SC offers alternative view

New Delhi, Dec. 24: The Supreme Court has commuted to life the death sentence awarded to a man convicted of a barbaric rape and murder, offering an alternative view amid a clamour for the death penalty for rapists following the Delhi bus brutality.

Sainath Kailash Abhang had raped a five months pregnant woman at her Pune home, inflicted on her 19 grievous injuries before leaving her for dead, and chopped off her mother-in-law's wrists and fingers before killing her.

But the two-judge bench cited this "abnormal" behaviour to provide relief, saying the man was drunk and incapable of knowing what he was doing. It invoked the principle "life is the rule and death the exception" and said the possibility of the convict being reformed couldn't be ruled out.

The six accused in the Delhi gang rape too have claimed they were drunk when they committed their crime.

Justices Swatanter Kumar and Madan B. Lokur conceded that Abhang had committed an "inhuman", "heinous" and "brutal" crime but said it did not qualify as a "rarest of the rare" one warranting the noose.

"Absence of normal behaviour even during the commission of the crime is a relevant consideration. It is evident... that the accused was not in a balanced state of mind and... had no control over his mind," the judgment said.

The court made certain observations relating to the death sentence:

It has been settled by the apex court that with (certain) 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'."

The doctrine of rehabilitation and doctrine of prudence "are the other two guiding principles for proper exercise of judicial discretion".

It is not just the crime and its various facets that are relevant to the death sentence but also the criminal himself, especially his background and mental condition.

The judgment came three days before December 16 night's bus rape, which has prompted the government to explore whether it can amend the law to introduce the death penalty for rapists in the "rarest of the rare" cases. On the streets, protesters have been calling for public executions of all rapists.

Some others have said better policing, speedy trials and sensitisation of society are the answer.

A sessions court had awarded death to Abhang and Bombay High Court had upheld the sentence. In the apex court, the defence counsel had confined his arguments to the convict's drunken state and the possibility of his reform considering his age (he was 23 at the time of the August 2007 offence).

The prosecution said Abhang had gained entry into the victims' home posing as an automobile mechanic at a time the pregnant woman's husband was away. He robbed the two women of their jewellery before attacking them.

The court said the prosecution had shown no evidence that Abhang was a hardened criminal who could not be reformed, nor that his conduct in jail was unworthy of any concession.

It added that the convict had entered the apartment to rob and not to kill, though, eventually, he did both rape and kill.


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