# SUSHIL SHARMA v. THE STATE OF N.C.T. OF DELHI

- **Citation:** [2013] 16 S.C.R. 616
- **Court:** Supreme Court of India
- **Decided:** 2013-10-08
- **Case number:** Criminal Appeal No.693 of 2007
- **Bench:** P. Sathasivam, Ranjana Prakash Desai, RANJAN GOGOi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sushil-sharma-v-the-state-of-n-c-t-of-delhi-29010
- **Pages:** 90

## Headnote

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 d

## Text

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A
B
[2013] 16 S.C.R. 616
SUSHIL SHARMA
v.
THE STATE OF N.C.T. OF DELHI
(Criminal Appeal No.693 of 2007)
OCTOBER 8, 2013
[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.
D
Disposing of the appeal, the Court
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
0
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 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-AG
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 coldblooded, 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
0 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. 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; 704A-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 Raj put 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.
D
E
F
G
H
Case Law Reference :
1979 (4) sec 346
2007 (7) SCR 616
(1980) 2 sec 684
2009 (9) SCR 90
2001 (3) SCR 669
2008 (11) SCR 93
referred to
referred to
followed
referred to
referred to
referred to
2006 (10) Suppl. SCR 662 referred to
2011 (14) SCR 921
2009 (9) SCR 864
(2001) 2 sec 2a
•
2009 (16) SCR 322
(201 O) 1 sec 58
(2011) 13 sec 106
(2012) 4 sec 101
1983 (3) SCR 413
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
Para 59
Para 59
Para 59
Para 59
Para 59
Para 59
Para 59
Para 59
Para 59
Para 59
Para 59
Para 59
Para 59
Par'a 59
Para 59
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
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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
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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.
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PROSECUTION CASE:
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
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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 -
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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.
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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
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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
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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
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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 PW7 Anaroo Devi saying 'hotel main aag lag gayt' (hotel is on
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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
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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
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increased. PW-3 HC Kunju and PW-4 Home Guard Chander
Pal, in order to find out the cause of the same, entered the Barbe-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.
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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
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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
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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.
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He was arrested. His blood stained clothes were seized. PW81 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
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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
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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
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[2013] 16 S.C.R.
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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
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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
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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:
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F
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"(Eyes, Ears, Nose, Mouth, Teeth and Tongue etc.)
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.
EXTERNAL EXAMINATION:-
Revealed extensive charring of a female dead body
beyond identification, having attained a Pugilistic attitude
owing to coagulation of the muscle proteins.
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
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
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were destroyed and collapsed due to burns.
THORAX
Burnt as mentioned above. Leg was chopped off 23 cm.
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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
A
B
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D
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[2013] 16 S.C.R.
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
gms. (Lt) 210 gms (Rt.)
Abdominal wall, peritoneum: Abdominal and pelvic walls
burnt, peritoneum- partly burnt.
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
.noticed."
12. CW-6 Dr. Sarangi opined provisionally that the cause
of death was "hemorrhagic shock consequent to various antemortem injuries found on the dead body". According to CWE
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
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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, it c
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 kurtapajama 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 postmortem 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 PW44 Dr. Bharat Singh. During the course of the second postmortem 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".
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[2013] 16 S.C.R.
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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 - PW70 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.
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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.
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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
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
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of A2-Keshav burnt her dead body in the tandoor of Bagia Barbe-Que.