Supreme Court of India
SUSHIL SHARMAversusTHE STATE OF N.C.T. OF DELHI
- Citation
- 2013 INSC 690
- Decided
- 8 October 2013
- Disposal
- Disposed off
- Bench
- P SATHASIVAM
Holding
The Supreme Court upheld the conviction for murder and conspiracy under sections 302 and 201 read with 120‑B, but commuted the death sentence to life imprisonment.
Summary
The appellant, Sushil Sharma, was convicted of murdering his wife Naina Sahni and conspiring with an employee, A2, to burn her body in the tandoor of his restaurant. The prosecution proved the murder and the disposal of the body through a chain of circumstantial evidence, forensic analysis, and the recovery of the appellant's .32 Arminius revolver and related ammunition. The Supreme Court affirmed the conviction under IPC sections 302 and 201 read with 120‑B, finding the evidence sufficient to establish guilt beyond reasonable doubt. The Court then examined whether the death sentence imposed by the trial and High Courts was justified, considering mitigating factors such as the appellant's lack of prior criminal record, emotional disturbance, long time already spent in a death cell, and the possibility of rehabilitation. Applying the principles from Bachan Singh and subsequent cases, the Court held that the brutality of the crime did not warrant capital punishment and commuted the death sentence to life imprisonment, subject to remission under CrPC sections 432 and 433‑A. The appeal was disposed of, confirming the conviction but altering the sentence.
Issues considered
- The adequacy of the circumstantial and forensic evidence to sustain convictions under IPC sections 302, 120‑B and 201.
- Whether the appellant's alibi defense was proven and its impact on the conviction.
- The propriety of the death sentence in light of mitigating circumstances and established jurisprudence on the 'rarest of rare' doctrine.
- The admissibility and reliability of forensic, medical, and procedural evidence presented during trial.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 27, s. 313, s. 366, s. 41A, s. 432, s. 433-A
- Indian Evidence Act, 1872s. 27
- Indian Penal Code, 1860s. 120-B, s. 201, s. 302
Subjects
murdercircumstantial evidencedeath penaltycommutationlife imprisonmentforensic evidenceconspiracyalibifirearm possessionpost‑mortemboard of doctorsmitigating circumstances
Judgment
[2013] 16 S.C.R. 616
A SUSHIL SHARMA
v.
THE STATE OF N.C.T. OF DELHI
(Criminal Appeal No.693 of 2007)
OCTOBER 8, 2013
B
[P. SATHASIVAM,CJI AND RANJANA PRAKASH DESAI
AND RANJAN GOGOi, JJ.]
Penal Code, 1860- s.302 and s.120-B rlw s.201 - Naina
C Sahni murder case - Prosecution case that appellant killed
his wife since he was suspecting that she was having some
relationship with PW-12 and a/so because appellant did not
want to make his marriage with the deceased public while the
deceased was insisting on the same - Further case of the
D prosecution that after killing her, the appellant with the help
of A2 burnt her dead body in the tandoor of the Bar-be-Que
restaurant owned by the appellant - Conviction of appellant
uls.302 and s.120-B r/w s.201 and of A2 uls.120-B r/w s.201
- Justification - Held: The prosecution successfully proved
E beyond reasonable doubt number of incriminating
circumstances against the accused - Chain of circumstances
complete and unerringly pointed to the guilt of appellant -
Established circumstances capable of giving rise to inference
inconsistent with any other hypothesis except the guilt of
F appellant - Prosecution, therefore, proved that the appellant
alone committed the murder of deceased in the flat where they
were staying together and then conspired with A2 to do away
with the dead body of the deceased so as to cause
disappearance of the evidence of murder - At the instance
of appellant, A2 burnt the dead body in the tandoor -
G Appellant, therefore, rightly convicted uls.302 /PC and u/s.201
rlw s.120-B /PC - A2 rightly cqnvicted uls.201 rlw s.120-B.
Sentence I Sentencing - Appropriate sentence -
H 616
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 617
Mitigating circumsfances - Appreciation of_- Murder- Naina A
Sahni murder case - Appellant convicted by Courts below for
murdering his wife and for thereafter burning the dead body
in the tandoor of the Bar-be-Que restaurant owned by him -
Death sentence awarded by Trial Court and confirmed by the
High Court - Propriety - Held: Appellant suspected the B
fidelity of deceased and the murder was the result of this
possessiveness - When appellant was taken to the Mortuary
and the dead body was shown to him, he started weeping -
He was therefore not remorseless - Medical evidence did not
establish that the dead body was cut - No recovery of any c
weapon like chopper which could suggest that appellant had
cut the dead body - Murder was the outcome of stFained
personal relationship - It was not an offence against the
Society - Appellant had no criminal antecedents - No
evidence led by the State to indicate that he was likely to
0
revert to such crimes in future - Appellant was the only son
of hiS.f.J§~ents, who were old and infirm - Appellant already
spent more than 10 years in death cell - The offence was
brutal but brutality alone would not justify death sentence in
this case - Death sentence commuted to 'life imprisonment
in view of the mitigating circumstances - Life sentence for the E
whole of remaining life subject to remission granted.by the
appropriate Government u/s. 432 CrPC, which, in turn, subject
to procedural checks mentioned in the said provision and
further substantive checks in s.433-A CrPC - Penal Code,
1860 - s.302 and s.120-B rlw s.201 - Code of Criminal F
Procedure, 1973 - ss.432 and 433A.
The prosecution case was that in the night
intervening 2/7/1995 and 3/7/1995, the appellant killed his
wife since he was suspecting that she was having some G
relationship with PW-12 and also because appellant also
did not w<1nt to make his marriage with the deceased
public while the deceased was insisting on the same.
The further case of the prosecution was that after killing
her, the appellant with the help of A2 burnt her dead body H
618 SUPREME COURT REPORTS (2013] 16 S.C.R.
A in the tandoor of the Bagia Bar-be-Que restaurant owned
by the appellant. The trial court convicted the appellant
u/s. 302 IPC and also u/s.120-8 r/w s.201 IPC and
sentenced him to death. A2 was convicted u/s. 120-8 r/w
s. 201 IPC. Three other accused- A3, A4 and A5, who were
B tried u/s. 212 IPC, were acquitted. The High Court
confirmed the conviction and the death sentence
awarded to the appellant.
In the instant appeal, the questions for consideration
C before this Court were whether the conviction of
appellant was correct and whether the death sentence
awarded by the trial Court and confirmed by the High
Court was justified.
Disposing of the appeal, the Court
D
HELD:1.1. In the instant case, the prosecution
successfully proved beyond reasonable doubt the
following circumstances: (a) the appellant and the
deceased were married and they were staying together;
E (b)the relations between the appellant and the deceased
were strained. The appellant was suspecting the fidelity
of the deceased. The deceased wanted to make their
marriage public which the appellant was not willing to do.
There was, thus, a strong motive to murder; (c) the
appellant and the deceased were last seen together in the
F evening of 2/7/1995 in the said flat; (d) on 2/7/1995, at
about 11.00 p.m. there was a fire in Bagia Restaurant and
the appellant was seen at around 10.15 p.m. at the Bagia
Restaurant in his Maruti Car bearing No.DL-2CA-1872; (e)
A2, who was an employee of the Bagia Restaur<1nt owned
G by the appellant, was seen shuffling the wood in the
tandoor with a wooden stick and he was apprehended at
the spot in the night intervening 2/7/1995 and 3/7/1995;
(f) charred corpse found in the tandoor was identified to
be that of the deceased; (g) on 4/7/1995, certain blood
H stained articles were recovered from the said flat where
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 619
the appellant and the deceased were staying together; (h) A
on 4/7/1995, Car No.DL-2CA-1872 was found abandoned
at Malcha Marg and the dicky of the car was found to
contain dry blood; (i) on 5/7/1995, five empty cartridges,
one lead bullet, a ply with bullet hole and an air pistol were
recovered from the flat where the appellant and the 8
deceased were staying together; (j)from the evening of
2-3/7/1995, the appellant was on the run till he was
arrested by the Bangalore Police at Bangalore on 10/07/
1995. On 11/07/1995, the appellant was handed over to the
Delhi Police and, inter alia, a .32 Arminius revolver owned
by him was recovered by the police from his room at Pai C
Vihar Hotel at Bangalore; (k)the second post-mortem
report prepared after studying the X-ray plates of the skull
of the deceased revealed that there were two bullets
embedded in it; (l)the CFSL report stated that the said
two bullets recovered from the skull of the deceased and 0
the one lead bullet recovered from the said flat were fired
from the .32 Arminius revolver recovered by the police
from Pai Vihar Hotel at Bangalore; (m) the death of the
deceased was homicidal and was consequent upon
firearJTI injuries to the head of the deceased caused by E
the appellant alone with his .32 bor~ Arminius revolver;
(n) as per the CFSL Report, blood found on various .
articles seized from the said flat and from Bagi~
Restaurant and the blood found on the bullets recovered
from the skull tallied. It was of the blood gro~p of the F
deceased; (o) the defence of alibi pleaded by the
appellant was found to be false; and (p) the appellant and
A2 conspired to cause disappearance of the evidence of
murder by burning the dead body of the deceased in
tandoor of Bagia Restaurant. [Para 56) [608-B"H; 681-A- G
H; 682-A-B]
1.2. The chain of the circumstances is complete and
unerringly points to the guilt of the ~ppellant. The
established circumstances are capable of giving rise to
H
620 SUPREME COURT REPORTS [2013] 16 S.C.R.
A inference which is inconsistent with any other hypothesis
except the guilt of the appellant. The prosecution has,
therefore, proved that the appellant alone has committed
the murder of the deceased in the said flat on 2/7/1995.
The appellant conspired with A2 to do away with the dead
8 body of the deceased so as to cause disappearance of
the evidence of murder and, at the instance of the
appellant, A2 burnt the dead body in the tandoor. The
appellant has, therefore, rightly been convicted under
Section 302 of the IPC and also for offence under Section
C 201 read with Section 120-!3 of the IPC. A2 has been
acquitted of offence punishable under Section 302 read
with Section 120-B of the IPC. However, he has been
rightly convicted for offence punishable under Section
201 read with Section 120-B of the IPC. The conviction
of the appellant is confirmed for offence punishable
D under Section 302 IPC and also for offence punishable
under Section 201 read with Section 120-B IPC. [Para 57]
[682-C-G]
Bahadul v. State of Orissa. AIR 1979 SC 1262: 1979 (4)
E SCC 346; Swamy Shraddananda alias Murali Manohar
Mishra v. State of Karnataka (2007) 12 SCC 288: 2007 (7)
SCR 616 - referred to.
2.1. However, mere brutality of the murder or the
number of persons killed or the manner in which the
F body is disposed of has not always persuaded this Court
to impose death penalty. Similarly, at times, in the peculiar
factual matrix, this Court has not thought it fit to award
death penalty in cases, which rested on circumstantial
evidence or solely on approver's evidence. Where
G murder, though brutal, is committed driven by extreme
emotional disturbance and it does not have enormous
proportion, the option of life imprisonment has been
exercised in certain cases. Extreme poverty and social
status has also been taken into account amongst other
H circumstances for not awarding death sentence. In few
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 621
cases, time spent by the accused in death cell has been A
taken into consideration along with other circumstances,
to commute death sentence ihto l.ife imprisonment.
Where the accused had no criminal antecedents; where
the State had not led any evidence to show that the
accused is beyond reformation and rehabilitation or that B
he would revert to similar crimes in future, this Court has
leaned in favour of life imprisonment. In such cases,
doctrine of proportionality and the theory of deterrence
have taken a back seat. The theory of reformation and
rehabilitation has prevailed over the idea of retribution. c
[Para 79] [700-D-H; 701-A]
2.2. On the other hand, rape followed by a cold-
blooded, murder of a minor girl and further followed by
disrespect to the body of the victim has been often held
to be an offence attracting death 'penalty. At tillles, cases D
exhibiting premeditation and meticulous execution of the
plan to murder by levelling a calculated attack on the
victim to annihilate him, have been held to be fit cases
for imposing death penalty. Where innocent minor
children, unarmed persons, hapless women and old and E
infirm persons have been killed in a brutal manner by
persons in dominating position, and where after ghastly
murder displaying depraved mentality, the accused have
shown no remorse, death penalty has been imposed.
Where it is established that the accused is a confirmed F
criminal and has committed murder in a diabolic manner
and where it is felt that reformation and rehabilitation of
such a person is impossible and if let free, he would be
a menace to the society, this Court has not hesitated to
confirm death sentence. Many a time, in cases of brutal G
murder, exhibiting depravity and sick mind, this Court has
· acknowledged the need to send a deterrent message to
those who may embark on such crimes in future. In some
cases involving brutal murders, society's cry for justice
has been taken note of by this court, amongst other H
relevant factors. But, one thing is certain that while
622 SUPREME COURT REPORTS [2013] 16 S.C.R.
A deciding whether death penalty should be awarded or
not, this Court has in each case realizing the irreversible
nature of the sentence, pondered over the issue many
times over. This Court has always kept in mind the
caution sounded by the Constitution Bench in Bachan
B Singh that Judges should never be bloodthirsty but
wherever necessary in the interest of society locate the
rarest of rare case and exercise the tougher option of
death penalty. [Para 80) [701-B-G]
2.3. In the nature of things, there can be no hard and
C fast rules which the Court can follow while considering
whether an accused should be awarded death sentence
or not. The core of a criminal case is its facts and, the
facts differ from case to case. Therefore, the various
factors like the age of the criminal, his social status, his
D background, whether he is a confirmed criminal or not,
whether he had any antecedents, whether there is any
possibility of his reformation and rehabilitation or whether
it is a case where the reformation is impossible and the accused is
likely to revert to such crimes in future and become a threat
E o the society are factors which the criminal court will hav
to examine independently in each case. Decision whether
to impose death penalty or not must be taken in light of
guiding principles laid down in several authoritative
pronouncements of this Court in the facts and attendant
F circumstances of each case. [Para 81) [701-H; 702-A-C]
2.4. Though judicial proceedings do take a long time
in attaining finality, that would not be a ground for
commuting the death sentence to life imprisonment. The
G time taken by the courts till the final verdict is pronounced
cannot come to the aid of the accused in canvassing
commutation of death sentence to life imprisonment.
Though ordinarily, it is expected that even in this Court,
the matters where the capital punishment is involved, will
be given top priority and shall be heard and disposed of
H
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 623
as expeditiously as possible but it could not be doubted A
that, so long as the matter is pending in any court, before
final adjudication, even the person who has been
condemned or who has been sentenced to death has a
ray of hope. It, therefore, could not be contended that he
suffers that mental torture which a person -suffers when B
he knows that he is to be hanged but waits for the
doomsday. Therefore, the appellant cannot draw any
support from the fact that from the day of the crime till
the final verdict, a long time has elapsed. Fair trial is the
right of an accused and involves following the correct c
procedure and giving opportunity to the accused to
probabalize his defence. In a matter such as this, hurried
decision may not be in the interest of the appellant. [Para
82] [702-D-H; 703-A]
2.5. The appellant was the State President of the D
Youth Congress in Delhi. The deceased was a qualified
pilot and she was also the State General Secretary of
Youth Congress (Girls Wing), Delhi. She was an
independent lady, who was capable of taking her own
decisions. From the evidence on record, it cannot be said E
that she was not in touch with people residing outside
the four walls of her house. Evidence discloses that even
on the date of incident at around 4.00 p.m. sh~ had
contacted PW-12. She was not a poor illiterate hapless
woman. Considering the social status of the deceased, F
it would be difficult to come to the conclusion that the ·
appellant was in a dominant position qua her. The
appellant was deeply in love with the deceased and
knowing full well that the deceased was very close to
PW-12, he married her hoping that the deceased would G
settle down with him and lead a happy life. The evidence
on record establishes that they·were living together and
were married but unfortunately, it appears that the
deceased was still in touch with PW-12. It appears that
the appellant was extremely possessive of the deceased. H
624 SUPREME COURT REPORTS [2013) 16 S.C.R.
A The evidence on record shows that the appellant
suspected her fidelity and the murder was the result of
this possessiveness. When the appellant was taken to
Lady Hardinge Mortuary and when the dead body was
shown to him, he started weeping. It would be difficult,
B therefore, to say that he was remorseless. The fact that
he absconded is undoubtedly a circumstance which will
have to be taken against him, but the same would be
more relevant to the issue of culpability of the accused
which is already decided against him rather than the
c question of what would be the appropriate sentence to
be awarded which is presently under consideration. The
medical evidence does not establish that the dead body
of the deceased was cut. The second post-mortem report
states that no opinion could be given as to whether the
dead body was cut as dislocation could be due to
0
burning of the dead body. There is no recovery of any
weapon like chopper which could suggest that the
appellant had cut the dead body. No member of the
family of the deceased came forward to depose against
E the appellant. In fact, in his evidence, PW-81 10 stated that
the brother and sister-in-law of the deceased stated that
they were under the obligation of the appellant and they
would not like to depose against him. Murder was the
outcome of strained personal relationship. It was not an
offence against the Society. The appellant has no
F criminal antecedents. He is not a confirmed criminal and
no evidence is led by the State to indicate that he is likely
to revert to such crimes in future. It is, therefore, not
possible in· the facts of the case to say that there is no
chance of the appellant being reformed and rehabilitated.
G That option is not closed. Though it may not be. strictly
relevant, the appellant is the only son of his parents, who
are old and infirm. As of today, the appellant has spent
more than 10 years in death cell. Undoubtedly, the
offence is brutal but the brutality alone would not justify
H death sentence in this case. The above mitigating
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 625
circumstances persuade this Court to commute the death A
sentence to life imprisonment. Life sentence is for the
whole of remaining life subject to the remission granted
by the appropriate Government under Section 432 CrPC,
which, in turn, is subject to the procedural checks
mentioned- in the said provision and further substantive B
checks in Section 433-A CrPC. [Para 83] (703-B-H; 704-
A-G]
Bachan Singh, etc. v. State of Punjab, etc. (1980) 2 SCC
684 and Smt. Triveniben, etc. v. State of Gujarat, etc. (1989) C
1 SCC 678: 1989 (1) SCR 509 - followed.
Santosh Kumar Satishbhushan Bariyar, etc. v. State of
Maharashtra, etc. (2009) 6 SCC 498: 2009 (9) SCR 90;
Ramdeo Chauhan alia_s Raj Nath v. State of Assam(2001) 5
SCC 714: 2001 (3) SCR 669; Swamy Shraddananda (2) alias D
Murali Manohar Mishra v. State of Kamat-aka (2008) 13 SCC
767: 2008 (11) SCR 93; Aloke Nath Dutta & Ors. v. State of
West Bengal (2007)12 SCC 230: 2006 (10) Suppl. SCR 662;
Haresh Mohandas Rajput v. State of Maharashtra (~011) 12
SCC 56: 2011 (14) SCR 921; State of Punjab v. Manjit Singh E
~nd Ors. (2009) 14 SCC 31: 2009 (9) SCR 864; Mohd.
(;;haman v. State (NCT of Delhi) (2001) 2 S<;C 28; Dilip
I - . - _ _....
f?remnarayan Tiwari & Anr. etc. v. State of Maharashtra (2010)
1 SCC 775: 2009 (16) SCR 322; Sebastian alias
Chevithayan v. State of Kera/a (2010) 1 SCC 58; Rajesh F
Kumar v. State through Government of NCT of Delhi (2011)
13 SCC 706; Amit v. State of i.Jttar Pradesh (2012) 4 SCC
107, Machhi Singh & Ors. v. State of Punjab (1983) 3 SCC
470: 1983 {J) SCR 413; Piare Dusadh v. King Emperor AIR
1944 FC 1; Neti Sreeramulu v. State of Andhra Pradesh G
(1974) 3 SCC 314: 1973 (3) SCR 844; Ediga Anamma v.
· State of Andhra Pradesh (1974) 4 SCC 443: 1974 (3) SCR
329; Ramesh ana Ors. v. State of Rajas.than (2011) 3 SCC
685: 2611 (4) SCR 585; Mohd. Farooq Abdul Gafur & Anr.
etc. v. State of Maharashtra, etc. (2010) 14 SCC 641 : 2009 H
626 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (12) SCR 1093; State of Uttar Pradesh v. Munesh (2012) 9
SCC 742; Ediga Anamma (1974) 4 SCC 443; Mahesh slo.
