Admin Judgement File Judgement PDF 2013 Volume 16 Part I 2013-27-616-705 1704376245
Admin Judgement File Judgement PDF 2013 Volume 16 Part I 2013-27-616-705 1704376245
Admin Judgement File Judgement PDF 2013 Volume 16 Part I 2013-27-616-705 1704376245
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.]
H 616
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 617
G
(201 O) 1 sec 58 referred to Para 59
(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
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.
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.
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.
F EXTERNAL EXAMINATION:-
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.
THORAX
THE TRIAL:
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:
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 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.
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.
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
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.
(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;
H
SUSHIL SHARMA v. STATE OF N.C.T. OF DELHI 683
[RANJANA PRAKASH DESAI, J.]
SUBMISSIONS ON SENTENCE: A
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.
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: