case where somebody had forcefully administered intoxicating drinks or drugs to the
respondent and made him commit the offence. That he had taken alcoholic drinks at around
10.00 a.m. is also an indicator to the premeditation of the crime shortly thereafter. Thus,
having regard to the nature of the crime, the manner in which it was committed and above
all, having regard to the major aggravating factor of extreme repulsion which has shocked
the collective conscience of the community and the Court, as also the sole mitigating factor of
his young age, we are of the opinion that punishment of life imprisonment is grossly
inadequate.” (Para 18)

Another one is the case of Bhagwan Tukaram Dange v. State of Maharashtra3, in which the
wife was set on fire by her husband and father-in-law, both being fully drunk, on her refusal
to give them the money that they were demanding. First she was severely beaten up and
asked to bring the money from her parental house and then, her father-in-law had sprinkled
kerosene from a plastic can over her, after which her husband had lit a matchstick and set her

2
(2013) 10 SCC 721: (2014) 1 SCC (Cri) 411.
3
(2014) 4 SCC 270.

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on fire. She had suffered more than 80% burns over her body due to which she ultimately
died in the Civil Hospital but was successful in giving her dying declaration. On the question
of intoxication acting as a mitigating factor, the Court observed that: “Assuming that the
accused was fully drunk, he was fully conscious of the fact that if kerosene is poured and a
match-stick lit and put on the body, a person might die due to burns. A fully drunk person is
also sometimes aware of the consequences of his action. It cannot, therefore, be said that
since the accused was fully drunk and under the influence of liquor, he had no intention to
cause death of the deceased-wife.” (Para 11)

It was held that: Intoxication, as such, is not a defence to a criminal charge. At times, it
can be considered to be a mitigating circumstance if the accused is not a habitual
drinker, otherwise, it has to be considered as an aggravating circumstance. (Para 12) The
Court relied upon the case of Bablu alias Mubarik Hussain v. State of Rajasthan (2006) 13
SCC 116, wherein this Court held that the defence of drunkenness can be availed of only
when intoxication produces such a condition as the accused loses the requisite intention for
the offence and onus of proof about reason of intoxication, due to which the accused had
become incapable of having particular knowledge in forming the particular intention, is on
the accused. Examining Section 85 IPC, this Court held that the evidence of drunkenness
which renders the accused incapable of forming the specific intent essential to constitute
the crime should be taken into account with the other facts proved in order to
determine whether or not he had the intention. Court held that merely establishing that his
mind was affected by drink so that he more readily gave way to some violent passion, does
not rebut the presumption that a man intends the natural consequences of his acts. This Court,
in that case, rejected the plea of drunkenness after noticing that the crime committed was a
brutal and diabolic act.

In the Bhagwan Tukaram case, the court found it difficult to accept the contention of the
counsel that since the accused-Appellant was under the influence of liquor, the offence will
fall under Section 304 Part I or Section 304 Part II. A-1(husband) was presumed to know the
consequences of his action, of having lit the match stick and set fire on the saree of deceased,
after A-2(father-in-law) sprinkled kerosene on her body. Thus it was held that the accused
was correctly charge-sheeted under Section 302 IPC and there was no reason to interfere with
the conviction and sentence awarded by the trial court and affirmed by the High Court.

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 CONCLUSION
It is neither possible nor permissible to define or lay down any straitjacket formula which can
universally be applied to all cases requiring the court’s determination in relation to imposition
of death penalty. The Court has in itself, thus taken very divergent views on the point. It is to
be determined on the basis of the facts and circumstances which are case-specific. The case
under study should have been adjudged to have fallen under the category of rarest of rare
cases. The Supreme Court was faulty in its judgement. The logic used by the Court to come
to the conclusion that the accused was not in a “balanced state of mind” and that there had
been “absence of normal behaviour” goes beyond comprehension. What is even more
egregious is the so called “vital factor”, which provides the main rationale of the Court to
declare this not to be the rarest of rare case, and which in the view of the Court was totally
disregarded by the High Court and the trial court, was that the accused was smelling of
alcohol and his eyes were red, which was testified by the victim herself (PW 2). It has some
negative implications. This would dissuade the victims in any such cases in future to provide
the correct and full account of the circumstances prevailing during the commission of the
crime due to the fear of testifying something which could go against them.

Indeed the judgement has set a bad precedent. The later developments on the point clearly
state the law on the point that the evidence of drunkenness which renders the accused
incapable of forming the specific intent essential to constitute the crime should be taken into
account with the other facts proved in order to determine whether or not he had the intention.
Court held that merely establishing that his mind was affected by drink so that he more
readily gave way to some violent passion, does not rebut the presumption that a man intends
the natural consequences of his acts.

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