Ram Narain, & Ors. v. State of Madhya Pradesh (1987) 3 SCC
80: 1987 (2) SCR 710; Machhi Singh; Molai & Anr. v. State
of Madhya Pradesh (1999) 9 SCC 581: 1999 (4) Suppl. SCR
B 104; State of Rajasthan v. Kheraj Ram (2003) 8 SCC 224:
2003 (2) Suppl. SCR 861; Dhananjoy Chatterjee alias Dhana
v. State of West Bengal (1994) 2 SCC 220: 1994 (1) SCR 37;
Mohinder Singh v. State of Punjab (2013) 3 SCC 294: 2013
(3) SCR 90 and Sangeet & Anr. v. State of Haryana (2013) 2
c sec 452 - referred to.
Case Law Reference :
1979 (4) sec 346 referred to Para 59
2007 (7) SCR 616 referred to Para 59
D
(1980) 2 sec 684 followed Para 59
2009 (9) SCR 90 referred to Para 59
2001 (3) SCR 669 referred to Para 59
E 2008 (11) SCR 93 referred to Para 59
2006 (10) Suppl. SCR 662 referred to Para 59
2011 (14) SCR 921 referred to Para 59
F 2009 (9) SCR 864 referred to Para 59
(2001) 2 sec 2a referred to Para 59
•
2009 (16) SCR 322 referred to Para 59
(201 O) 1 sec 58 referred to Para 59
G
(2011) 13 sec 106 referred to Para 59
(2012) 4 sec 101 referred to Par'a 59
1983 (3) SCR 413 referred to Para 59
H
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 627
AIR 1944 FC 1 referred to -Para 59 A
1973 (3) SCR 844 referred to Para 59
1974 (3) SCR 329 referred to Para 59
2011 (4) SCR 585 r~ferred to Para 59
B
2009' (12) SCR 1093 referred to Para 59
(2012) 9 sec 142 referred to Para 59
(1974) 4 sec 443 referred to Para 60
c
1987 (2) SCR 710 referred to Para 60
1999 (4) Suppl. SCR 104 referred to Para 60
2003 (2) Suppl. SCR 861 referred to Para 60
1994 (1) S.CR 37 referred to Para 60 D
1989 (1) SCR 509 followed Para 60
2013 (3) SCR 90 referred to Para 73
(2013) 2 sec 452 referred to Para 73 E
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 693 of 2007.
From the Judgment and Order dated 19.02.2007 of the
High Court of Delhi at New Delhi in Death Sentence Reference F
No. 3 of 2003 with Criminal Appeal No. 827 of 2003
Jaspal Singh, Sumita Kapil,· Sudershan Rajan, Mukesh
Kalia, Anshul Wadhwa, Subramonium Prasad for the Appellant.
Amarjit Singh Chandhiok, Mukul Gupta, Wasim A. Qadri, G
Ritesh Kumar, Shweta Gupta, Honey Kumari, Mallika Ahluwalia,
Sadhna Sadhu, Anjali Chauhan, Zaid Ali, D. S. Mahrafor the
Re.spondent.
The Judgment of the Court was delivered by H
628 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (SMT.) RANJANA PRAKASH DESAI, J. 1. In this
appeal, by special leave, appellant - Sushi! Sharma ("the
appellant") has challenged judgment and order dated 19/02/
2007 passed by the Delhi High Court in Criminal Appeal
No:827 of 2003 confirming the death sentence awarded to him
B in Sessions Case No.88 of 1996. He was tried in the said case
along with A2-Keshav Kumar ("A2-Keshav"), A3-Jai Prakash,
A4-Rishi Raj ana A:i-Ram Prakash.
2. The appellant was tried for offences punishable under
C Section 302, Section 120-B read with Sections 302 and 201
of the Indian Penal Code ("the IPC"). A2-Keshav was tried
under Section 120-B read with Sections 302 and 201 of the
IPC. A3-Jai Prakash, A4-Rishi Raj and A5-Ram Prakash were
tried under Section 212 of the IPC. Learned Additional
Sessions Judge by judgment and order dated 3/11/2003
D convicted the appellant under Section 302 of the IPC. He
convicted the appellant and A2-Keshav under Section 120-B
read with Section 201 of the IPC. Since the charge under
Section 302 read with Section 120-B of the IPC was held not
proved against A2-Keshav, he was acquitted of the said
E charge. Charge under Section 212 of the IPC was held not
proved against A3-Jai Prakash, A4-Rishi Raj and A5-Ram
Prakash and they were acquitted. Learned Additional Sessions
Judge forwarded the death reference to the Delhi High Court,
as required under Section 366 of the Code of Criminal
F Procedure, 1973 ('the Cr.P.C.'). A2-Keshav did not file any
appeal. As stated above, by the impugned judgment, the Delhi
High Court confirmed the death sentence awarded to the
appellant.
PROSECUTION CASE:
G
3. The appellant was the President of Delhi Youth
Congress (I), at the relevant time. Naina Sahni ('the deceased')
was the General Secretary of the Delhi Youth Congress (I) Girls
Wing. The appellant and the deceased were working for Delhi
H Youth Congress. The office of the Delhi Youth Congress was
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 629
[RANJANA PRAKASH DESAI, J.]
earlier situated at 4, Bhai Veer Singh Marg, Gole Market, New A
Delhi. Later on, it was shifted to 2, Talkatora Road, New Delhi.
The deceased used to visit the appellant at toe office of Youth
Congress at the above-mentioned places. In the year 1992, the
appellant obtained Flat No.8/2A situated at Mandir Marg, New
Delhi ("Flat No.812A" or "the said flat") from it's allottee - B
Jagdish Prasad. The deceased used to visit the appellant at
the said flat also. At times, she used to stay there in the night.
The appellant and the deceased got married secretly. The
deceased, therefore, continued to live in the said flat as the wife
of the appellant till she was murdered. c
4. The India Tourism Development Corporation ('the
ITDC') which was running its unit called Ashok Yatri Niwas at
Ashoka Road entered into a licence agreement on 1011.111994
with Lalit Kishore Sachdeva, Virendra Kumar Nagpal, Manoj
Malik, R.P. Sachdeva and the appellant- partners of Mis. Excel D
Hotel & Restaurant Inc., situated at 159, Kamla Market, Delhi.
The licence granted by the ITDC permitted the user of park in
front of main gate of Ashok Yatri Niwas towards Ashoka Road
by the said partners of Mis. Excel Hotel & Restaurant Inc. for
running a 'Bar-be-Que'. As per the licence, Bar-be-Que was E
continuously run by the appellant at the said park. It was ca
led 'Bagia Bar-be-Que'. There was a tandoor in the said park.
The park had fencing of bamboos called Jafri.
5. On the night of 2-3/07/1995, PW-3 HC Kunju, who was F
posted at the P.S. Connaught Place and PW-4 Home Guard
Chander Pal of Delhi Home Guard were patrolling in the
Ashoka Road, Western Court Area. At about 11.00 p.m., when
they reached near Ashok Yatri Niwas they heard the cry of PW-
7 Anaroo Devi saying 'hotel main aag lag gayt' (hotel is on G
fire). Having heard the cry, PW-3 HC Kunju and PW-4 Home
Guard Chander Pal rushed towards Janpath lane where Ashok
Yatri Niwas is situated. They noticed smoke spiralling and
flames leaping out of Bagia Bar-be-Que from the side of the
kitchen. PW-3 HC Kunfu rushed to the nearby telephone booth. H
630 SUPREME COURT REPORTS [2013] 16 S.C.R.
A to inform the control room. However, the telephone booth was
closed. He, then, left PW-4 Home Guard Chander Pal at the
site and rushed to the police post Western Court situated
nearby to inform the police station, on wireless, about the fire.
On return, PW-3 HC Kunju noticed that the smoke and fire had
13 increased. PW-3 HC Kunju and PW-4 Home Guard Chander
Pal, in order to find out the cause of the same, entered the Bar-
be-Que from its ba1,;k. They found A2-Keshav standing near the
tandoor. They also noticed him pu'tting wooden logs and small
fire wood in the fire so as to increase it with the aid of a
c bamboo. PW-3 HC Kunju told A2-Keshav that by this, the fire
would spread and the entire hotel would be burnt. A2-Keshav
then represented to PW-3 HC Kunju that he was a worker of
the Congress Party and he was burning old banners, posters
and waste papers of the party.
D 6. Patrolling Officer SI Rajesh Kumar along with CW-5 HC
Majid Khan of Police Control Room, PW-62 PC Ranbir Singh
and security staff of hotel PW-35 Mahesh Prasad reached the
Bar-be-Que from the main gate of Ashok Yatri Niwas towards
Ashoka Road. The appellant was noticed by them standing by
E the side of the kanat at the gate of the Bar-be-Que. Foul and
pungent smell was emitting from the tandoor. A2-Keshav was
detained out of suspicion by SI Rajesh Kumar and PW-3 HC
Kunju. SI Rajesh Kumar along with security staff of the hotel and
A2-Keshav then went upstairs to find out whether the fire had
F spread there. They noticed that the flames in the tandoor had
flared-up again. SI Rajesh Kumar and others rushed
downstairs. By that time the appellant had run away from there.
7. The fire was doused. When they went near the tandoor
G they saw a part of human body inside it. Closer look revealed
that it was a charred body of a female whose limbs had burnt.
Intestines had come out of the body. Burnt bones were lying in
the tandoor. They also noticed near the tandoor a black
polythene sheet. Investigating Officer PW-81 10 Niranjan Singh
and senior officer of the hotel PW-5 K.K. Tuli also reached
H
13USHIL SHARMA v. STATE OF N.C.T. OF DELHI 631
[RANJANA PRAKASH DESAI, J.]
there. Then, A2-Keshav was handed over to PW-81 10 Niranjan A
Singh. PW-81 10 Niranjan Singh inspected the site. He found
that the burnt body was of a woman. He recorded the statement
of PW-3 HC Kunju which was treated as FIR.
8. There were blood stains on the clothes of A2-Keshav. 8
He was arrested. His blood stained clothes were seized. PW-
81 10 Niranjan Singh seized the polythene sheet, besides other
articles, from the place of offence. After holding the inquest
proceedings, PW-81 10 Niranjan Singh sent the aead body to
RML Hospital, where PW-85 Dr. Joginder Singh prepared the C
Medico Legal Report (Ex.PW-85/A). PW-85 Dr. Joginder Singh
noticed the following condition of the charred body.
"Whole body burnt exposing underlying bones and tissues,
gastro intestinal contents are protruding outside. The left
lower limb is amputated above the knee joint, right limb is D
amputated below knee joint. Brought dead."
9. The prosecution had made an application to the hospital
authorities to preserve the dead body as it was not identified.
In view of the disclosure made by A2-Keshav, the search for E
the appellant and the Maruti Car in which he had come to the
restaurant was started. Since both could not be traced out, the
police obtained arrest warrant for the appellant.
10. On 04/07/1995 the police got information from
Chanakya Puri Police Station that Maruti Car No.DL-2CA-1872 F
had been found abandoned at Malcha Marg near Gujarat
Bhawan where the appellant had gone and spent the night of
2-3/07/1985 with PW~31 D.K. Rao after fleeing from his Bagia
Restaurant. The police team reached the said place and found
the Maruti Car abandoned there. On inspection of the car, they G
found dried blood in the dicky and some hair stuck on the back
of the left front seat. On 4/7/1995 the police also searched Flat
No.8/2A where the appellant was residing. Certain articles were
seized. During the search, some cartridges, a lead bullet and
a ply having a hole and an air pistol were seen in the said flat H
632 SUPREME COURT REPORTS [2013] 16 S.C.R.
A but they were not seized as Ballistic Expert was not present.
They were seized in the presence of Ballistic Expert on 5171
1995 under a panchnama. On enquiries made from the
neighbourhood, the police came to know that the deceased
used to live in the said flat of the appellant as his wife. One
B Maruti Car No.DAC 3283 was parked below the flat, which was
found to be in the name of the deceased. It was seized by the
police.
11. Parents of the deceased were contacted for
identification of the corpse. On seeing the charred body kept
C in the mortuary, they simply wept but they could not identify the
dead body. On 05/07/1995 the dead body was identified by
PW-12 Matloob Karim, who was also a worker of the Congress
Party and was stated to be very close to the deceased.
Thereafter, on 05/07/1995, the post-mortem examination was
D conducted by CW-6 Dr. Murari Prasad Sarangi. The condition
of the burnt body as noticed by CW-6 Dr. Sarangi, in his
Report, was as under:
"(Eyes, Ears, Nose, Mouth, Teeth and Tongue etc.)
E
Both eye lids with face charred, eye balls destroyed, ears,
nose and lips were also charred, teeth were exposed and
studded with soot, other natural orifices were studded with
soot particles.
F EXTERNAL EXAMINATION:-
Revealed extensive charring of a female dead body
beyond identification, having attained a Pugilistic attitude
owing to coagulation of the muscle proteins.
G Skull bone exposed, partly burnt, blackened, showed
multiple post mortem cracks with a few strands of partially
burnt hair and metallic hair clip .
. . . intestines exposed to outside with portions of other
H internal organs in the abdomen, more on the left side.
SUSHIL SHARMA v. STATE OF N:c.T. OF DELHI 633
[RANJANA PRAKASH DESAI, J.]
'Thoracic cage, intercostals muscles and diaphragm were A
burnt more on the It side. ·
Lt. thigh was chopped off, 28 ems. below left. And super
iliac spine, underlying thigh bone cut from the back
showing beveling from above downwards vide overleaf B
No evidence of firearm discharge from internal
examination of the organs.
HEAD and NECK
Scalp tissue almost burnt except over a very insignificant c
(2. 5 x 0. 8 cm) area on the occipital region with a few
strands of burnt hair. Skull showed multiple post mortem
heat cracks partly charred and blackened.
BRAIN, MENINGES and CEREBRAL BLOOD VESSELS: D
Reddish white thick heat haematoma present more on
the left cerebral hemisphere above the dura adhered to
the endoevanium on the same side. Meninges intact and
pale. Brain shrunken and substance looked pale, no
injury or haemorrhage anywhere. E
LARYNX, PHARYNX and OTHER NECK STRUCTURES
Pharynx, Larynx and Tracheal rings intact lipoid bone
intact. Mucous membranes of Pharynx, Larynx and
Trachea showed adhered soot particles. Blood vessels F
were destroyed and collapsed due to burns.
THORAX
Burnt as mentioned above. Leg was chopped off 23 cm. G
below the knee. Both the bones of the leg exposed being
cut from the front showing beveling below and inwards.
Patella (knee cap) bone was missing on the Rt.side Distal
phalanges in the hand missing (chopped off) Upper limb
was chopped off just below the elbow. · H
634 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Trachea and Bronchi: Intact, mucosa of Tracheal rings
smeared with black soot particles.
Pleural Cavity and Lungs: Pleural studded with carbon
particles did not show any inflammatory sign to the naked
eyes. Both lungs shrunken, desiccated and pale WT 200
B
gms. (Lt) 210 gms (Rt.)
Abdominal wall, peritoneum: Abdominal and pelvic walls
burnt, peritoneum- partly burnt.
c Stomach and contents: Contained about 500 ml of
brownish-semi liquid material, smelt alcoholic, walls
looked pale
Pancreas, small and large intestines: Shrunken,
desiccated, protruded out, no injury/abnormality Vilas
D .noticed."
12. CW-6 Dr. Sarangi opined provisionally that the cause
of death was "hemorrhagic shock consequent to various ante-
mortem injuries found on the dead body". According to CW-
E 6 Dr. Sarangi the burns noticed on, the dead body appeared
to have been inflicted after death. Final opinion about the causa
of death was kept pending by him till the receipt of the Report
about histopathological examination as well as the Report of
examination of viscera and blood sample. Although PW-81 10
F Niranjan Singh had also asked for X-ray of the dead body to
find out if there was any firearm injury, it could not be conducted
at that time because the X-ray machine was stated to be out
of order.
13. The appellant, in order to avoid his arrest, spent the
G night of 2/7/1995 at Gujarat Bhawan, New Delhi with PW-31
D.K. Rao and from there he kept on going from one city to
another. He called up PW-31 D.K. Rao on 4/7/1995 from
Bombay and told him that he had .killed his wife i.e. the
deceased. It may be mentioned here that the ~igh Court has
H not relied upon this piece of evidence and, in our opinion, rightly
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 635
[RANJANA PRAKASH DESAI, J.]
so. The appellant obtained anticipatory bail from the Sessions A
Court at Madras upon coming to know that the police were
looking for him. The anticipatory bail granted by Sessions Court,
Madras was later on cancelled by the Madras High Court at the
instance of the Delhi Police. He was arrested on 10/07/1995
at Bangalore by the Bangalore Police under Section 41A of the B
Cr.P.C. when he was moving around in a suspicious manner
with his advocate Mr. Anantanarain. Delhi Police upon coming
to know about his apprehension went to Bangalore and took
over the custody of the appellant on 11 /7 /19ti5 with the
permission of the concerned court. During the interrogation, itc
transpired that the appellant was staying in one hotel called Pai
Vihar along with advocate Mr. Anantanarain. The appellant led
the police to Room ·No.110 of the said hotel. From the room
he produced a briefcase which was found to contain one .32
bore revolver No.1277725 (make Arminius) with its license in D
his name, four live cartridges and some other documents. All
these articles were seized by PW-81 10 Niranjan Singh.
14. The appellant was then brought to Delhi. Pursuant to
disclosure statements made by him one blood stained kurta-
pajama was recovered from the bushes near Gujarat Bhawan E
at Malcha Marg. At his instance, another blood stained kurta
was also recovered from Rangpuri area .
..
15. The investigating agency decided to get another post-
mortem examination conducted from .a Board ·of Autopsy F
Surgeons. Accordingly, second post-mortem examination was
done on 12/07/1995 by a team of three doctors headed by PW-
44 Dr. Bharat Singh. During the course of the second post-
mortem examination the dead body was subjected to X-ray
examination and the X-ray Reports showed the presence of one G
metallic piece in the skull and one in the neck region of the
dead body. Those metallic pieces were then extracted out and
were found to be lead bullets. The Board of Doctors opined that
the cause of death was due to "coma consequent upon firearm
injury on the head which was sufficient to cause death in the H
ordinary course of nature".
636 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 16. The bullets recovered from the body, fired cartridge
cases, one lead bullet which were recovered from the said flat,
the live cartridges and Arminius revolver recovered from the
possession of the appellant at Bangalore were sent to the
Central Forensic Science Laboratory ("the CFSL") for
B examination by a Ballistic Expert. The Ballistic Expert - PW-
70 Roop Singh gave Report (Ex. PW-70/A) confirming that the
.32 Arminius revolver was a firearm in working condition and
had been fired through. He further opined that the five .32
cartridge cases and one lead bullet, which were recovered from
C the said flat and the two lead bullets which were extracted from
the skull and neck of the deceased had been fired from the said
.32 Arminius revol~er. The piece of plywood seized from the
said flat on which a bullet hole was noticed, was also forwarded
to the CFSL. The bullet hole was found to have been caused
D by the aforesaid .32 lead bullet recovered from the said flat.
Blood stained articles seized from the Bagia Restaurant and
those recovered from the said flat were sent to the CFSL
where, on examination, it was found that human blood found
on th13se articles was of 'B' group, which was the blood group
of the deceased.
E
17. DNA test was also got conducted from the Centre for
Cellular and Molecular Biology, Hyderabad for confirming the
identity of the corpse by forwarding to it the blood samples ,of
the parents of the deceased and the tissues (muscle) from the
F thigh, radius and ulna bones and two ribs of the deceased. The
DNA Report (Ex.PW-87/A) confirmed that the dead body which
was burnt at the Bagia Bar-be-Que tandoor was that qf the
deceased, who was the biological offspring of CW-1 Smt.
Jaswant Kaur and CW-2 Harbhajan Singh.
G 18. After completion of investigation, the prosecution came
to the conclusion that the deceased was killed by the appellant
since he was suspecting that she was having some relationship
with PW-12 Matloob Karim. The appellant also did not want to
make his marriage with the deceased public and the deceased
H
SUSHIL SHARMA/V. STATE OF N.C.T. OF DELHI 637
[RANJANA PRAKASH DESAI, J.]
was insisting on that. After killing her, the appellantwith the help A
of A2-Keshav burnt her dead body in the tandoor of Bagia Bar-
be-Que. The appellant was harboured to save him from
punishment from the crime by three persons, namely, A3-Jai
Prakash, A4-Rishi Raj and AS-Ram Prakash. After the case
was committed to the Sessions Court, learned Additional B
Sessions Judge framed charges as aforesaid against the
accused.
THE TRIAL:
19. In support bf its case, the prosecution examined ~5 C
witnesses. Seven Court Witnesses were also examined. We
shall refer to the important witnesses as we proceed further.
All the accused pleaded not guilty to the charges and claimed
to be tried. During the trial, A2-Keshav moved an application
t confessing his guilt so far as the charges against him under D
'Section 201 read with Section 120-B of the IPC are concerned.
He requested the court to dispose of his case in view of the
confession. He, inter alia, stated that he had not conspired to
murder the deceased. He was serving in Bagia Restaurant of
the appellant and, at his command, he put the dead body of E
the deceased in the tandoor. At the trial, A2-Keshav admitted
the correctness of the contents of his confessional application.
However, he added that it was moved because the Special
Public Prosecutor told him that he would be released at the final
stage of the trial. F
20. The appellant in his statement recorded under
Section 313 of the Cr.P.C., inter alia, stated that from the
evening of 1/7/1995 to 6/7/1995 he was at Tirupati Balaji and
then he went to Madras on 7/7/1995. From Madras, he gave a
telephone call at his residence in Maurya Enclave in Delhi when G
he came to know that one ACP Alok Kumar had visited his
residence on 3/7/1995 and had removed from there his vehicle,
licensed revolver, license of the revolver and bullets. He, further,
stated that the ACP had given his telephone number and had
H
638 SUPREME COURT REPORTS (2013] 16 S.C.R.
A left a message for him to c"ontact him on phone and when the
appellant contacted the ACP, he told him to get anticipatory bail
otherwise he would be arrested. He, then, obtained anticipatory
bail from the Sessions Court at Madras. On 8/-7/1995, he was
called for enquiry at a police station at Madras and that day in
B the evening some police officers from Delhi reached there and
brought him to Bangalore and showed his arrest there on 10/
7/1995. He admitted that Car No.DL-2CA-1872 belonged to
him. He stated that it was removed from his residence at MP-
27, Maurya Enclave, Delhi where it was p~rked by his driver.
c At one stage, he admitted that he was living with the deceased
at Mandir Marg. However, as far as his relationship with the
deceased is concerned he stated as under:
"I knew Naina since 1985. She contested election of
Shyama Parsad Mukherjee college. She lost. I was
D president of N.S.U.I. Delhi. She came in contact with me
then. Her attendance was short in the college. She was not
allowed to sit in the examination. Next year I got admitted
her in the correspondence course. She was career
oriented woman. She learned the course of Pilot. I helped
E her in that. She went to London for CPL (Commercial pilot
license). From 1994 to January 1995 she lived in a flat
Opp. Birla Mandir as paying guest. That flat belonged to
a lady working in Doordarshan. I have shown that flat to
police. Police did not cite her as witness. I used to be
F called at various functions organized at her residence
along with other lady friends associated with 'her business
and pilot course. She started living separately from her
parents after there was a dispute between her and her
father. She then lived at Gole Market. In the functions which
G were organized at the residence at Gole Market her
parents visited and I also visited. She had a servant Ramu
@ Silas. She was not allowing anyone else to stay there
including her parents. I had no contact with her after
January, 1995. She remained busy in her career and I
H remained involved in politics".
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 639
[RANJANA PRAKASH DESAI,_ J.]
21. None of the accused persons adduced any evidence A
in defense.
22. After considering the evidence, learned Additional
Sessions Judge convicted the appellant as aforesaid. The
Reference made by the learned Sessions Judge under Section
8
366 of the Cr.P.C. was heard by the High Court along with the
appeal filed by the appellant challenging his conviction and
sentence. The High Court dismissed the appellant's appeal and
confirmed the death sentence awarded to him. Hence, this
appeal by special leave.
c
23. We have heard Mr. Jaspal Singh, learned Senior
Advocate for the appellant and Mr. Amarjit Singh Chandhiok,
learned Additional Solici,tor General for the State of NCT of
Delhi. We have carefully perused the written submissions filed
by them. Since death sentence is awarded to the appellant, we. D
have independently considered the evidence. We shall now give
the gist of the submissions of the counsel.
24. WRITTEN SUBMISSIONS ON BEHALF OF THE
APPELLANT ON THE MERITS OF THE CASE:
E
(a) This is a case which rests on circumstantial
evidence and, therefore, motive assumes great
significance. The prosecution case is that the
deceased wanted to make public her marriage with
the appellant and the appellant did not want to do F
that because that would have affected his political
career. To substantiate this case, PW-12 Matloob
Karim has been examined, but, his conduct makes
him a totally unreliable witness. He is a married man.
Despite the appellant's marriage with the G
deceased, he kept alive his relationship with the
deceased. He continued to assist the deceased in
her attempt to go to Bombay or migrate to Australia.
All this indicates that he was inimically disposed
towards the appellant. In any case, marriage can H
640 SUPREME COURT REPORTS [2013] 16 S.C.R.
A hardly spoil anyone's political prospects. Besides,
there is ample evidence on record to establish that
the marriage was already known to everybody. PW-
12 Matloob Karim knew about it. Marriage was with
the consent of the parents of the deceased. They
B used to visit the said flat where the deceased was
allegedly living with the appellant as his wife. Thus,
the alleged motive for the murder viz. that the
deceased wanted to make the marriage between
her and the appellant public is not proved. Even
c otherwise, the prosecution evidence shows that the
appellant was deeply in love with the deceased.
Despite knowing her intimate relations with PW-12
Matloob Karim, he did not turn her out of the house.
He only restricted her movements as he wanted to
stop her from her wayward ways. There is no
D
evidence on record to show that there were any
constant quarrels between the appellant and the
deceased. The story that the appellant suspected
the fidelity of the deceased and, hence, he killed her
is also not borne out by the evidence. Therefore, the
E prosecution has failed to prove motive.
(b) It is the prosecution case that empty cartridges
were recovered from the matrimonial house of the
deceased on 4th and 5th of July, 1995. According
F to PW-81 10 Niranjan Singh, on 4/7/1995, he
inspected the said flat in the presence of PW-14
Inspector Suraj Prakash and PW-13 Ohara Singh.
He found two bowls on the cupboard containing
empty cartridges and one .32 bore empty cartridge
G under a stool and one lead bullet under the bed. He
further stated that he did not take them into
possession as the Ballistic Experts were not
present. According to him, he left the said flat under
surveillance of PW-14 Inspector Suraj Prakash.
H This story is concocted because PW-13 Ohara
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 641
[RANJANA PRAKASH DESAI, J.]
Singh, the panch witness has nowhere stated that A
empty cartridges and lead bullet were found in the
house on 4/7/1995. He visited the said flat on 5/7/
1995 along with PW-70 Roop Singh, the Ballistic
Expert and took those cartridges and lead bullet into
possession in his presence. The lead bullet was B
stained with the blood of the blood group of the
deceased .. PW-14 Inspector Suraj Prakash
admitted that in his statement recorded under
Section 161 of the Cr.P.C. there is no mention of
those r~coveries. No memo was prepared that c
though empty cartridges and lead bullet had been
found, they had notbeen taken into possession on
account of the advise of persons from the CFSL.
The Ballistic Expert - PW-70 Roop Singh does not
say anything about the recoveries allegedly effected D
on 5/7 /1995. There is a recovery memo of 4171
1995. It does not speak of recovery of empty
cartridges or lead bullet. Thus, the version of PW-
81 10 Niranjan Singh about the recovery of empty
cartridges and lead bullet is falsified. E
(c) It is the case of the prosecution that the deceased
had received two bullet injuries in the skull. This is
confirmed by the Report of the Board of poctors.
Any other firearm injury is, therefore, ruled out.
Therefore,. the prosecution must explain the F
p_resence of a lead bullet having blood group of the
deceased in the room. This suggests that there was
some other person also in the house having the
same blood group as that of the deceased as the
appellant has a different blood group from that of G
the deceased. Had the prosecution taken the finger
prints from the vodka bottle which was lying there,
it would have provided answer to this as someone
was consuming vodka in the room. The deceased
was a teetotaler and so is the appellant. Besides, H
642 SUPREME COURT REPORTS [2013] 16 S.C.R.
A the alleged recovery of empty cartridges, lead bullet
and bullet hole in the plywood show that at least 10
rounds were fired (5 empty cartridges in the bowls,
two recovered from the floor, one causing 'hole in
the ply and two found from the skull). Surprisingly,
B the next door neighbours did not notice such firing.
Moreover, the police found no trail of blood in the
drawing room, on the stairs or on the road. This
casts a shadow of doubt on the prosecution story.
(d) It is also doubtful whether the death was caused
c due to firearm injuries. PW-85 Dr. Joginder Pal, the
Casualty Medical Officer at RML Hospital, who was
on duty on 3/7 /1995, stated that he did not find any
firearm injuries in the neck or in the head or in the
nape of the deceased. CW-6 Dr. Sarangi, who had
D conducted the post-mortem of the deceasE?d on 5/
7/1995 at 3.30 p.m. at Lady Hardinge Medical
College stated that he had opened the skull and
had not noticed any bullet mark or any bullet and
that the brain matter was intact. CW-6 Dr. Sarangi
E is MBBS and MD in forensic medicine and
toxicology, having experience in the field and,
therefore, his evidence cannot be lightly brushed
aside. The Board of Doctors allegedly extracted
two bullets and opined that those two bullets
F caused the death. Report dated' 13/7/1995 of the
Board headed by PW-44 Dr. Bharat Singh needs
to be rejected because as per PW-44 Dr. Bharat
Singh, the Board first conducted post-mortem on
12/7/1995 at 12.00 noon at Lady Hardinge Medical
G College which lasted upto 2.00 or 3.00 p.m. and it
was only after 2.00 or 3.00 p.m. that the body was
shifted to the Civil Hospital. However, as per PW-
57 SI Ombir Singh, on instructions of PW-81 10
Niranjan Singh, he reached the mortuary of Lady
H Hardinge Medical College at 9.00 a.m. on 12/7/
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 643
[RANJANA PRAKASH DESAI, J.]
1995, took the body from there at 9.30 a.m. and A
reached the Civil. Hospital at 11.30 a.m., where he
entrusted the body to PW-44 Dr. Bharat Singh.
According to him, post-mortem started at Civil
Hospital at 12.30 p.m. However, as per the Report
of the Board, the post-mortem started at Lady B
Hardinge Medical College at 12.00 noon and,
thereafter, the body was shifted to the Civil Hospital.
PW-57 SI Ombir Singh has not been declared
hostile and, if his statement is accepted, the
evidence of PW-44 Dr. Bharat Singh about the c
post-mortem becomes suspect.
(e) There is no evidence on record that the body and
the skull subjected to post-mortem by the Board
were of the deceased. PW-44 Dr. Bharat Singh
stated that the body and the skull had been identified D
by PW-57 SI Ombir Singh. However, PW-57 SI
Ombir Singh has nowhere stated that he had
identified the body. There ·is no evidence produced
from the mortuary of Lady Hardinge Medical
College that on· 12/7/1995 the body and the skull of E
the deceased were in its mortuary and 110 record
has been prodt1ced to show that they were removed
from there on 12/7/1995. Lady Hardinge Hospital
& Medical College is one of the top-most hospitals
in Delhi. It is unbelievable that it had no X-ray facility. F
Therefore, the reason given for removal of the dead
body and skull from Lady Hardinge mortuary to Civil
Hospital that because X-ray facility was not
·available there, it was so removed, is not
acceptable. G
(f) The entire evidence relating to the Board of Doctors
deserves to be rejected because (a) there is no
evidence that the skul! sent for X-ray was that of the
deceased; (b) assuming that the skull was that of
H
644 SUPREME COURT REPORTS [2013] 16 S.C.R.
A the deceased, the prosecution has not led any
evidence to assure that before 12/711995, it had not
been tampered with; (c) the members of the Board
have not proved the sky grams which allegedly they
had examined on 12/7/1995; (d) although PW-44
B Dr. Bharat Singh has stated that the sky grams and
the Reoort of the Radiologist were received from
the Radiologist on 12/7i'i995 &t £.00 p.m. or 3.00
p.m., the Report of the Radiologist shows that X-
rays were taken on 13/7/1995 and the Report was
c also prepared on 13/7/1995 and (e) as the X-ray ·
films were developed and the Report was prepared
on 13/7/1995, recovery of bullets from the skull on
12/7/1995 allegedly on the basis of X-rays and the
Report of CW-7 Dr. P.S. Kiran makes the entire
D version regarding recovery of bullets unworthy of
reliance. There is no evidence on record to establish
that the members of the Board were experts in
conducting post-mortems. The answer given by
CW-6 Dr. Sarangi to a court question, which
contains six reasons for rejecting the Report of the
E
Board have not been answered by the prosecution.
CW-6 Dr. Sarangi stated that after the post-mortem
was conducted on 5/7/1995 on the request of PW-
81 10 Niranjan Singh, he had handed over the skull
bone, after separating the same from the body, to
PW-81 10 Niranjan Singh. This is supported by
endorsement dated 5/7/1995 made by PW-81 10
Niranjan Singh on a letter addressed by SlriO, P.S.
Connaught Place to the Autopsy Surgeon, Lady
Hardinge Medical College. If the skull was handed
G over to PW-81 10 Niranjan Singh on 5/7/1995, then
there is no evidence to show where the skull was
kept till 12/7/1995 when it was produced before the
Board headed by PW-44 Dr. Bharat Singh for post-
mortem. PW-44 Dr. Bharat Singh has stated that
H "a burnt dead body with skull separated" was
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 645
[RANJANA PRAKASH DESAI, J.]
received by him and that the skull was kept in a A
separate cardboard box. Therefore, there is no
•
evidence to establish that the skull was that of the
deceased and assuming it to be the skull of the
deceased, there is no guarantee that between 5/7/
1995 and 12/7/1995, it was not tampered with. B
From the evidence on record, it can be said that
only one unidentified skull of a lady containing two
bullets was handed over to the Board on 12/7/1995.
When asked whether a bullet can be put inside the
body after death at a place where it· had been c
noticed by the Board, CW-6 Dr. Sarangi stated that
such a possibility could not be absolutely ruled out
especially in the presence of multiple post-mortem
cracks and separation of the skull bone from the
neck for the purpose of superimposition.
D
(g) Assuming that the skull produced before the Board
was that of the deceased and that two bullets were
recovered from the skull, the prosecution has failed
to prove that the bullets were fired from the revolver
of the appellant. It is the prosecution case that two E
bullets were put in two separate parcels and both
bore the seal of Civil Hospital and, they were
handed over to PW-81 10 Niranjan Singh by PW-
57 SI Ombir Singh. However, PW-81 10 Niranjan
Singh has nowhere stated that he had deposited F
the two parcels with the seal of Civil Hospital with
the Mohrar Malkhana. He has not stated that he had
himself sent those two parcels with the seal of the
Civil Hospital to the CFSL. PW-67 HC Raj Kumar,
who was in-charge of Mohrar Malkhana has stated G
that no parcel was deposited with him on 12/7/
1995, 13/7/1995and 14/07/1995. ltwasonlyon 15/
7/1995 that two parcels were deposited but they
bore the seal of N.S. Thus, from his evidence, it
cannot be concluded that the parcels with the seal H
646 SUPREME COURT REPORTS [2013] 16 S.C.R.
A of Civil Hospital were ever sent to the CFSL. If
these parcels were never sent to the CFSL, it
cannot be said that the two bullets which killed the
deceased were fired from the revolver of the
appellant. Moreover, the two bullets which were
B allegedly extracted by the Board from the skull have
not been identified by anyone.
(h) The case that a revolver, a licence and four live
cartridges were recovered from Pai Vihar Hotel,
Bangalore where the appellant was staying is false
c because on 10/7/1995 at 11.30 p.m., the appellant
was brought to Delhi. On 12/7/1995, a remand
application was made before the Metropolitan
Magistrate's Court. In that application, it is stated
that the weapon used in the crime is to be
D ascertained and recovered. If the weapon was
already recovered, such averment would not have
been made in the application. Moreover, the
appellant was brought on the strength of a
production warrant issued by a Delhi Court and,
E therefore, he was in judicial custody. Section 27 of
the Evidence Act would not be, therefore, attracted.
In any case, no statement under Section 27 of the
Evidence Act was recorded. The alleged recoveries
are, therefore, not admissible. [Bahadul v. State of
F Orissa. 1} Mr. Anantnarayan, the appellant's
advocate was present in the hotel room when the
alleged recoveries were made. However, he has not
been examined. Similarly, PW-48 Srinivas Rao, the
Manager of the hotel and PW-50 Kancha, the
G waiter of the hotel were given-up after having
entered the witness box. Recoveries were made by
PW-81 10 Niranjan Singh of P.S. Connaught Place,
New Delhi in Bangalore i.e. outside his territorial
H 1. AIR 1979 SC 1262.
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 647
[RANJANA PRAKASH DESAI, J.]
jurisdiction. Therefore, provisions of sub-sections (4) A
and (5) of Section 165 of the Cr.P.C. ought to have
been followed. The licence which was allegedly
recovered from Pai Vihar Hotel, Bangalore had
expired on 18/1/1994 and its validity was extended
only on 15/10/.1995. Therefore, at the time of B
alleged recovery of revolver on 11 /7 /1995, there
was no valid licence. Yet, no action was taken by
the police. To cover up this, the validity of the license
was extended later on. If the licence was deposited
with Mohrar Malkhana with the seal of N.S., it is not c
understood how the entry of extension was made
on it on 1S/10/1995. This suggests tampering of
evidence.
(i) Recovery of the appellant's car from Malcha Marg
is suspect because no record of wireless message
0
has been produced; no one from P.S., Malcha Marg
was examined; no record of P.S., Malcha Marg has
been produced, no information was given to the
nearest Magistrate; no record showing presence of
PW-72 PC Mukesh Kumar was produced. E
According to the prosecution, the CFSL team was
called and blood sample was taken from the blood
stains in the dicky of the car. However, no witness
from the CFSL has been examined; no
photographs have· been produced and no F
independent witness has been examined. PW-72
PC Mukesh Kumar stated that PW-81 10 Niranjan
Singh remained at the site for six hours. PW-81 10
Niranjan Singh stated that he had received wireless
message about the car on 4/7/1995 at 9/10 a.m. G
Even if he had reached the site at 10.00 a.m. he
should have remained there till 4.00 p.m. He,
however, stated in his evidence that he reached the
said flat at 11;30 a.m. or 12.00 noon on 4/7/1995.
H
648 SUPREME COURT REPORTS [2013] 16 S.C.R.
A The seizure memo dated 4/7/1995 states that in the
dicky of the car, very little blood was detected. The
memo also states that the long hairs were found at
the back of the front seat next to the driver's seat.
If the prosecution case is true then the dicky ought
B to have a pool of blood and not very little blood and
the long hairs should have been· found in the dicky
a11d not on the back of the front seat next to the
driver's seat.
0) To prove the presence of the appellant at the
c tandoor in the night of 2/7/1995, the prosecution
has examined PW-1 Philips and PW-2 Mrs. Nisha.
They stated that they had last seen the appellant at
around 9.45 p.m. at the gate of Ashok Yatri Niwas
in his Maruti car. However, PW-3 HC Kunju stated
o· that he noticed the fire at 11.20 p.m. Therefore, the
presence of the appellant at around 10.00 p.m. at
the tandooris not of much importance. To prove his
presence at the tandoor at 11.30 p.. m. the
prosecution has also examined PW-4 Home Guard
E Chander Pal and CW-5 HC Majid Khan. It is
apparent from the evidence of PW-3 HC Kunju that
at the relevant time, the light at the Bagia
Restaurant was switched bff. The appellant was not
known to any of the witnesses. He was identified
F because PW-35 Mahesh Prasad had allegedly told
the witnesses about him. However, PW-35 Mahesh
Prasad has stated that he had never met the
appellant. It is doubtful whether PW-3 HC Kunju,
PW-4 Home Guard Chander Pal and CW-5 HC
G Majid Khan were actually present. They are from
P .S., Con naught Place. No record of P .S.,
Connaught Place, has been produced to show that
they were on duty at the relevant time. No record
has been produced to show that PW-3 HC Kunju
had sent wireless me·ssage about the incident. In
H
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 649
[RANJANA PRAKASH DESAI, J.]
fact, PW-59 ASI Sher Singh stated that the A
message was actually ~eceived from Constable
Rattan Singh. CW-5 HC Majid Khan of the PCR
was directed by the court to bring Log Book of the
vehicle - Victor 20 in which he claimed to have
gone to the restaurant. However, the record is B
stated to have been destroyed. Thus, most vital
contemporaneous record was kept back
intentionally. CW-5 HC Majid Khan also stated that
PCR Van did not enter the hotel and remained
parked outside. However, the register showing c
entry and exit of vehicles indicates that the PCR
Van entered the hotel. PW-35 Mahesh Prasad
stated that all entries were made in the register by
him as directed by the police at the poliGe station.
Thus, the prosecution story is shrouded in D
suspicion. The prosecution has not been able to
prove its case beyond reasonable doubt. The
appellant, therefore, be acquitte.d.
25. SUBMISSIONS ON BEHALF OF THE
RESPONDENT ON THE MERITS OF THE CASE. E
(a) Unnecessary doubt is sought to be created ·as
regards location of skull from 5/7 /1995 till 12/7/
1995. During trial no questions were asked and no
suggestions were put to the witnesses in this F
regard. Had that been done, the witnesses would
have offered explanation. In any case, there is
reliable and cogent evidence on record that the
skull was properly preserved and it was the skull
of the deceased.
G
(b) At one stage, the stand of the appellant was that
there was a possibility of implanting bullets on 12/ ·
7/1995 itself when the body was being taken to the
Civil Hospital for x~ray. A contrary stand is taken
in this Court that two bullets might have been put H
650 SUPREME COURT REPORTS [2013] 16 S.C.R.
A in the skull during the period 5/7/1995 to 12/7/1995.
This submission of the defen'ce deserves to be
rejected. There is no reason to disbelieve
independent evidence of the doctors who were part
of the Board of Doctors.
B
(c) A revolver was recovered from the custody of the
appellant from Bangalore on 11/7/1995. It was
brought to New Delhi along with the appellant on 12/
7/1995. The Report of the CFSL shows that the
bullets found in the skull were from the revolver of
c the appellant. There was no cross-examination on
the veracity of the said Report. The defence has not
stated what could be the motive for PW-81 10
Niranjan Singh or anyone else to falsely involve the
appellant. There was no enmity between them and
0 the appellant.
(d) The contention that the bullets recovered were not
deposited in the Malkhana must be rejected. One
lead bullet was deposited in the Malkahna on 5171
E 1995 by PW-81 10 Niranjan Singh. Two bullets (Ex-
36 and Ex-37) removed from the skull of the
deceased were duly sealed and handed over to the
police by PW-44 Dr. Bharat Singh immediately
after the post-mortem examination. As per the
F Register of the Malkhana, the two bullets recovered
from the skull of the deceased were deposited in
the Malkhana by PW-81 10 Niranjan Singh on 12/.
7/1995. They were received in the CFSL on 17/7/
1995 in sealed condition, as is evident from Ex-
PW70/A1-A9. The said bullets were also examined
G
by Dr. G.D. Gupta, Serologist, who confirmed that
the blood on the bullets was B+ve.
(e) Only one lead bulle!, five empty cartridges, one
piece of ply having one· hole of bullet and one air
H pistol were collected on 5/7/1995 after the site was
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 651
[RANJANA PRAKASH DESAI, J.]
inspected by PW-70 Roop Singh, the Ballistic A
Expert and also the Director of .the CFSL - PW-16
Dr. V.N. Sehgal. From memo (Ex-PW-16/A) which·
bears the signature of PW-16 Dr. V.N. Sehgal and
Inspector Ramesh, it is clear that only one lead bullet
(Ex-24) and five cartridges (Ex-25) were found at B
the said flat. It is not the case of the prosecution that
bullet recovered from the said flat was stained with
human blood.
(f) It is true that CW-6 Dr. Sarangi, who conducted the
post-mortem did not find any bullet injury but due to
c
the co.ndition of_the dead body the bunet injuries
might not have been detected by naked eyes at the
time of first post-mortem. The second post-mortem
Report clearly states that the firearm injuries were
ante-mortem. The evidence on record thus clearly D
establishes that firearm injuries were found on the
skull of the deceased. It is true that the Security
Regulations prohibit the carriage of weapons in the
passenger cabin but it was not impossible for the
appellant to have flown from Jaipur-Mumbai- E
Chennai carrying a revolver. There is no prohibition
in carrying the revolver in checked-in luggage. This
plea is also raised during arguments. The
witnesses were not confronted with it at the trial.
F
(g) The appellant has not established the plea of alibi.
Since the appellant pleaded alibi the burden was
on him to prove it. Since he has failed to prove alibi
an adverse inference is drawn against him. The
appellant was noticed at or around 10.00 p.m. or
G
11.00 p.m. in the night intervening 2nd and 3rd at
Bagia Restaurant with Car bearing No. DL-2CA-
1872. This is established by leading evidence of
reliable witnesses. That the deceased and the
appellant were last seen together on 2/7/1995 at the
H
652 SUPREME COURT REPORTS [2013] 16 S.C.R.
A said Flat No.8/2A is established by the evidence
of the neighbour of the appellant. PW-11 Mrs. R.K.
Chaudhary. PW-12 Matloob Karirrt and PW-82 R.N.
Dubey, the servant of the appellant have
established that the relations between the appellant
B and the deceased were strained. PW-81 10
Niranjan Singh who deposed about the condition of
the said flat and the recoveries made from the said
flat. He stated that recoveries were effected on 41
7/1995 in the presence of PW-13 Ohara S.ingh and
c PW-14 Inspector Suraj Prakash and, thereafter, the
said flat was locked and left under surveillance of
SHO, Mandir Marg and on 5/7/1995 the recovery
of one lead bullet, five cartridges, one ply with a
hole, one air pistol was made in the presence of
the Ballistic Expert - PW-70 Roop Singh and PW-
D
16 Dr. V.N. Sehgal, the Director of the CFSL. The
testimony of PW-13 Ohara Singh is supported by
the photos taken by PW-84 PC Balwan Singh. The
contention that photos taken during investigation
were not placed on record is contrary to the facts.
E Photographs of the burnt body are exhibited at Ex-
PW-74/9-16 and their negatives are at Ex-PW-74/
1-9, skull photographs are at Ex-PW-76/A15-A28
and their negatives are at Ex-PW-76/A1-A31 and
photographs of the said flat, female clothes etc.
F were placed on record at Ex-PW-76/A1-A14.
(h) The appellant absconded from Bagia Restaurant on
the night intervening 2/7/1995 and 3/7/1995 and
stayed at Gujarat Bhawan. He absconded from
G Delhi to Jaipur by taxi on 3/7/1995. On 4n/1995 he
travelled by air from Jaipur-Bombay and from
Bombay-Madras and, in the end, he went to
Bangalore from where he was apprehended by the
Bangalore Police on 10/7/1995. In the presence of
H the DCP of Bangalore Police, search of the
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 653
[RANJANA PRAKASH DESAI, J.]
briefcase and shoulder bag produced by the A
appellant was done and the revolver was recovered
from his possession. The Report of the CFSL states
that the damaged fired lead bullets recovered from
the head and the neck of the deceased and the
damaged fired lead bullet recovered from the B
carpet in the said flat were fired from the said
revolver. The hole in the ply was also caused by the
shot fired from the said revolver. Though the
incident in question was widely published the
appellant never sought to contact any one. c
Abscondence of the appellant is an important
circumstance and lends support to the case of the
prosecution. His conduct is relevant under Section
8 of the Indian Evidence Act. [Swamy
Shraddananda alias Murali Manohar Mishra v.
D
State of Kamataka 2}
(i) The car of the appellant bearing No.DL-2CA-1872
was found abandoned at Malcha Marg on 4/7/
1995. On information received by PW-81 10
Niranjan Singh, the same was seized. Dry human E
blood was found in the dicky of the said car. The
key of this car was recovered at the Pai Vihar Hotel
at Bangalore in the presence of the appellant and
his advocate. The testimony of PW-81 10 Niranjan
Singh about the recovery of the car at Malcha Marg F
has not been questioned in cross-examination.
Thus, all the circumstances clearly establisl:i the
prosecution case. The conviction of the appellant
deserves to be'confirmed.
ANALYSIS OF EVIDENCE IN LIGHT OF G
SUBMISSIONS OF THE COUNSEL.
26. We shall now consider the submissions of the counsel
2. (2007) 12 sec 288. H
654 SUPREME COURT REPORTS [2013] 16 S.C.R.
A in light of evidence on record. Since this is a case based on
circumstantial evidence, we must see whether chain of
circumstances is complete and points unerringly to the guilt of
the appellant. It is first necessary to see the background of the
case. The fact that the appellant and the deceased were staying
B at the said flat as husband and wife can hardly'be disputed.
PW-12 Matloob Karim, who was known to the appellant and
the deceased stated that in the year 1989, he was the
Qrganizing Secretary of Youth Congress. At that time, the
appellant was its President and the deceased was General
c Secretary of its Girls Wing. He stated that he knew the
deceased from 1984 when they were in the Students Union of
Delhi University and because of their close association, they
had fallen in love with each other. However, they could not marry
because they belonged to different religions. He stated that he
D got married in December, 1988. The deceased got married to
the appellant in the year 1992 and informed him about it. He
further stated that after her marriage, she was staying with the
appellant at the said flat. CW-1 Mrs. Jaswant Kaur, the mother
.of the deceased, CW-2 Sardar Harbhajan Singh, the father of
the deceased and PW-82 Ram Niwas Dubey, who was the
E personal servant of the appellant also confirmed this fact.
Pertinently, no suggestion was put to them in the cross-
examination that what they were saying was false. In this
connection, it is important to note that the DNA Report [Ex-PW-
87/A] confirms that the dead body which was burnt at Bagia
F Restaurant was that of the deceased, who was the biological
offspring of CW-1 Mrs. Jaswant Kaur and CW-2 Sardar
Harbhajan Singh. PW-11 Mrs. Chaudhary, a retired
Government servant, was staying along with her husband in Flat
No.8/2-B, which was in front of the appellant's Flat No.8/2-A.
G She stated that the appellant was living with his wife i.e. the
deceased in the said flat. Her husband PW-9 M.L. Chaudhary
·corroborated her evidence. According to PW-11 Mrs.
Chaudhary, the deceased was last seen with the appellant in
the evening of 2/7/1995 in the said flat. Though his statement
H recorded under Section 313 of the Cr.P.C., in answer to one
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 655
[RANJANA PRAKASH DESAI, J.]
of the questions, the appellant stated that he was the President A
of NSU(I); that he knew the deceased since 1985; that the
deceased was living with his parents at Gole Market and that
he had no contact with her after 1985, while answering another
question, he admitted that he was living with the deceased in
the said flat. PW-15 HC Amba Das was the beat constable of B
Mandir Marg Area at the relevant time. According to him, once
he had gone to the house of the appellant for verification of the
quarters. At that time, the appellant told him that he should take
care of the Car bearing No.DAC 3285 belonging to his wife
and his Car bearing No.DL-2CA-1872 as the vehicles were c
increasingly being stolen. According to him, the appellant also
told him that since during the day time they were out, he should
take care of their house. Admittedly, Car bearing No.DAC 3285
belonged to the deceased. It may be noted here that on 5/7/
1995, this car was seized by PW-81 10 Niranjan Singh when it
0
was parked below the said flat. We are, therefore, of the opinion
that the prosecution has successfully proved that the appellant
and the deceased were married and they were staying in the
said flat as husband and wife and that the deceased was last
seen in the company of the appellant in the said flat on the E
evening of 2/7/1995 by PW-11 Mrs. ChaudhaiY.
27. The appellant's connection with the Bagia Restaurant
is very crucial to the prosecution because the infamous tandoor
was situated there. The appellant has not disputed that the
Bagia Restaurant is run as per the agreement with the ITDC. F
In his statement recorded under Section 313 of the Cr.P .C., he
stated that his Manager at Bagia Restaurant was one Mr.
Handa and his Accountant was one Mr. Karan. He admitted that
A2-Keshav was employed in Bagia Restaurant. A2-Keshav has
also admitted this fact. Thus, the prosecution has successfully G
proved that the appellant was the owner of Bagia Restaurant.
28. From the evidence on record, it is clear that all was
not well between the appellant and the deceased. PW-12
Matloob Karim has admitted that the deceased and he were
H
656 SUPREME COURT REPORTS [2013] 16 S.C.R.
A in love with each other but they could not marry because they
belonged to different religions. His evidence indicates that he
got married to a Muslim girl in December, 1988. According to
him, the deceased told him that she had married the appellant
in the year 1992. He stated that even after his marriage, he and
B the deceased used to meet and talk. According to him, in
August,· 1989, the deceased told him to enquire about the
antecedents of the appellant. She told him that the appellant
had proposed to her. According to this witness, he had told her
that the appellant was not a good person. The deceased
C phoned him sometimes in the year 1992 and stated that she
had got married with the appellant and that prior to the
marriage, she had disclosed their friendship to the appellant.
Six months t~ereafter, he received a call from the deceased
stating that she was trapped; that the appellant was not a good
man and that he used to abuse and thrash her on trivial matters.
0
The deceased again phoned him and told him that the appellant
had thrown her out of their house. On 2/7 /1995 between 3.00
p.m. to 4.00 p.m., the deceased telephoned him and told him
to help her to migrate to Australia. The evidence of this witness
is criticized on the ground that he is not a person of good
E character because he admitted that even after marriage, he
continued to have relationship with the deceased. It is
contended that he was inimically disposed towards the
appellant and, therefore, he had falsely implicated him. We find
no substance in this submission. Assuming this witness loved
F the deceased and he continued to meet her after her marriage
with the appellant that, in our opinion, has no relevance. His
evidence has a ring of truth. By falsely implicating the appellant,
he would not have gained anything. In our opinion, this witness
i~ worthy of credence. PW-82 Ram Niwas Dubey's testimony
G also throws light on this aspect. His association with the
appellant began in the year 1989 when the appellant was the
President of Youth Congress (I). He was working as a peon
with him till April, 1995. He stated that the appellant obtained
the said flat in 1992. The appellant lived with his wife i.e. the
H
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 657
[RANJANA PRAKASH DESAI, J.]
deceased in the said flat. He knew the deceased since 1992 A
as she was the General Secretary of Youth Congress and used
to visit the appellant at his office at Talkatora. After the
appellant's marriage with the deceased, he was working with
the appellant and was living in the said flat. He stated that the
appellant and the deceased used to quarrel on the topic of B
marriage. The deceased used to ask the appellant as to when
he would make their marriage public. The appellant used to tell
her that he will disclose their marriage to the people at the
appropriate time. According to him, there used to be frequent
quarrels between the two and the appellant used to beat the c
deceased with legs, fists and dandaa. He further deposed that
as directed by the appellant, he used to accompany the·
deceased to keep a watch on her movements because the
appellant suspected her fidelity. The defence has not elicited
anything in the cross-examination of th.is witness, which can D
persuade us to discard his testimony. PW-11 Mrs. R.K.
Chaudhary, the neighbour of the appellant and the deceased,
stated that once when they were watching T.V .. in their house,
they heard a noise coming from outside. They opened the door
of the drawing room and saw that scuffle was going on between E
the appellant and the deceased. The deceased wanted to go
out of the house but the appellant was pulling her back inside
the house. This witness has no reason to concoct a story. She
appears to us to be a reliable witness. Though the father and
the mother of the deceased, the neighbours of the appellant and
the deceased and their servant knew that the appellant and the F
deceased were staying together and the parents of the
deceased stated in the court that the appellant and the
deceased were married to each other, the marriage was not
made public. The deceased wanted the marriage to be made
· public. The appellant was reluctant to do so and was suspecting G
her fidelity. On account of this suspicion, he used to quarrel with
her and beat her. He had asked PW-82 Ram Niwas Dubey to
keep watch over her movements and had also put restrictions
on her movements. On account of this, the deceased was
making efforts to leave him. It appears that perhaps the H
658 SUPREME COURT REPORTS [2013) 16 S.C.R.
A appellant did not want to make the marriage public because
the deceas~d was continuing her relationship with PW-12 .
Matloob Karim even after marriage. These circumstances
established by evidence adduced by the prosecution lead us
to conclude that there was a strong motive for the appellant to
B do away with the deceased. It was urged that the appellant was
deeply in love with the deceased and despite knowing her
relationship with PW-12 Matloob Karim, he did not drive her
out. He only restricted her movements because he wanted to
stop her from her wayward ways. He would have, therefore,
c never killed her. In our opinion, the appellant's love for the
deceased does not dilute the prosecution case on motive. In
fact, it strengthens it.
29. That there was fire in the Bagia Restaurant around
10.30 p.m. on 2/7/1995 and that, at that time, the appellant was
D present near the Bagia Restaurant is established by the
prosecution by leading reliable evidence. PW-7 Mrs. Anaro
Devi who was running a vegetable shop near Ashok Yatri
Niwas stated that two years back at about 11.30 p.m. on 2171
1995 when she was present at her shop, a fire broke out in
E Bagia Restaurant. One constable and home guard came there.
She informed them about the fire. PW-3 HC Kunju stated that
on 2/7/1995 he was posted as Constable at P.S., Connaught
Place. PW-4 Home Guard Chander Pal was with him. When
they reached near Ashok Yatri Niwas at about 11.20 p.m., they
F found that fjre had broken out in the Bagia Restaurant. He
rushed to the Police Post, Western Court and gave information
to the police through wireless. On reaching the spot, he saw
flames coming up from the Bagia Restaurant. He entered the
restaurant along with PW-4 Home Guard Chander Pal and saw
G A2-Keshav standing near the tandoor. He was putting pieces
of wood into the tandoor and was shuffling the same with a long
wooden stick. On enquiry, A2-Keshav told him that he was a
Congress Party worker and he was burning the old banners,
posters and waste papers, etc. of the Congress Party. In the
H meantime, the patrolling officer SI Rajesh Kumar, the staff of
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 659
[RANJANA PRAKASH DESAI, J.]
PCR and security officials Rajiv Thakur and PW-35 Mahesh A
Prasad also came there. According to him, he saw the appellant
near the gate of the' Bagia Restaurant. PW-35 Mahesh Prasad
told him that the appellant was the owner of the Bagia
Restaurant. PW-3 HC Kunju identified the appellant at the
police station as the same person whom he had seen at the B
gate of the Bagia Restaurant. PW-4 Home Guard Chander Pal
stated that on 2/7/1995, when he was on patrolling duty along
with PW-3 HC Kunju, they reached Ashok Yatri Niwas at about
11.30 p.m. They saw fire at the Bagia Restaurant. PW-3 HC
Kunju went and phoned th.e police station and came back. Both c
of them scaled the wall and entered the Bagia Restaurant for
extinguishing the fire. They saw A2-Kesahv trying to stoke the
fire with the help of a wooden stick. When asked, A2-Keshav
told them that he was burning the old banners and posters of
the Congress Party. He further stated that the appellant was D
standing there wearing white coloured kurta pyjama. He was
so informed by PW-35 Mahesh Prasad. He further stated that
the appellant came near the tandoor and shuffled the fire with
wooden stick and, thereafter, he left from there. He stated that
he identified the appellant at the police station. CW-5 HC Majid E
Khan deposed that in the night of 2/7/1995, he was on duty on
PCR vehicle driven by Raribir Singh. They went to Ashok Yatri
Niwas for drinking Vl!ater and there theinoticed the fire in Bagia
Restaurant. They went towards the gate of Bagia Restaurant.
There was a kanat fixed at the gate and one man was standing
there. The man told them that they were burning the old banners F
and waste papers and flags of Congress Party and that he was .
the leader of Youth Congress. PW-35 Mahesh Prasad then told
them that that man was the owner of Bagia Restaurant and his
name was 'Sushi! Sharma'. According to him, A2-Keshav was
stoking the fire. He stated that A2-Keshav was apprehended G
at the spot. PW-1 Philips's evidence is also important. He was
working as a Stage Programmer in Bagia Restaurant. This fact
is confirmed by PW::5 K.K. Tuli, the General Manager of Bagia
Restaurant. According to PW-1 Philips, on 2/7/1995,~he,.was
on duty from 8.00 p.m. to 12.00 midnight. He stated that he and'<H
660 SUPREME COURT REPORTS [2013] 16 S.C.R.
A his wife PW-2 Mrs. Nisha were to stage a performance on that
day. One guest had come to see him. He had gone to see off
that guest at 9.30 p.m. or 9.45 p.m. When he came back, he
saw the appellant coming there in Maruti Car No.1872. After
5-7 minutes, A2-Keshav asked him to stop the programme and
B go back to his house as his duty was over. He obeyed and left
for his house along with his wife PW-2 Mrs. Nisha. While going,
he saw the appellant sitting in his Maruti car which was standing
at the gate. PW-2 Mrs. Nisha corroborat.:d PW-1 Philips. She
stated that she had seen the appellant at about 10.15 p.m. at
c the gate of Bagia Restaurant in Maruti Car No.1872. PW-5 K. K.
Tuli, General Manager of Bagia Restaurant stated that around
the time when the incident occurred, the appellant used to visit
the Bagia Restaurant every day. All these witnesses have stood
firm in the cross-examination.
D 30. PW-3 HC Kunju stated that since foul smell was
emanating from the tandoor, he and SI Rajesh Kumar went near
the tandoor out of suspicion. They saw a human body whose
hands and feet were completely burnt and whose intestines
were protruding out from the stomach in the tandoor. On a close
E look, they found that the dead body was of a female. PW-4
Home Guard Chander Pal corroborated PW-3 HC Kunju on this
aspect. He stated that a body of a woman was found lying in
the tandoor. It's bones were cut and intestines were protruding.
PW-5 K.K. Tuli, the General Manager of Ashok Yatri Niwas
F stated that on receiving telephonic information from the security
staff, he went to the Bagia Restaurant and found a dead body
of a woman in burnt condition lying amongst the wood pieces
in tandoor. There is no challenge to these statements of the
witnesses in the cross-examination. On receiving information,
G senior police officers including PW-81 10 Niranjan Singh
reached the spot. Photographs of the dead body were taken
by PW-74 HC Hari Chand. He produced the photographs of
the dead body (Ex-PW-74/9 to 16) and negatives thereof (Ex-
PW-74/1 to 8). PW-75 Inspector Jagat Singh and PW-81 10
H Niranjan Singh have also deposed about it. A2-Keshav was
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 661
[RANJANA PRAKASH DESAI, J.)
handed over to PW-81 10 Niranjan Singh. PW-81 10 Niranjan A
Singh recorded the statement of PW-3 HC Kunju, which was
treated as FIR. In the FIR, PW-3 HC Kunju narrated all the
events which took place after he reached the Bagia Restaurant
till his statement was recorded. It is necessary to note here that
he specifically mentioned about the presence of the appellant. B
He made it clear that he was informed about the appellant's
presence by the Security Guard PW-35 Mahesh Prasad. He
stated that the Security Guard PW-35 Mahesh Prasad told him
that the appellant, who is the owner of the Bagia Restaurant was
standing there. He noted the presence of the appellant and A2- c
Keshav. He stated that A2-Keshav was detained, however, the
appellant had run away. He also stated about the finding of burnt
body of an unknown lady in the tandoor.
31. It must be mentioned here that PW-35 Mahesh Prasad
has not supported the prosecution on this aspect. He stated that D
he had not seen the appellant on that day at the Bagia
Restaurant. It appears that he was won over by the defence.
Tenor of his evidence suggests that he was hiding the truth and
· favouring the appellant. The trial court has rightly commented
on his demeanor and stated that his demeanor indicates that E
he was won over by the appellant. In the circumstances, we see
no reason to disbelieve PW-1 Philips, PW-2 Mrs. Nisha, PW-
. 3 HC Kunju, PW-4 Home Guard Chander Pal and CW-5 HC
Majid Khan. In any case, even if we leave the evidence of PW-
3 HC Kunju, PW-4 Home Guard Chander Pal and CW-5 HC F
Majid Khan out of consideration on this aspect, the evidence
of PW-1 Philips and PW-2 Mrs. Nisha establishes the
presence of the appellant at the Bagia Restaurant at the relevant
time in the night of 2/7/1995 at around 10.15 p.m. Some
controversy is sought to be created as to whether PCR Vehicle G
entered the Bagia Restaurant or not because the log book of
the PCR Vehicle was not produced. We have no manner of
doubt that this discrepancy is created by PW-35 Mahesh
Prasad, who was won over by the appellant. It needs to be
ignored. In our opinion, whether the PCR vehicle entered the H
662 SUPREME COURT REPORTS [2013) 16 S.C.R.
A Bagia Restaurant or was parked outside is not a material
circumstance. The presence of the witnesses is well
established. It is, therefore, not necessary to dwell on this point.
On the basis of the evidence discussed above, we are satisfied
that the prosecution has established the presence of the
B appellant at the Bagia Restaurant at around 10.30 p.m. on 2/
7/1995. It has also established that a· dead body of a woman
in burnt condition was found lying in the tandoor.
32. PW-81 10 Niranjan Singh started investigation and
after holding inquest, sent the dead body to RML Hospital. We
C have already referred to PW-85 Dr. Joginder Pal, who stated
that on 3/7/1995 an unknown female body was brought to the
RML Hospital at 6.20 a.m. He examined the dead body. In his
Report (Ex-PW-85/A) he noted the condition of the charred
body. PW-12 Matloob Karim identified the dead body as that
D of the deceased on 5/7/1995 at RML Hospital. DNA Report
established that the dead body was of deceased Naina Sahni,
who was the daughter of CW-1 Mrs. Jaswant Kaur and CW-2
Sardar Harbhajan Singh. Thus, the prosecution has successfully
established that the dead body was of Naina Sahini, wife of
E the appellant.
33. Post-mortem of the dead body was conducted by CW-
6 Dr. Sarangi on 5/7/1995. We have reproduced the
observations ·noted by CW-6 Dr. Sarangi in his post-mortem
F report, hereinabove. That the death was homicidal is
established and is not disputed. In this case, the medical
evidence assumes great importance. We shall discuss it, in
detail, a little later.
34. We shall now go to the search of the said flat. PW-81
G 10 Niranjan Singh stated that on 3/7/1995 at about 3.00 p.m.,
he went to the said flat along with A2-Keshav, but it was found
locked. On 4/7/1995 at about 11.30 a.m. / 12.00 noon, he
reached the said flat. The said flat was under the surveillance
of PW-14 Inspector Suraj Prakash. It was forced open under a
H panchanama. Certain bloodstained articles like cloth pieces,
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 663
[RANJANA PRAKASH DESAI, J.]
chatai and piece of carpet were seized from the said flat under A
a panchnama. He found five empty cartridges, a lead bullet, an
air pistol and a ply in which there was a hole caused by the
bullet. According to him, he did not take possession of these
articles because the Ballistic Experts were ·not present. On 5/
7/1995, he visited the said flat along with PW-70 Roop Singh, B
the Ballistic Expert, and PW-16 Dr. V.N. Sehgal, Director of
the Cf SL and in their presence five empty cartridges, one lead
bullet, an air pistol and a ply having bullet hole were seized and
panchnama (Ex-PW-16/A) was drawn. It was signed by PW-
16 Dr. V.N. Sehgal and Inspector Ramesh Chander. PW-16 c
Dr. V.N. Sehgal has confirmed that on 5/7/1995 at about 12.00
noon, on a request made by the police, he visited the said flat
along with PW-70 Roop Singh. He stated that he entered the
said flat along with PW-70 Roop Singh and PW-81 10 Niranjan.
Singh. PW-70 Roop Singti collected five empty cartridges, one D
lead bullet, one piece of ply having a hole in it and one air pistol.
He further stated that the seized articles were sealed and the
memo was prepared, which is at Ex-PW-16/A. PW-81 10
Niranjan Singh has also spoken about the seizure memo [Ex-
PW-16/A] on which he obtained signatures of PW-16 Dr. V.N. E
Sehgal and Inspector Ramesh Chander. PW-67 HC Raj
Kumar, in-charge of Malkhana has deposed about the parcels
of the seized articles received by him on 5/7/1995. He stated
that on 17/7/1995, SI Rakesh Ahuja took all the parcels to the
CFSL. Thus, seizure of five empty cartridges,. one lead bullet,
a ply with a hole on it from the said flat on 5/7/1995 is proved. F
It is also proved that the said seized articles were qeposited
in Malkhana on 5/7/1995 and were sent to the CFSL on 17/7/
1995.
35. PW-70 Roop Singh, the Ballistic Expert has stated G
about receipt of the seized articles from SHO, P.S., Con naught
Place on '17/7/1995. He has spoken about the examination of
the said articles sent to his laboratory and the result thereof. It
is true that in his evidence, he has not stated anything about
his visit to the said flat on 5/7/1995 or the finding of cartridges, H
664 SUPREME COURT REPORTS [2013] 16 S.C.R.
A lead bullet and ply with a hole in the said flat, which has been
stated by PW-16 Dr. V.N. Sehgal and PW-81 10 Niranjan Singh.
From this, it cannot be concluded that he was not present in
the said flat on 5/7/1995. Obviously, being a Ballistic Expert,
he has only concentrated on the result of examination conducted
B in his laboratory. No adverse inference can be drawn from his
not mentioning finding of cartridges, lead bullet, etc. from the
said flat on 5/7/1995. It is true that PW-14 Inspector Suraj
Prakash has admitted that in his statement recorded under
Section 161 of the Cr.P.C., he has not referred to the seizure
c of cartridges, bullets, etc. However, his evidence makes it clear
that his statement W?S recorded at the spot when the recoveries
of other articles were made i.e. on 4/7/1995. He stated that his
supplementary statement was not recorded. Since, the seizure
of the said articles was made on 5/7/1995 that too in his
absence, there was no question of his mentioning about the
0
recoveries of cartridges, etc. in his statement recorded on 4/
7/1995. He stated in his evidence that the said articles were
there in the said flat but they were not seized because the
Ballistic Expert was not there. The fact that statement of ·this
witness was recorded on 4/7/1995 is also stated by PW-81 10
E Niranjan Singh. Therefore, this circumstance cannot be taken
against the prosecution.
36. It is argued that in the recovery memo dated 4/7/1995,
there is no mention of recovery·of empty cartridges, lead bullet,
F etc. and, therefore, PW-81 10 Niranjan Singh's version
regarding recovery of empty cartridges and lead bullet is
falsified. This submission deserves to be·rejected without
hesitation because the recovery was effected on 517 /1995
under panchnama (Ex-PW-16/A). These articles were not
G seized on 4/7/1995. Therefore, they cannot find mention in the
panchnama dated 4/7/1995. Recovery Memo dated 5/7/1995
clearly talks about recovery of cartridges, lead bullet, a piece
of ply having a hole of a bullet and an air pistol. It is true that
PW-13 Ohara Singh has not stated that on 4/7/1995 any
H cartridges or lead bullet were found in the said flat. However,
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 665
[RANJANA PRAKASH DESAI, J.]
PW-14 Inspector Suraj Prakash who had accompanied him and A
PW-81 10 Nira,njan Singh have stated so. Therefore, non-
mentioning of this fact by PW-13 Ohara Singh is of no
consequence. Both PW-14 Inspector Suraj Prakash and PW-
81 10 Niranjan Singh have stated that the said cartridges, etc'.
were not seized on 4/7/1995 because the Ballistic Expert was B ·
not present. Therefore, we feel that absence of any memo in
this regard does not affect the prosecution case adversely. It
is stated in the written submissions that two lead bullets were
recovered from the said flat. This statement is factually incorrect.
All the witnesses have stated that only one lead bullet was c
recovered from the said flat and that is confirmed by the
panchnama (Ex-PW-16/A). We are also not impressed by the
submission of the appellant's counsel that at least ten rounds
must have been fired in the said room and the neighbours
should have therefore spoken about it. That, ten rounds must 0
have been fired is a speculation of the counsel. But, assuming
that to be so, it is common knowledge that neighbours
generally would not want to get involved in such cases. Th.ere
is always an effort to disassociate oneself from such incidents
for fear of getting entangled in court cases. Not much can be E
made out of this conduct of the neighbours. It is pertinent to note
that PW-81 10 Niranjan Singh stated that when he asked the
neighbours to become witnesses in the proceedings of the
house search, they refused and stated that it is not proper to
give evidence in a murder case. It appears that somehow two
neighbours agreed to depose in the court, but considering the F
general apathy of the people towards associating themselves
with such incidents, their not referring to any sound of firing
cannot be taken against the prosecution. Moreover, it is quite
possible that since the flats were closed, sound did not travel
from one flat to the neighbours' flat. We, therefore, reject this G
submission.
37. It was argued that the lead bullet which was found in
the said flat was blood stained. This is not correct. Seizure
. Memo [Ex-PW-16/A] regarding the seizure of articles from the H
666 SUPREME COURT REPORTS [2013] 16 S.C.R.
A said flat on 5/7/1995 states that one lead bullet was seized. It
does not say that the said lead bullet was stained with blood.
PW-81 10 Niranjan Singh stated that on 517/1995 he seized one
lead bullet from the said flat. He makes no reference to any
blood being found on it. PW-16 Dr. V.N. Sehgal, Director,
B CFSL who was present when the articles were seized on 5171
1995 stated that one lead bullet was recovered from the said
flat. He nowhere stated that it was blood stained. PW-70 Roop
Singh, Ballistic Expert stated that he received one lead bullet
among others for examination on 17/7/1995. He stated that the
c lead bullet recovered from the said flat was fired through .32
revolver [W-2]. It is pertinent to note that this is the same revolver
which was seized from the room of the appellant at Pai Vihar
Hotel, Bangalore. He further stated that the hole on the ply was
found to have been caused by the said lead bullet recovered
from the said flat. He however did not state that it was blood
0
stained. CFSL Report dated 27/7/1995 also does not state that
the said bullet was blood stained. Therefore, it is clear that it
is not the case of the prosecution that the lead bullet seized
from the said flat on 517 /1995 was stained with blood.
Therefore, all the submissions based on the assumption that
E bullet found in the said flat was blood stained are rejected.
38. PW-81 10 Niranjan Singh has stated that on 4/7/1995
at about 9.10 a.m., a wireless message was received by him
that Car bearing No.DL-2CA-1872 was parked at Malcha
F Marg. He along with the staff reached near Malcha Marg
Market. The said car was parked on the road. The CFSL team
was called for inspection of the car. Car was then inspected.
The dry blood lying in the dicky of the car was scratched, kept
in a polythene packet, converted into a parcel and sealed.
G Many long hair were lifted from the back of the front left seat of
the car, kept in a parcel and sealed. A memo being Ex-PW-
60/B was prepared which bears this out. The recovery of the
appellant's car is a!tacked on the ground that no record of
wireless message has been produced; no one from P.S.
H Malcha Marg was examined; no record of P.S. Malcha Marg
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 667
[RANJANA PRAKASH DESAI, J.]
has been produced; no information was given to the nearest A
Magistrate and no record showing presence of PW-72 PC
Mukesh of P.S. Chanakyapuri was produced. It is also stated
that no witness from the CFSL has been examined; no
photographs have been produced and no independent
witnesses have been examined. In our opinion, it was not B
necessary to produce the record showing presence of PW-72
PC Mukesh. We find_him to be a truthful witness. In his evidence,
PW-72 PC Mukes-hclearly stated that on 4/7/1995, the said car
was found abandoned near Gujarat Bhavan. He also deposed
that before leaving the police station for patrolling duty, he was c
given number of the said-car by SHO saying that it was involved
in the murder case of P.S. Connaught Place and he should look
for the said car. In view of the clear testimony of PW-72 PC
Mukesh, it was not necessary to produce other record to
support seizure of the car. There is no reason to disbelieve him. D
PW-81 10 Niranjan Singh has stated that the blood stains found
in the dicky were scratched and sample thereof was taken.
Therefore, even if no witness from the c·FSL has been
examined to depose about this or no photographs have been
produced, that has no adverse effect on the prosecution case.
Some advantage is sought to be drawn from the discrepancies E
in the time as regards receipt of wireless message from PW-
81 10 Niranjan Singh and the estimate of time given by PW-72
PC M~kesh regarding PW-81 10 Niranjan Singh's presence at
· the site and the time given by PW-8.1 10 Niranjan Singh as to
when he reached the said flat after taking samples from the F
appellant's car. The estimate of time given by the witnesses
differ and may, at times, conflict. When there are telltale
circumstances on record clearly supporting the prosecution
case, assuming there are some discrepancies in the evidence
of witnesses as regards time, it would not make any dent in G
the prosecution story. The argument that in the dicky there ought
to have been a pool of blood, will also have to be rejected. PW-
75 Inspector Jagat Siagh in his evidence stated that from the
spot, a polythene sheet/tarpaulin bearing stains of blood on one
side and scratch marks on the lower side was taken in H
668 SUPREME COURT REPORTS [2013] 16 S.C.R.
A possession under seizure memo [Ex-PW-75/1]. The body must,
therefore, have been well covered in polythene sheet to hide it
and, hence, there was no pool of blood in the dicky. This also
explains why there was no trail of blood on the staircase or on
the road. Blood was, however, found in the said flat.
B
39. The CFSL Report dated 27/7/1995 states that the hair
recovered from the back of the left front seat of the said car
were identified to be of human origin. However, no opinion could
be given as to whether they were of the deceased. From the
dicky, no human hair were recovered possibly because the
C dead body was properly covered. This circumstance appears
to us to be totally innocuous and no advantage can be drawn
from it by the defence. So far as the sample of blood found in
the dicky of the said car is concerned, the CFSL Report while
confirming that it was blood, stated that the blood group could
D not be analysed. There is no positive finding that the blood
detected was not found to be 'human' blood. The submission
that the blood detected in the dicky was found not to be 'human'
blood is contrary to facts. Seizure of the appellant's car which
was found abandoned at Malcha Marg with dry blood in the
E dicky establishes the prosecution case that the said car was
used by the appellant to carry the dead body to the Bagia
Restaurant. It is further established that after leaving Bagia
Restaurant on arrival of police, he came to Malcha Marg and
parked the car there.
F
40. The evidence on record establishes that after
committing the murder, the appellant spent the night at Gujarat
Bhawan situated at Malcha Marg. Thereafter, the appellant was
on the run. PW-81 10 Niranjan Singh's evidence throws light on
G it. It appears that while in Madras, the appellant having come
to know that the police were looking for him, obtained
anticipatory bail. On an application filed by the prosecution, the
anticipatory bail was cancelled. According to PW-81 10
Niranjan Singh, he learnt that on 10/7/1995, the appellant was
arrested by PW-46 Inspector Gangadhar of the Bangalore
H
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 669
[RANJANA PRAKASH DESAI, J.]
Police. PW-81 10 Niranjan Singh got the production warrant A
issued from the concerned Magistrate by filing Application [Ex-
PW-81/X-6]. On 11/7/1995, he along with his colleague reached
Bangalore and took custody of the appellant. The appellant led
them to Room No.110 of Hotel Pai Vihar where he was staying
along with his advocate Mr. Anantanarayan. From Room B
No.110, a briefcase was recovered. In the briefcase, there was
a revolver of Arminius make of .32 bore. There were four live
cartridges, arms licence, passport and other documents. A key
of a Maruti Car was also found from the briefcase and the same
was also taken charge of and marked Ex-PW-81/X-10. All the C
articles were seized and seizure memo [Ex-PW-47/A] was
drawn. The appellant was then brought to New Delhi. PW-81
10 Niranjan Singh has clearly stated that he informed the
security personnel at the airport about the recovered revolver
and the cartridges, while bringing the appellant to New Delhi D
by air.
41. No advantage can be drawn by the appellant from the
fact that in the remand application dated 12/7/1995, it was
stated that the weapon used in the crime had to be ascertained
and recovered, though a revolver had been recovered on 10/ E
7/1995. It must be borne in mind that the said remand
application was made at an early stage of investigation. When
the remand application was made, the police had not
ascertained from the CFSL whether the revolver recovered at
Bangalore was used by the appellant. Therefore, the said F
averment does not affect the veracity of recovery evidence. As
regards the criticism that there is no statement of the. appellant
recorded under Section 27 of the Evidence Act and, therefore,
recoveries made at Bangalore become inadmissible is
concerned, it must be stated that it is not the prosecution case G
that any statement of the appellant was recorded under Section
27 of the Evidence Act. The revolver was recovered during
inve:;;tigation. Pertinently, the CFSL Report has established the
link between the revolver recovered from the hotel room at
Bangalore and the bullets found in the skull of the deceased.
H
670 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Evidence of police witnesses on this aspect is cogent and
reliable. We find no reason to discard it. We may add here that
in his statement recorded under Section 313 of the Cr.P.C. the
appellant admitted that he possessed .32 bore Arminius
revolver. But he stated that police recovered it from his
B residence at Maurya Enclave when he was at Tirupati. The
appellant has not led any evidence to prove that he was staying
at Maurya Enclave. His parents did not step in the witness box.
This story is rightly disbelieved by the High Court. Thus, the
appellant's admission that he possessed .32 bore Arminius
C revolver goes a long way amongst other circumstances in
establishing his guilt.
42. Alleged non-compliance with procedural requirements
laid down in Cr.P.C. by PW-8f 10 Niranjan Singh who was
conducting investigation outside his jurisdiction assuming to be
D true, is an instance of irregularity in investigation which has no
adverse impact on the prosecution case. It is true that Mr.
Anantanarayan, the advocate was not examined. It is also true
that PW-48 Srinivas Rao, the Manager of Pai Vihar Hotel and
PW-50 Kancha, the waiter of the said hotel were given up by
E the prosecution. Mr. Anantanarayan being advocate of the
appellant was not expected to support the prosecution. It
appears that, therefore, he was not examined. So far as PW-
48 Srinivas Rao is concerned, he was not examined by the
prosecution because he was won over by the appellant. PW-
F 50 Kancha was not examined by the prosecution because he
had difficulty in understanding Hindi and English. These
witnesses are therefore, of no use to the prosecution. However,
the prosecution case is substantiated by the evidence of PW-
81 10 Niranjan Singh, PW-55 ACP Raj Mahinder Singh of Delhi
G Crime Branch and PW-47 Cl Gowda of Hauze Kote Police
Station, Bangalore. We find them to be truthful. There is no
presumption that evidence of police witnesses is always tainted.
No evidence has been brought on record to suggest that they
bore any grudge against the appellant and, hence, wanted to
H falsely involve him. In our opinion, recoveries made at
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 671
[RANJANA PRAKASH DESAI, J.]
Bangalore are proved beyond reasonable doubt. A
43. So far as recoveries of bloodstained clothes at the
instance of the appellant from bushes near Gujarat Bhawan and
from Rangpuri area are concerned, the trial court has not relied
upon the recovery made from the area near Gujrat Bhawan. The B
High Court has found no reason to discard the recovery made
from Rangpuri area. In our opinion, even if these recoveries are
kept out of consideration, there is enough other evidence on
record which establishes the guilt of the appellant. It is therefore,
not necessary to dwell on the said recoveries.
c
44. Counsel for the appellant has stated that according to
·the prosecution on 11/7/1995, a revolver and arms licence were
recovered from the hotel room of the appellant at Pai Vihar,
Bangalore. The same were put in a parcel sealed with the seal
of N.S. It is submitted that on 15/1011@95, the licence period D
was extended to cover up the lacunae and an entry was made
on the seized licence to that effect and this suggests tampering.
We find no substance in this allegation. It appears from the
evidence that the appellant had made an application for
extension of licence on 18/1/1994 which was granted on 15/ E
10/1995 by PW-55A ACP Ram Narain. The evidence on
record indicates that what was recovered on 11/7/1995.-ls
licence (Ex-PW-47/E) and according to PW-55A, ACP Rar:n
Narain, he made the entry of extension dated 15/10/1995 on
the licence (Ex-PW-55/.h.). There is, therefore, no question of F
tampering with the seized licence. Besides, no question was
put to any of the officers about the co-relation betw~en the said
two exhibits. In any case, expiry of arms licence has nothing to
do with the core of the prosecution case. We reject this
submission. G
45. We shall now go to the medical evidence. We have
already reproduced the observations made by PW-85 Dr.
Joginder Pal in his Medico Legal Report after he received the
dead body. We have also reproduced the relevant portions of
the post-mortem notes and the cause of death given by CW-6 H
672 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Dr. Sarangi. According to CW-6 Dr. Sarangi, the cause of
death was hemorrhagic shock consequent to various ante-
mortem injuries found on the dead body. He has opined that
·the burns present on the said body must be probably inflicted
after the death. It was argued that it is doubtful whether the death
B was caused due to firearm injuries. It was pointed out that PW-
85 Dr. Joginder Pal, the Casualty Medical Officer at RML
Hospital has stated that he did not find any firearm injuries in
the neck or in the head or in the nape of the deceased.
Moreover, CW-6 Dr. Sarangi also did not notice any bullet mark
c or bullet present in the dead body. In fact, he stated that the
brain matter was intact. Doubt was cast on the opinion of the
Board of Doctors, who extracted the two bullets and opined that
those two bullets caused death. It was argued that the skull from
which bullets were recovered was not the skull of the deceased.
D We have no hesitation in rejecting all these submissions which
are aimed at creating doubt about the Report of the Board of
Doctors.
46. So far as PW-85 Dr. Joginder Pal is concerned,
admittedly, he did not conduct the post-mortem. He conducted
E superficial examination of the dead body. Obviously, therefore, .
he did not notice any firearm injlJfY in the neck or in ttie head
or in the nape of the deceased. It is true that CW-6 Dr. Sarangi
did not notice any evident bullet marks or the bullets embedded
in the skull. Possibly the bullets were so embedded that they
F were not visible to the naked eye. In this connection, it is
necessary to turn to PW-81 10 Niranjan Singh's evidence. He
stated that as he found empty cartridges, a lead bullet and a
bullet hole on a ply in the said flat, he suspected that a firearm
must have been used in this incident. Therefore, he requested
G CW-6 Dr. Sarangi to conduct X-ray examination of the dead
body. However, X-ray examination was not conducted. These
facts were mentioned by him in letter (Ex-PW-81/X-11). Since
no X-ray examination was done on 9/7/1995, he discussed the
need of having a second post-mortem with the DCP, New Delhi
H and ACP, Connaught Place. He wrote a letter containing queries
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 673
[RANJANA PRAKASH DESAI, J.]
about re-post-mortem and handed it over to PW~57 SI Ombir A
1
Singh and directed him to hand over the same-to the Board of
Doctors. According to him, on 9/7/1995, he had requested Dr.
Aditya Arya, DCP for constitution of Board of Doctors. Copy
of the letter to Dr. Arya is at Ex-PW-81/X-11. The
Commissioner requested the Lt. Governor and by the order Qf B
Lt. Governor of New Delhi, the Board of Doctors was
constituted. PW-44 Dr. Bharat Singh, PW-68 Dr. T.D. Dogra
and Dr. S.K. Khanna were selected as members of the Board.
On 12/7/1995, at about 10.30 a.m., the members of the Board
of Doctors reached the Lady Hardinge Mortuary to conduct c
second post-mortem. CW-6 Dr. Sarangi was also there and he
had a conversation with them. Second post-mortem report (Ex-
PW-44/A) indicates that it ·Was partly conducted at Lady
Hardinge Mortuary and thereafter the body was shifted to the
Civil Hospital for X-ray. Skull was X-rayed. X-ray revealed two
D
bullets embedded in the skull.
47. In our opinion, when PW-81 10 Niranjan Singh had
requested CW-6 Dr. Sarangi to get the dead body X-rayed, he
should have got the X-ray examination done. He gave an
excuse that the X-ray examination was not done because the E
portable X-ray machine available at Lady Hardinge Medical
College was not functioning. Assuming this to be true, in a
serious crime like this, he should have immediately taken the
dead body to the Civil Hospital for X-ray examination. It is
pertinent to note that to a court question, he has stated that he F
was making sincere efforts to get X-ray of the dead body done
in the X-ray department in consultation with the Medical
Superintendent of the hospital. However, before he could
complete any such endeavour, the body was taken away by
PW-81 10 Niranjan Singh for further examination by some other G
doctors at some other hospital. There is nothing on record to
show that CW-6 Or. Sarangi made any .grievance about this
fact. In fact, he admitted that in the post-mortem report, he did
not mention these facts nor did he take any action against PW-
81 10 Niranjan Singh. When asked whether he had taken any H
674 SUPREME COURT REPORTS (2013] 16 S.C.R.
A action, CW-6 Dr. Sarangi changed his stand and stated that
he thought that what PW-81 10 Niranjan Singh was doing was
in the furtherance of "good justice". He has indeed contradicte9
himself. If he thought that the dead body was suddenly
withdrawn and he was keen on X-raying it, then he ought to have
B written a letter to that effect to the Commissioner of Police and
to the hospital authorities and he ought to have made complaint
against PW-81 10 Niranjan Singh. He did nothing. In fact, at one
stage he stated that the necessity of X-ray examination was not
realized by him because he did not notice any bullet marks and
c at another stage he suggested that he wanted to get the dead
body X-rayed. When he was asked as to whether a bullet can
be put inside the body after death at the place where it has
been noticed by the Board, he stated that the possibility could
not be absolutely ruled out especially in the presence of multiple
D post-mortem cracks and separation of the skull bone from the
neck for the purpose of superimposition. Thus, CW-6 Dr.
Sarangi in his evidence has tried to cast a doubt on the entire
investigation and the Board of Doctors. The trial court severely
commented on the conduct of CW-6 Dr. Sarangi. The High
E Court, however, expunged those remarks. Since the High Court
has expunged those remarks, we would not like to reopen the
issue. But we find it extremely difficult to reject the opinion of
the Board of Doctors on the basis of his evidence. Eminent
doctors were members of the Board of Doctors. They had no
reason to falsely implicate the appellant.
F
48. We would also like to make it clear that there is
absolutely no reason to doubt the prosecution case tha.t the skull
of which X-ray was taken was that of the deceased. CW-6 Dr.
Sarangi stated that on the request of PW-81 10 Niranjan Singh,
G the skull bone was separated for superimposition. PW-81 10
Niranjan Singh stated that he received the skull on 5/7/1995.
He stated that at the time of post-mortem, he gave application
dated 5/7/1995-to the Autopsy Surgeon for preserving the skull
for superimposition. Thus, the skull was merely separated for
H the purpose of superimposition but remained in the mortuary
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 675
[RANJANA PRAKASH DESAI, J.]
along with the dead body. The first post-mortem report dated A
5/7 /1995 records that the skull was preserved for
superimposition. The skull along with the body remained in the
mortuary of Lady Hardinge Medical College after the first post-
, mortem and was not sent for superimposition. On application
· dated 9/7/1995 submitted by PW-81 !0 Niranjan Singh, an B
order was passed for the second post-mortem. This application
shows that though a request was made for· skull
superimposition test, the dead body with its head was still
preserved in the Lady Hardinge Medical College mortuary and
process of superimposition had not started tilr then. The second c
post-mortem report records that the body was kept in the
mortuary of Lady Hardinge Medical College in a plastic bag and
was taken out from the same. It was a dead body with the skull
separated. The evidence clearly shows that the separated skull
remained along with the body in the mortuary of the Lady . D
Hardinge Medical College from 5/7/1995 till 12/7/1995. The
second post-mortem was conducted on 12/771995. During the
second post-mortem, the dead body was taken to Civil Hospital
for X-ray and, thereafter, it was brought back to the Lady
Hardinge Mortuary, Tt:ie body along with the skull was later taken E
to AllMS for conducting superimposition. The defence has not
been able to create any doubt in our minds that the skull was
not that of the deceased. Minor discrepancies, if any, in the
evidence of witnesses are natural in a case of this type. They
will not have any adverse impact on the basic case of the
prosecution which is borne out by cogent and relia?le evidence. F
49. The second post-mortem report states that the body
was kept in the mortuary of Lady Hardinge Medical College in
a plastic bag and was taken out from the same in the presence
Board of Doctors. On external examination, the body is G
described as "a burnt dead body, with skull separated at upper
cervical level (kept in a separate cardboard box)". After
describing the state of upper limbs, lower limbs, left lower limb,
thoracic cavity, abdominal cavity, kidneys, back of trunk, spinal
column, head, skull vault, cranial cavity, it is stated that at that H
676 SUPREME COURT REPORTS [2013] 16 S.C.R.
A stage it was decided to take X-rays of the body to detect any
firearm projectiles. The Report further notes that due to non-
availability of the facility of X-ray for the dead bodies at Lady
Hardinge Medical College, it was decided to shift the body to
the Civil Hospital for X-ray. The body was shifted to the Civil
B Hospital in a police vehicle and X-ray was taken in the Civil
Hospital. From the evidence of CW-7 Dr. (Ms.) P.S. Kiran, the
Radiologist, Civii i :c:;pital, New Delhi, it arpears that she took
the necessary X-rays cf the dead body. X-ray plates were
shown to the Board of Doi:tors. The doctors noted their
c observations in their report after viewing the X-ray plates. It is
stated that the X-ray ·plates showed the presence of two metal
pieces, (i) in back of right ear (mastoid region) and (ii) left side
of neck, near the spine in soft tissues of cervical stumps. The
report then indicates that thereafter the neck was dissected and
a deformed bullet was located. Thereafter, the right mastoid
D area was also dissected to locate the bullet. The outer table of
the skull above mastoid process was bulging outwards through
which a metal piece was seen. On further dissection, a
deformed bullet was found embedded in the bone with its nose
·.. portion pointing outwards and base towards medial side. Both
E the bullets were removed. The final opinion of the Board reads
as under:
"The burns are post-mortem in nature and are caus_ed by
fire. The firearm injuries are ante-mortem in nature,
F caused by a firearm such as a revolver or pistol. In view
of the extensive bums, it is not possible to give exact
location of the entry wounds. However on the basis of the
track and location of bullet, the entry wound on the head
could be in the left temporal region and that in the neck
G could be in the right upper part of the neck. It is also not
possif)le to comment upon the range of fire, because of
extensive burns on probable site of entry. The firearm
injury on the head is sufficient to cause death in ordinary
course of nature. The death in this case was due to coma,
H conseqpent upon firearm injury to the head.
•
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 677
[RANJANA PRAKASH DESAI, J.]
It is not possible to comment whether the distal portions A
of the limbs were chopped off or were separated due to
burns, in view of the burnt distal ends of the bones."
50. Thus, the second post-mortem report makes it clear that
the burns were post-mortem and firearm injuries were ante- 8
mortem and the death was due to coma, consequent upon
firearm injury to head. It was, however, not possible to say
whether the distal portions of the limbs were chopped off or
were separated due to burns in view of the burnt distal ends of
the bones. The report also shows how the body travelled from C
Lady Hardinge Medical College to the Civil Hospital. The body
was lying in the mortuar>' of Lady Hardinge Medical College in
a plastic bag and it was taken out from there in the presence
of the Board of Doctors and the second post-mortem was
conducted. When need for X-ray was realized, it was. shifted
in police vehicle to the Civil Hospital and the X-rays were taken D
at the Civil Hospital. We have no hesitation in placing implicit
reliance on the opinion expressed by the Board of Doctors after
, the second post-mortem.
5·1. It is also necessary to deal with the submission of the E
counsel for the appellant that the two parcels containing bullets
which were extracted from the skull of the deceased, bearing
the seal of Civil Hospital were never sent to the CFSL. This
submission deserves to be rejected, because PW-44 Dr.
Bharat Singh stated that after the second post-mortem, he F
handed over the two bullets recovered from the skull of the
deceased to PW-57 SI Ombir Singh in a sealed cover with the
seal of Civil Hospital. PW-57 SI Ombir Singh has confirmed
this fact He stated that he took possession of the same vide
Memo [Ex-PW57/A] and after depositing the dead body at G
Lady Hardinge Medical College, he came to the police station
and handed over the said parcels to PW-81 10 Niranjan Singh
along with Memo [Ex-PW-57/A]. It was urged that PW-67 HC
Raj Kumar, who is in-charge of Malkhana has stated that no
parcel was deposited with him on 12/7/1995, 13/7/1995 and
H
678 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 14/7/1995. This argument is misleading. In his evidence PW-
67 HC Raj Kumar has nowhere stated that he had not received
any parcel on 12/7/1995, 13/7/1995 and 14/7/1995. According
to the prosecution, Entry No.2146 of the Malkhana Register
shows that the two bullets [Ex.Nos.36 and 37] recovered from
B the skull of the deceased were deposited in Malkhana. PW-
.81 10 Niranjan Singh has stated that on 17/7/1995 he had sent
the parcels to the CiSL through SI Rakesh Ahuja. PW-67 HC
Raj Kumar has confirrr.ed this fact. PW-70 Roop Singh has
stated that he received twc parcels with the seal of Civil
c Hospital, Delhi from the Malkhana on 17/7/1995. We have,
therefore, no doubt that the two bullets recovered from the skull
of the deceased were sent to the CFSL. There is, therefore,
no substance in this argument.
52. We may add here that the CFSL Report dated 27171
D 1995 states that the two bullets recovered from the skull of .the
deceased were stained with blood of 'B' group. This
establishes that the blood group of the deceased was 'B'. It is
pertinent to note that the CFSL Report dated 17/7/1995 states
that the various articles suchcas doth piece, carpet piece, chatai~
E etc. recovered on 4/7/1995 from the said flat were stained with
the blood of 'B' group. Similarly, it states that the polythene
sheet which was recovered from the Bagia Restaurant was also
stained with the blood of 'B' group. It is pertinent to note that
the CFSL Report dated 27/7/1995 also shows that in the dicky
F of Car No.DL-2CA-1872, blood was detected. Therefore, the
prosecuti9n case that the deceased.was murdered in the said
flat by shooting her in the head by the appellant; that the body
of the deceased was wrapped in the polythene sheet and
carried by the appellant in his car bearing No.DL-2CA-1872
G to the Bagia Restau(ant and that it was burnt there in the
tandoor, is proved.
53. Attempt has been made to create confusion and caste
a doubt on the entire procedure of second post-mortem by
H pointing out some discrepancies in the evidence of PW-44 Dr.
SUSHIL SHARMA- 11. STATE OF N.C.T. OF DELHI
___ ,... _ 679
[RANJANA PRAKASH DESAI, J.]
Bharat Singh and PW-57 SI Ombir Singh as regards the time A
when the second post-mortem was conducted. We repeat that
the evidence. of tlfe doctors who were concerned with the
second post-mortem and their report inspires confidence. It is
reliable. Hence, we reject this submission. At the cost .of
repetition, we must note that minor discrepancies in. the B
evidence of witnesses as regards dates and time cannot have
any adverse impact on the prosecution case because in this
case, it's substratum is firmly established by cogent and reliable
evidence.
54. Certain minor procedural irregularities have also been C
highlighted. But it must be borne in mind that the investigation
of this case was not restricted to New Delhi. The appellant
travelled from one city to another. He reached Madras. From
there he went to Bangalore where he was arrested. In a case
of this type there is likelihood of some lapses on the part of D
the investigating agency. It is well settled that such lapses, if
they are minor, cannot be allowed to defeat the cause of justice.
We have not noticed any major lacuna in the investigation from
which adverse inference can be drawn against the prosecution.
Attempt has been made to suggest that all witnesses including E
doctors, expert witnesses, and police officers have conspired
against the appellant and he has been falsely implicated. We
see no reason to draw such conclusion. It is impossible to
believe that everyone would want to implicate the appellant in
a false murder. case and in that attempt, go to the extent of F
implanting bullets in the skull. We reject all such submissions.
55. The evidence on record clearly establishes that the
appellant has not been able to prove the defence of alibi.
Adverse inference needs to be drawn from this fact. False
defence of alibi indeed forms a vital link in the chain of G
circumstances. It is also established by the prosecution that
after the murder, the appellant made himself scarce. He stayed
in the night of 2/7/1995 and 3/7/1995 at Gujarat Bhavan. He
was on the run. He travelled from Delhi to Jaipur, from Jaipur H
to Bombay, from Bombay to Madras and from Madras to
680 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Bangalore where he was arrested on 10/7/1995. These facts
are successfully established by oral and documentary evidence.
Thus, the fact that the appellant was absconding is established
beyond doubt.
56. In the ultimate analysis, therefore, we are of the opinion
8
that the prosecution has successfully proved beyond
reasonable doubt the following circumstances:
(a) the appellant and the deceased were married and
they were staying together in the said flat being Flat
c No.8/2A situated at Mandir Marg;
(b) the relations between the appellant anq the
deceased were strained. The appellant was
suspecting the fidelity of the deceased. The
D deceased wanted to make their marriage public
which the appellant was not willing to do.. There was,
thus, a strong motive to murder;
(c) the appellant and the deceased were last seen
together in the evening of 2/7/1995 in the said flat;
E
(d) on 2/7/1995, at about 11.00 p.m. there was a fire
in Bagia Restaurant and the appellant was seen at
around 10.15 p.m. at the Bagia Restaurant in his
Maruti Car bearing No.DL-2CA-1872;
F
(e) A2-Keshav, who was an employee of the Bagia
Restaurant owned by the appellant, was seen
shuffling the wood in the tandoor with a wooden
stick and he was apprehended at the spot in the
night intervening 2/7/1995 and 3/7/1995;
G
(f) charred corpse found in the tandoorwas identified
to be that of the deceased;
(g) on 4/7/1995, certain blood stained articles were
recovered from the said flat where the appellant and
H
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 681
[RANJANA PRAKASH DESAI, J.]
the deceased were staying together; A
(h) on 4/7/1995, Car No.DL-2CA-1872 was found
abandoned at Malcha Marg and the dicky of the car
was found to contain dry blood.
(i) on 5/7/1995, five empty cartridges, one lead bullet, B
a ply with bullet hole and an air pistol were
recovered from the said flat where the appellant and
the deceased were staying together;
G) from the evening of 2-3/7/1995, the appellant was c
on the run till ·he was arrested by the Bangalore
Police at Bangalore on 10/07/1995. ·on 11/07/
1995, the appellant was handed over to the Delhi
Police and, inter alia, a .32 Arminius revolver owned
by him was recovered by the police from his room D
at Pai Vihar Hotel at Bangalore;
(k) the second post-mortem report prepared after
studying the X-ray plates of the skull of the
deceased revealed that there were two bullets
embedded in it; E
(I) the CFSL report stated that the said two bullets
recovered from the skull of the deceased and the
one lead bullet recovered from the said flat were
fired from the .32 Arminius revolver recovered by F
the police from Pai Vihar Hotel at Bangalore;
(m) the death of the deceased was homicidal and was
.. consequent upon firearm injuries to the head of the
deceased caused by the appellant alone with his G
.32 bore Arminius revolver;
(n). as per the CFSL Report, blood found on various
articles seized from the said flat and from Bagia
Restaurant and the blood found on the bullets
H
682 SUPREME COURT REPORTS [2013] 16 S.C.R.
A recovered from the skull tallied. It was of the blood
group of the deceased.
(o) the defe.nce of alibi pleaded by the appellant was
found to be false; and
8 (p) the appellant and A2-Keshav conspired to cause
disappearance of the evidence of murder by
burning the dead body of the deceased in tandoor
of 8agia Restaurant.
c 57. We have no doubt that the chain of the above
circumstances is complete and unerringly points to the guilt of
the appellant. The established circumstances are capable of
giving rise to inference which is inconsistent with any other
hypothesis except the guilt of the appellant. The prosecution
0 has, therefore, proved that the appellant alone has committed
the murder of the deceased in the said flat on 2/7/1995. The
appellant conspired with A2-Keshav to do away with the dead
body of the deceased so as to cause disappearance of the
evidence of murder and, at the instance of the appellant, A2-
E Keshav burnt the dead body in the tandoor. The appellant has,
therefore, rightly been convicted under Section 302 of the IPC
and also for offence under Section 201 read with Section 120-
8 of the IPC. A2-Keshav has been acquitted of offence
punishable under Section 302 read with Section 120-8 of the
IPC. However, he ha·s been rightly convicted for offence
F punishable under Section 201 read with Section 120-8 of the
IPC. As already stated, he has not appealed against the said
order of conviction. In view of the above, we confirm the
conviction of the appellant for offence punishable under Section
302 of the IPC and also for offence punishable under Section
G 201 read with Section 120-8 of the IPC. Having confirmed the
conviction, we must now consider as to whether the death
sentence awarded by the trial court and confirmed by the High
Court should be confirmed.
H
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 683
[RANJANA PRAKASH DESAI, J.]
SUBMISSIONS ON SENTENCE: A
58. On the question of sentence, we have heard Mr. Jaspal
Singh at great length. He first took us to the judgment of the
¢.Onstitution Bench of this Court in Bachan Singh, etc. v. State
of Punjab, etc. 3 , where the Constitution Bench has noted the
B
aggravating circumstances and mitigating circumstances and
observed that while considering the question of sentence
relative weight must be given to them. Counsel laid stress on
the observation of the Constitution Bench that apart from the
mitigating circumstances noted by it there are numerous other
circumstances justifying the passing of the lighter sentence; that C
the mitigating factors in the area of death penalty must .receive
a liberal and expansive construction by the court and that judges
should never be bloodthirsty.
59. Counsel relied on the judgments of this Court in D
Santosh Kumar Satishbhushan Bariyar, etc. v. State of
Maharashtra, etc. 4; Ramdeo Chauhan alias Raj Nath v. State
of Assam 5; Swamy Shraddananda (2) alias Murali Manohar
Mishra v. State of Karnataka 6 ; Aloke Nath Dutta & Ors. v. State
of West Benga/7; Haresh Mohandas Rajput v. State of E
Maharashtra 6 and. State of Punjab v. Manjit Singh and Ors9 •
and submitted that public perception is extraneous to conviction
as also sentencing. Age of the accused would be a relevant
consideration. In a case of circumstantial evidence the courts
should lean towards life imprisonment. Every murder is brutal. · F
Brutality alone would not be a grou~d for judging whether the
case is one of the rarest of rare cases. The court must consider
whether the accused has a criminal history; whether he is a
3. (1980) 2 sec 684.
4. (2009) 6 sec 498. G
5. (2001) 5 sec 714.
6. c2008) 13 sec 767.
1. (2001) 12 sec 230.
8. c2011) 12 sec 56.
9. c2009J 14 sec 31. H
684 SUPREME COURT REPORTS [2013] 16 S.C.R.
A criminal or a professional killer and whether he will be an ardent
criminal and a menace to the society. Counsel pointed out that
despite the fact that the offences committed by the accused
were heinous in Mohd. Chaman v. State (NCT of Delhi)1°;
Dilip Premnarayan Tiwari & Anr., etc. v. State of
B Maharashtra 11; Sebastian alias Chevithayan v. State of.
Kera/a 12; Rajesh Kumar v. State through Government of NCT
of Delhi13 and Amit v. State of Uttar Pradesh 14 , the court
converted the death sentence into life sentence. Counsel
submitted that probability of reformation and rehabilitation of
c the accused has to be considered and burden is on the State
to lead evidence to prove that there is no probability of
reformation or rehabilitation of the accused. Counsel submitted
that Machhi Singh & Ors. v. State of Punjab 15 advocates
principle of proportionality which is old and archaic and, hence,
we must fall back on Bachan Singh. ·counsel further submitted
0
that there is a long lapse of time since the imposition of capital
sentence and consideration of sentence by this Court. The
offence was committed on 2/7/1995. The trial court convicted
and sentenced the appellant on 3/11/2003. The High Court·
confirmed the death sentence on 19/2/2007. The appeal has
E been pending in this Court for the last six years. He submitted
that the appellant has already undergone more than 18 years
imprisonment in the jail. This delay also provides a valid ground
for commuting death sentence to life imprisonment. In this
connection he relied on Piare Dusadh v. King Emperor16; Neti
F Sreeramulu v. State of Andhra Pradesh 17; Ediga Anamma v.
10. c2001) 2 sec 28.
11. c201 o) 1 sec 775.
G 12. c2010) 1 sec 58.
13. c2011 l t3 .sec 106.
14. (2012) 4 sec 107.
1s. (1983) 3 sec 410.
16. AIR 1944 FC 1.
H 11 (1974) 3 sec 314
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 685
[RANJANA PRAKASH DESAI, J.]
State of Andhra Pradesh 16 ; Ramesh and Ors. v. State of A
Rajasthan 19 ; Mohd. Farooq Abdul Gafur & Anr. etc. v. State
of Maharashtra, etc. 20 and State of Uttar Pradesh v. Munesh. 21
Counsel submitted that the instant case does not fall in the
category of rarest of rare cases. The appellant has no criminal
history. He is not a professional criminal. Death was caused B
by bullet injuries. It was not savage or brutal. The State has not
laid any evidence to establish that the accused would commit
criminal acts of violence as would constitute continuing threat
to the society. Therefore, the principle that life imprisonment is
the rule and death sentence is an exception must be applied c
to this case. Counsel submitted that body was burnt to destroy
evidence. That would not bring this case in the category of
rarest of rare cases (Santosh Kumar Bariyar). Counsel
submitted that evidence on record establislies that the appellant
loved the deceased. He married her despite the fact that she D
had an affair with PW-12 Matloob Karim. She continued to have
relations with PW-12 Matloob Karim despite his objection after
marriage. The deceased was not a hapless woman. She was
an independent woman. Since crime is committed in such
circumstances, death sentence should not be awarded to the
appellant. - E
60. On the other hand, relying on the judgments of this
Court in Ediga Anamma 22; Mahesh s/o. Ram Narain, & Ors.
v. State of Madhya Pradesh 23; Machhi Singh; Molai & Anr. v.
State of Madhya Pradesh 24 ; 'State of Rajasthan v. Kheraj F
Ram 25 ahd Dhananjoy Chatterjee alias Dhana v. State of
18 (1974) 4 sec 443.
19 (2011) 3 sec 685.
20. (2010) 14 sec 641. G
21. (2012) 9 sec 742.
22. (1974) 4 sec 443.
23. (1987) 3 sec 80.
24. (1999) 9 sec 581.
25 (2003) 8 sec 224. H
686 SUPREME COURT REPORTS [2013] 16 S.C.R.
A West Benga/26 Mr. Chandhiok, learned Additional Solicitor
General, submitted that the appellant deserves no sympathy.
The crime committed by the appellant is horrendous and
warrants death penalty. Counsel submitted that the deceased
was a hapless lady; qua her, the appellant was in a dominating
8 position; the appellant always ill-treated her and refused to
acknowledge her as his wife though she was residing with him;
his plea was held to be false; he showed no remorse after the
murder and he tried to destroy the evidence in a most barbaric
manner. Thus, there are no mitigating circumstances, in this
c case. A sentence other than the death sentence will not
operate as a deterrent and may send a wrong signal to the
society. Counsel submitted that the object of sentencing is to
see that the crime does not go unpunished and the victim of
crime as also the society has the satisfaction that justice has
been done. Drawing our attention to paragraphs 19, 22, 87 and
0
88 of the impugned judgment, counsel submitted that the High
Court has given strong, convincing and legally sound reasons
for awarding death penalty, which do not deserve to be
disturbed. On the aspect of delay, relying on the judgment of
this Court in Smt. Triveniben, etc. v. State of Gujarat, etc. 27,
E counsel submitted that in this case the Constitution Bench has
held that while considering whether the death sentence should
be awarded or not, the time utilized in judicial proceedings upto
final verdict cannot be taken into account. This 'is not a case of
delay in disposing of mercy petition. Counsel submitted that
F while awarding death sentence, perception of the Society is one
of the considerations. Counsel submitted that this case is one
of the most widely published and infamous murder case. It is a
case where this Court must, by confirming the death sentence,
send a strong signal to the society which will operate as an
G effective deterrent in future.
26. (1994) 2 sec 220.
H 27. (1989) 1 sec 678.
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 687
[RANJANA PRAKASH DESAI, J.]
ANALYSIS OF SUBMISSIONS ON SENTENCE AND A
CONCLUSION:
61. Learned counsel have drawn ' .
our attention to the
decisions of the Constitution Bench of this Court in Bachan
Singh and Machhi Singh. We must begin ·with them. In
B
Bachan Singh, after referring to Ediga Anamma, which had,
in turn, referred to Neti Sreeramulu, constitutional validity of
death penalty for murder provided in Section 302 of the IPC
and the sentencing procedure embodied in sub-section (3) of
Section 354 of the Code was considered. The Constitution
Bench observed that the death penalty should be imposed in C
rarest of rare/gravest cases. It was observed that while
considering the question of sentence relative weight must be
given to the aggravating and mitigating circumstances. The
Constitution Bench noted th~ aggravating circumstances as
under: D
"(a) if the murder· has been committed after previous
planning and involves extreme brutality; or
(b) if the mur\:ler involves exceptional" depravity; or
E
(c) if the murder is of a member of any of the armed forces
of the Union or of a member of any police force or of any
public servant and was committed-
(i) while such member or public servantwas on duty; F
or
(ii) in consequence of anything done or attempted
to be done by such member or public servant in the
lawful discharge of his duty as such member or
G
public servant whether at the time of murder he was
such member or public servant, as the case may
be, or had ceased to be such member or public
servant; or
(d) if the murder is of a person who had acted. in the lawful H
688 SUPREME COURT REPORTS [2013] 16 S.C.R.
A discharge of his duty under Section 43 of the Code of
Criminal Procedure, 1973, or who had rendered
assistance to a Magistrate or a police officer demanding
his aid or requiring his assistance under Section 37 and
Section 129 of the said Code."
B
The mitigating circumstances were noted as under:
"(1) That the offence was committed under the
influence of extreme mental or emotional
disturbance.
c
(2) The age of the accused. If the accusec;l is young
or old, he shall not be sentenced to death.
(3) The probability that the accused would not
commit criminal acts of violence as would constitute
D a continuing threat to society.
(4) The probability that the accused can be
reformed and rehabilitated. The State shall by
evidence prove that the accused does not satisfy
E the conditions (3) and (4) above.
(5) That in t.tie facts and circumstances of the case
the accused believed that he was morally justified
in committing the offence.
F (6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed that
he was mentally defective and that the said defect
G impaired his capacity to appreciate the criminality
of his conduct."
62. The Constitution Bench noted that there are numerous
other circumstances justifying the passing of the lighter
sentence as there are countervailing circ.umstances of
H
SUSHIL SHARMA v.. STATE OF N.C.T. OF DELHI 689
· [RANJANA PRAKASH DESAI, J.]
aggravation. It was further observed that the court cannot A
obviously feed into a judicial computer all such situations since
they are astrological imponderables in an imperfect and
undulating society. Nonetheless, it cannot be over-emphasized
that the scope and concept of mitigating factors in the area of
death penalty must receive a liberal and expansive construction B
by the courts in accord with the sentencing policy. It was further
observed that Judges should never be bloodthirsty. Relevant
observations of the Constitution Bench read as under:
"Judges should never be bloodthirsty. Hanging of
murderers has n~ver been too good for them. Facts and
c
figures, albeit incomplete, furnished by the Union of India,
show that in the past, courts have inflicted the extreme
penalty with extreme infrequency - a fact which attests to
the caution and compassion which they have always
brought to bear on the exercise of their sentencing D
discretion in so grave a matter. It is, therefore, imperative
to voice the concern that courts, aided by the broad
illustrative guidelines indicated by us, will discharge the
onerous function with evermore scrupu.lous care and
humane concern, directed along the highroad of legislative E
policy outlined in Section 354(3) viz. that for persons
convicted of murder, life imprisonment is the rule and death
sentence an exception. A real and abiding concern for the
dignity of human life postulates resistance to taking a life
through law's instrumentality. That ought not to be done F
save in the rarest of rare cases when the alternative option
is unquestionably· foreclosed."
63. In Machhi Singh, a three Judge Bench of this Court
considered whether death sentence awarded to the appellants G
should be confirmed. In thaf case as a result of a family feud
the appellants with a motive of reprisal, committed 17 murders
. in five incidents occurring in the same night in quick succession
in the five neighbouring villages: Some of the accused were
sentenced to death. This Court referred to the judgment of the H
690 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Constitution Bench in Bachan Singh and culled out the
following propositipns as emerging from Bachan Singh's case:
"(i) The extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability.
B
(ii) Before opting for the death penalty the
circumstances of the 'offender' also require to be
taken into consideration along with the
circumstances of the 'crime'.
C,
(iii) Life imprisonment is the rule and death
sentence is an exception. In other words death
sentence must be imposed only when life
imprisonment appears t.o be an altogether
D inadequate punishment having regard to the
relevant circumstances of the crime, and provided,
and only provided, the option to impose sentence
of imprisonment for life cannot be conscientiously
exercised having regard to the nature and
circumstances of the crime and all the relevant
E
circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so
the mitigating circumstances have to be accorded
F full weightage and a just balance has to be struck
between the aggravating and the mitigating
circumstances before the option is exercised."
It was further observed that to apply these guidelines court
G must ask and answer the following questions:
"(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate and
calls for a death sentence?
H (b) Are the circumstances of the crime such that there is
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 691
[RANJANA PRAKASH DESAI, J.]
no alternative but to impose death sentence even after A
according maximum weightage to the mitigating
circumstances which speak in favour of the offender?"
In the facts of the case, death sentence awarded to some
of the accused was confirmed.
B
. 64. We shall now go to some of the other judgments on
which reliance is placed by the appellant and the respondent.
It is not necessary to refer to all the judgments because they
reiterate the same principles.
c
JUDGMENTS RELIED ON BY THE APPELLANT:
65. In Mohd. <;haman, the appellant had raped a 1Yi year-
old girl. In the process ofcommitting rape, injuries were inflicted
on liver which resulted in-death of the child. The trial court
sentenced him to death. The High Court confirmed the death D
penalty. This Court observed that the crime was undoubtedly
serious and heinous and the conduct of the appellant was
reprehensible. It revealed a dirty and perverted mind of a human
being who has no control over his carnal desires. However, after
treating the case on the touchstone of the guidelines laid down E
in Bachan Singh and Machhi Singh, this Court was of the view
that the appellant was not such a dangerous person that to spare
his life will endanger the community. It was further observed that
the circumstances of the crime were not such that there was
no alternative but to -impose ,death sentence even after F
according maximum weightage to the mitigating circumstances
in favour of the offender. It was observed that the case is one
in which a humanist approach should be taken while awarding
punishment. The capital punishment imposed against the
appellant was set aside and the appellant was sentenced to G
life imprisonment.
66. In Aloke Nath. Dutta, the appellant, who had many
vices, was in need of money. Out of greed for money, he killed
his brother. The trial court sentenced the appellant to death. The H
692 SUPREME COURT REPORTS [2013] 16 S.C.R.
A High Court confirmed the death sentence. This Court held that
though the offence was gruesome, the case was not one of the
rarest of rare cases. This Court observed that though the
deceased w~s killed while he was in deep slumber, the method
applied cannot be said to be cruel. This Court noted that both
8 the brothers i.e. the deceased and the appellant were living in
the same premises for a long time; they were looking after their
parents and the other brothers had filed a :>uit against them and
their mother apprehending that their mother would bequeath the
property in favour of the appellant and the deceased. This Court
C held that the prosecution had failed to prove the case of
conspiracy and, in the circumstances, the case did not fall in
•
the category of rarest of rare cases. The appellant's death
penalty was commuted to life imprisonment.
67. In Manjit Singh, the case of the prosecution was that
D Bhinder Kaur, the wife ef the deceased-Sewa Singh was having
illicit relationship with the accused, who were working as
Sewadars in the Gurdwara where the deceased used to recite
Kirtan. Having come to know this, deceased-Sewa Singh and
his son used to beat Bhinder Kaur .. Enraged by this, the
E accused came to the house of deceased-Sewa Singh and
murdered him by assaulting him with Kirpan and Khanda. The
son of deceased-Sewa Singh and two others were killed in the
Gurdwara by them. The accused were sentenced to death by
the trial court. The High Court, however, commuted the death
F sentence to life imprisonment. The State of Punjab appealed
to this Court. It was argued that the High Court was not right in
converting the death sentence into life imprisonment. This Court
observed that whether the case is one of the rarest of rare
cases is a question which has to be determined on the facts
G of each case. Only where culpability of the accused has
assumed depravity or where the accused is found to be an
ardent criminal and menace to the society; where the crime is
committed in an organized manner and is gruesome, cold-
blooded, heinous and atrocious; where innocent and unarmed
H persons are attacked and murdered without any provocation,
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 693
[RANJANA PRAKASH DESAI, J.]
death sentence should be awarded. In the facts of the case A
before it, this Court held that being driven more by infatuation
and also being devoid of their senses on coming to know about
the ill-treatment meted out to Bhinder Katir, ·the accused
committed the murders. It was observed that though the act of
the accused was gruesome it was a result of human mind going B
astray. In the circumstances, the High Court's order commuting
death sentence to life imprisonment was confirmed.
68 In ~antosh Kumar Bariyar, all the accused including
the appellant were unemployed young men in search of job. In C
execution of a plan proposed by the appellant and accepted
by them, they kidnapped a friend of theirs with the motive of
procuring ransom from his family but later murdered him and
after cutting· his body into pieces disposed of the same at
different places. One of the accused turned approver. The
prosecution case wa.s based exclusively on his evidence. The D
trial .court awarded death sentence to the appellant. The High
~ourt confirmed the death sentence. In appeal, this Court held
that doctrine of proportionality provides for justifiable reasoning
for awarding death penalty. However, while imposing any
sentence on the accused the court must also keep in mind the E
doctrine .of rehabilitation.
•
The court cannot,
I
therefore, determine
punishment on grounds ·of proportionality alone. This Court
observed that there was nothing to show that the appellant could
not be reformed and rehabilitated. It was further observed that
the manner and method of disposal of the dead body of the F
deceased made the case a most foul and despicabfe-ca5e of
murder.· However, mere mode of disposal of the dead body
may not by itself b-e made the ground for inclusion of~a case in
the rarest of carJ category for the purpose of imposition of
death sentence. It may have to be considered along with G
several other. factors. This Court was of the view that the fact
that the prosecution case rested on the evidence of the
approver, will have to be kept in mind. It was further observed
that where the death sentence is to be imposed on the basis
of circumstantial evidence, the circumstantial evidence must be H
694 SUPREME COURT REPORTS [2013] 16 S.C.R.
A such which leads to an exceptional case. It was further
observed that the discretion given to the court in such cases
assumes onerous importance and its exercise becomes
extremely difficult because of the irrevocable character of death
penalty. Where two views ordinarily could be taken, imposition
B of death sentence would not be appropriate, but where there
is no other option and it is shown that reformation is not
possible, death c;entence may be imposed. In the
circumstances, the death sentence was converted to life
imprisonment
c 69. In Sebastian, the appellant had trespassed into the
complainant's house and kidnapped his two year-old daughter.
He then raped and killed her. The trial court sentenced him to
death. The death sentence was confirmed by the High Court.
This Court considered the fact that the appellant was a young
D man of 24 years of age at the time of incident and that the case
rested on circumstantial evidence, and substituted the death
sentence by life sentence. It was, however, directed that the
appellant shall not be released from prison for the rest of his
life.
E
70. In Rajesh Kumar, the appellant was convicted for killing
two children aged four-and-a-half years, and eight months in a
brutal and diabolical manner. He had held the legs of the infant
and hit the child on the floor, and had slit the throat of the elder
F son with a piece of glass which he had obtained by breaking
the dressing table glass. The motive for crime was said to be
the refusal by the father of the children to lend money to him.
The trial court imposed death sentence on the appellant. The
High Court confirmed the death sentence. On appeal, this Court
G held that the State had failed to show that the appellant was a
continuing threat to the society or that he was beyond reform
and rehabilitation. It was observed that the High Court has taken
a very narrow and a myopic view of the mitigating
circumstances about the appellant. It was observed that the
brutality of murder alone cannot justify infliction of death penalty.
H
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 695
[RANJANA PRAKASH DESAI, J.]
The death sentence was, in the circumstances, set aside and A
the appenant was sentenced to life imprisonment.
71. In Ramesh, Ramlal, who was doing business of money
lending and his wife Shanti Devi were found lying dead in a
pool of blood in their house-cum-shop. Pursuant to the FIR
8
registered under Sections 302 and 457 of the IPC, the appellant
was arrested along with others. The case of the prosecution was
that the appellant and other accused had decided to commit
robbery at the house-cum-shop of Ramlal. They trespassed into
it; looted the house-cum-shop and decamped with the
ornaments of silver, gold and cash. The murder weapon was C
recovered from the appellant. The trial court convicted the
appellant, inter alia, under Sections 120-B and 302 of the IPC.
He was sentenced to death. The High Court confirmed the
death sentence. On appeal, this Court observed that though the
case was of double murder, it cannot be said to be a crime of D
enormous proportion. The appellant could not be said to be a
person in a dominating position as it was not a murder of an
innocent child or a helpless woman or old or infirm person.
Though it was the case of the prosecution that the appellant was
having criminal record, this Court noticed that. it did not find any E
previous conviction having been proved against him. The
'original intention was theft and on account of the deceased
having been awakened, the accused took the extreme step of
eliminating both of them for fear of being ·detected. This Court
further observed that it cannot be said that the appellant alone F
had committed the murder because he discovered the murder
weapon. It was not clear as to who was the actual author of the
injuries. This Court noted that the appellant was languishing in
death cell for more than six years. That would also be one of
the mitigating circumstances. In the circumstances, death G
sentence awarded to the appellant was converted into life
imprisonment.
72. In Amit, the complainant lodged FIR alleging that while
his mother and wife were present in the house, the appellant H
696 SUPREME COURT REPORTS [2013] 16 S.C.R.
A came there, took away his 3 year-old daughter on the pretext
that he would give her biscuits. However, neither the appellant
nor the complainant's daughter returned. Investigation disclosed
that the appellant had kidnapped the girl. She was subjected
to unnatural offence and rape. She was hit on the head and was
8 strangulated. The trial court convicted the appellant, inter alia,
under Section 302 of the IPC and sentenced him to death. The
High Court confirmed the death sentence. On appeal, this Court
set aside the death sentence. This Court observed that the
appellant was a young person aged about 28 years. There was
C no evidence to show that he had committed such offences
earlier. There was nothing on record to show that he was likely
to repeat similar crimes in future. This Court expressed that
given a chance, the appellant may reform over a period of
years. This Court sentenced the appellant to life imprisonment
and observed that life imprisonment shall extend to the full life
0
of the appellant, but subject to any remission or commutation
at the instance of the Government for good and substantial
reasons.
73. We may also refer to Mohinder Singh v. State of
E Punjab 28 , where the appellant, who was serving 12 years'
rigorous imprisonment for having raped his own daughter was
released on parole. While on parole, he murdered his wife and
the daughter, whom he had raped earlier, by giving repeated
axe-blows on their heads. His other daughter saved herself by
F hiding in a room and bolting the same from inside. The trial
court convicted him under Section 302 of the IPC and
sentenced him to death. The High Court confirmed the death
sentence. This Court observed that the appellant was a poor
man and was unable to earn his livelihood since he was driven
G out of his house by the deceased-wife. It was his grievance that
the deceased-wife was adamant that he should live outside and
that was the reason why the relations were strained. The
appellant was fe~ling frustrated because of the attitude of his
H 2a. (2013) 3 sec 294.
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 697
[RANJANA PRAKASH DESAI, J.]
wife and children. This Court also took into consideration the A
fact that the appellant did not harm his other daughter who was
there even though he had a good chance to harm her. This
Court observed that after balancing the aggravating and
mitigating circumstances emerging from the evidence on
record, it was not persuaded to accept that the case can B
. appropriately be called the rarest of rare case warranting death
penalty. This Court also expressed that it was difficult to hold
that the appellant was such a dangerous person that he will
endanger the community if his life is spared. The possibility of
reformation of the appellant could not be ruled out. In the c
circumstances, this Court converted the death sentence into life
imprisonment. However, after referring to its judgment in
Sangeet & An;. v. State of Haryana29, this Court observed that
there is a misconception that a prisoner serving life sentence
has an indefeasible right to release on completion of either 14 D
years' or 20 years' imprisonment. A convict undergoing life
imprisonment is expected to remain in custody till the end of
his life, subject to any remission granted by the appropriate
Government under Section 432 of the Cr.P.C. which in turn is
subject to the procedural checks mentioned in the said
provision and further substantive checks in Section 433-A of E
the Cr.P.C., This Court, therefore, sentenced the appelfant to
undergo rigorous imprisonment for life, meaning thereby
imprisonment till the end of his life but subject to any remission
granted by the appropriate Government satisfying the
conditions prescribed in Section 432 of the Cr.P.C. and further F
substantive checks under Section 433-A of the Cr.P.C. by
passing appropriate speaking order.
JUDGMENTS RELIED ON BY THE RESPONDENT-
STATE. G
74. In Mahesh, fiye persons were murdered because of
marriage of a lady of a higher caste with a Harijan boy. They
were axed to death in an extremely brutal manner. After the
29. (2013) 2 sec 452. H
698 SUPREME COURT REPORTS [2013] 16 S.C.R.
A murders, the accused tried to break open the door of the room
where two of the prosecution witnesses were hiding to save
themselves and they left the place only when the door could not
be opened. The accused were convicted under Section 302
of the IPC and sentenced to death by the trial court. While
B confirming the death sentence, this Court observed as under:
"It will be a mockery of justice to permit these appellants
to escape the extreme penalty of law when faced with such
evidence and such cruel acts. To give the lesser
punishment for the appellants would be to render the
c justicing system of this country suspect. The common man
will lose faith in courts. In such cases, he understands and
appreciates the language of deterrence more than the
reformative jargon. But this does not mean that the Court
ignore the need for a reformative approach in the
D sentencing process. But here, there is no alternative but
to confirm the death sentence."
75. In Dhananjoy Chatterjee, the appellant had raped and
murdered a young 18 year-old girl in her flat in a society where
E he was working as a security guard. The trial court found him
guilty, inter alia, under Sections 302 and 376 of the IPC. The
High Court confirmed the sentence of death. This Court also
confirmed the death. sentence by observing that the case falls
in the category of rarest of rare cases. This Court observed as
under:
F
"The faith of the society by such a barbaric act of the
guard, gets totally shaken and its cry for justice becomes
loud and clear. The offence was not only inhuman and
barbaric but it was a totally ruthless crime of rape followed
G by cold blooded murder and an affront to the human
dignity of the society. The savage nature of the crime has
shocked our judicial conscience. There are no
extenuating or mitigating circumstances whatsoever in
the case. We agree that a real and abiding concern for
H the dignity of human life is required to be kept in mind
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 699
[RANJANA PRAKASH DESAI, J.]
by the courts while considering the confirmation of the A
sentence of death but a..-.cold blooded preplanned brutal
murder, without any provocation, after committityg rape on
an innocent and defenceless young girl of 18 years, by
the security guard certainly makes this case a "rarest of
the rare" cases which calls for no punishment other than B
the capital punishment and we accordingly confirm the
·sentence of death imposed upon the appellant for the
offence ·under Section 302 /PC."
76. In Molai, a 16 year-old girl was preparing for her class C
10th examination at her house. Both the accused took
advantage of her being alone in the house and committed rape
on her. Thereafter, they strangulated her by using her
undergarment and took her to the septic tank along with the
cycle and caused injuries with a sharp-edged weapon. Then,
they threw the dead body into a septic tank. The trial court D
awarded death sentence to the accused which was confirmed
by" the High Court. This Court confirmed the death sentence
observing that there was no mitigating circumstance, which
could justify the reduction of sentence of death penalty to life
imprisonment. E
77. In Kheraj Ram, suspecting infidelity on the part of his
wife, the accused-Kheraj Ram killed her, his two children and
brother-in-law. The trial court convicted him under Section 302
of the IPC and sentenced him to death. The High Court noted F
that the case rested on circumstantial evidence. The
circumstances were not proved and, therefore, the accused
was entitled to acquittal. On appeal, this Court held that the
prosecution had established its case; that the murder was
committed in a cruel and diabolic manner; the accused did not G
act"on any spur-of-the-moment provocation; the murder was
deliberately planned and meticulously executed and after the
incident, the accused smoke chi/am with calmness, which
indicated that he had no remorse and he was satisfied with what
he had done. This Court observed that the victims were two
H
700 SUPREME COURT REPORTS [2013] 16 S.C.R.
A innocent children and a helpless woman. They were done to
death in an extremely gruesome and grotesque manner. In the
circumstances, this Court set aside the order of acquittal and
confirmed the death sentence awarded by the trial court.
78. In light of the above judgments, we would now ascertain
8
what factors which we need to take into consideration while
deciding the question of sentence. Undoubtedly, we must locate
the aggravating and mitigating circumstances in this case and
strike the right balance. We must also consider whether there
is anything uncommon in this case which renders the sentence
C to life imprisonment inadequate and calls for death sentence.
It is also necessary to see whether the circumstances of the
crime are such that there is no alternative but to impose death
sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offender.
D
79. We notice from the above judgments that mere brutality
of the murder or the number .of persons killed or the manner in
which the body is disposed of has not always persuaded this
Court to impose death penalty. Similarly, at times, in the peculiar
E factual matrix, this Court has not thought it fit to award death
penalty in cases, which rested on circumstantial evidence or
solely on approver's evidence. Where murder, though brutal, is
committed driven by extreme emotional disturbance and it does
not have enormous proportion, the option of life imprisonment
F has been exercised in certain cases. Extreme poverty and
social status has also been taken into account amongst other
circumstances for not awarding death sentence. In few cases,
time spent by the accused in death cell has been taken into
consideration along with other circumstances, to commute
G death sentence into life imprisonment. Where the accused had
no criminal antecedents; where the State had not led any
evidence to show that the accused is beyond reformation and
rehabilitation or that he would revert to similar crimes in future,
this Court has leaned in favour of life imprisonment. In such
cases, doctrine of proportionality and the theory of deterrence
H
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 701
[RANJANA PRAKASH DESAI, J.]
have taken a back seat. The theory of reformation and A
rehabilitation has prevailed over the idea of retribution.
80. On the other hand, rape followed by a cold-blooded
murder of a minor girl and further followed by disrespect to the
body of the victim has been often held to be an offence B
attracting death penalty. At times, cases exhibiting
premeditation and meticulous execution of the plan to murder
by levelling a calculated attack on the victim to annihilate him,
have been held to be fit cases for imposing death penalty.
Where innocent minor children, unarmed persons, hapless C
women and old and infirm persons have been killed in a brutal
manner by persons in dominating position, and where after
ghastly murder displaying depraved mentality, the accused
have shown no remorse, death penalty has been imposed.
Where it is established that the accused is a confirmed criminal
and has committed murder in a diabolic manner and where it D
is felt that reformation and rehabilitation of such a person is
impossible and if let free, he would be a menace to the society,
this Court has not hesitated to confirm death sentence. Many
a time, in cases of brutal murder, exhibiting depravity and sick
mind, this Court has acknowledged the need to send a E
deterrent message to those who may embark on such crimes
.in future. In some cases involving brutal murders, society's cry
for justice has been taken note of by this court, amongst other
relevant factors. But, one thing is certain that while deciding
whether death penalty should be awarded or not, this Court has F
in each case realizing the irreversible nature of the sentence,
pondered over the issue many times over. This Court has
always kept in mind the caution sounded by the Constitution
Bench in Bachan Singh that judges should never be
bloodthirsty but has wherever necessary in the interest of G
society located the rarest of rare case and exercised the
tougher option of death penalty.
81. In the nature of things, there can be no hard and fast
rules which the court can follow while considering whether an
H
702 SUPREME COURT REPORTS [2013) 16 S.C.R.
A accused should be awarded death sentence or not. The core
of a criminal case is its facts and, the facts differ from case to
case. Therefore, the various factors like the age of the criminal,
his social status, his background, whether he is a confirmed
criminal or not, whether he had any antecedents, whether there
B is any possibility of his reformation and rehabilitation or whether
it is a case where the reformation is impossible and the
accused is likely to revert to such crimes in future and become
a thre~t to the society are factors which the criminal court will
have to examine independently in each case. Decision whether
c to impose death penalty or not must be taken in light of guiding
principles laid down in several authoritative pronouncements of
this Court in the facts and attendant circumstances of each
case.
82. We must also bear in mind that though, the judicial
D proceedings do take a long time in attaining finality, that would
not be a ground for commuting the death sentence to life
imprisonment. Law in this behalf has been well settled in
Triveniben. The time taken by the courts till the final verdict is
pronounced cannot come to the aid of the accused in
E canvassing commutation of death sentence to life
imprisonment. In Triveniben, the Constitution Bench made it
clear that though ordinarily, it is expected that even in this Court,
the matters where the capital punishment is involved, will be
given top priority and shall be heard and disposed of as
F expeditiously as possible but it could not be doubted that so
long as the matter is pending in any court, before final
adjudication, even the person who has been condemned or
who has been sentenced to death has a ray of hope. It,
therefore, could not be contended that he suffers that mental
G torture which a person suffers when he knows that he is to be
hanged but waits for the doomsday. Therefore, the appellant
cannot draw any support from the fact that from the day of the
crime till the final verdict, a long time has elapsed. It must be
remembered that fair trial is the right of an accused. Fair trial
H involves following the correct procedure and giving opportunity
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 703
[RANJANA PRAKASH DESAI, J.]
to the accused to probabalize his defence. In a matter such as A
this, hurried decision may not be in the interest of the appellant.
83. We must now examine the present case in ligtit of our
observations in the preceding paragraphs. The appellant was
the State President of the Youth Congress in Delhi. The 8
deceased was a qualified pilot and she was also the State
General Secretary of Youth Congress (Girls Wing), Delhi. She
was an independent lady, who was capable of taking her own
decisions. From the evidence on record, it cannot be said that
she was not in touch with people residing outside the four walls C
of her house. Evidence discloses that even on the date of
. incident at around 4.00 p.m. she had contacted PW-12 Matloob
Karim. She was not a poor illiterate hapless woman.
Considering the social status of the deceased, it would be
difficult to come to the conclusion that the appellant was in a
dominant position qua her. The appellant was deeply in love D
with the deceased and knowing full well that the deceased was
very close to PW-12 Matloob Karim, he married her hoping that
the deceased would settle down with him and lead a happy life.
The evidence on record establishes that they were living
toge.ther and were married but unfortunately, it appears that the E
deceased was still in touch with PW-12 Matloob Karim. It
appears that the appellant was extremely possessive of the
deceased. The evidence on record shows that the appellant
suspected her fidelity and the murder was the result of this
possessiveness. We have noted that when the appellant was F
taken to Lady Hardinge Mortuary and when the dead body was
shown to him, he started weeping. It would be difficult, therefore,
to say that he was remorseless. The fact that he absconded is
undoubtedly a circumstance which will have to be taken against
him, but the same, in our considered view, would be more G
relevant to the issue of culpability of the accused which we have
already decided against him rather than the question of what
would be the appropriate sentence to be awarded which is
presently under consideration. The medical evidence does not
establish that the dead body of the deceased was cut. The H
704 SUPREME COURT REPORTS [2013] 16 S.C.R.
A second post-mortem report states that no opinion could be
given as to whether the dead body was cut as dislocation could
be due to burning of the dead body. There is no recovery of
any weapon like chopper which could suggest that the appellant
had cut the dead body. It is pertinent to note that no member
B of the family of the deceased came forward to depose against
the appellant. In fact, in his evidence, PW-81 10 Niranjan Singh
stated that the brother and sister-in-law of the deceased stated
that they were under the obligation of the appellant and they
would not like to depose against him. Murder was the outcome
c of strained personal relationship. It was not an offence against
the Society. The appellant has no criminal antecedents. He is
not a confirmed criminal and no evidence is led by the State
to indicate that he is.likely to revert to such crimes in future. It
is, therefore, not possible in the facts of the case to say that
there is no chance of the appellant being reformed and
0
rehabilitated. We do not think that that option is closed. Though
it may not be strictly relevant, we may mention that the appellant
is the only son of his parents, who are old and infirm. As of
today, the appellant has spent more than 10 years in death cell.
Undoubtedly, the offence is brutal but the brutality alone would
E not justify death sentence in this case. The above mitigating
circumstances persuade us to commute.the death sentence to
life imprisonment. In several judgments, some of which, we have
referred to hereinabove, this Court has made it clear that life
sentence is for the whole of remaining life subject to the
F remission granted by the appropriate Government under
Section 432 of the Cr.P.C., which, in turn, is subject to the
procedural checks mentioned in the said provision and further
substantive checks in Section 433-A of the Cr.P.C. We are
inclined to issue the same direction.
G
84. We have already confirmed the conviction of the
appellant for offence punishable under Section 302 of the. IPC
and for offence punishable under Section 120-B read with
Section 201 of the IPC. In view of the above discussion, we
H commute the death sentence awarded to appellant - Sushil
SUSHIL SHARMA v, STATE OF N.C.T. OF DELHI 705
[RANJANA PRAKASH DESAI, J.]
Sharma to life sentence. We make it clear that life sentence is A
for the_whole of remaining life of the appellant subject to the
remission granted by the appropriate Government under
Section 432 of the Cr.P.C., which, in turn, is subject to the
procedural checks mentioned in the said provision and further
substantive checks in Section 433-A of the Cr.P.C. B
85. Appeal is disposed of in the aforestated terms.
Bibhuti Bhushan Bose Appeal disposed of.
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