Trials of Truth

by Pinky Anand

  Sharma, in the meanwhile, had fled to Bombay and then to Madras. Upon finding out about his arrest warrant, he applied for anticipatory bail in the sessions court in Madras, which was granted to him, but later rejected by the Madras High Court. Sharma was later arrested in Bangalore by the local police on 10 July and handed over to the Delhi police on 11 July. On investigating the hotel room where the accused had stayed, they found a .32-bore revolver, four live cartridges and some other documents.

  A second autopsy was also conducted. It was concluded upon an X-ray examination that there was one lead bullet in the skull and one in the neck of the deceased. The cartridges found in the flat of the accused and the lead bullets found in the body of the deceased were sent to the Central Forensic Science Laboratory, and were confirmed to have been fired from the same revolver. They also found a kurta with the blood of the deceased on it.

  The use of the tandoor to attempt to cover up the murder is what truly horrified people and made this become a case people could not stop talking about. Not many people remember that the tandoor was not the weapon of the murder, that Naina had been shot to death and the tandoor was only used to destroy the body.

  The Supreme Court categorically admits that there is a very thin line between awarding the death penalty and a life sentence. The manifest arbitrariness evident on the face of the record in Supreme Court judgments has time and again invited the ire of scholars. The Sushil Sharma verdict exemplifies the cause of this dilemma. This case primarily revolved around two key issues. Firstly, it highlights the importance of a false plea of alibi in weakening the case of the accused. Secondly, it analyses the submissions made by the petitioner and respondent regarding the sentencing of the accused and concludes that the facts and circumstances of the case allowed the Supreme Court to reduce the punishment from the death penalty to sentence unto life, subject to remission allowed.

  The second issue is what makes this case significant in the context of the prioritization of mitigating factors while determining whether a case is one of death penalty. This case is unique for prioritizing the nature of the criminal over the nature of the crime while sentencing. It becomes necessary in the context to examine the sociological and legal foundations of this judgment, and to answer the larger question of the nature of the imposition of penalties in cases involving brutality in crime.

  The following two questions were the highlights of this case, which we will delve into as well:

  Should the focus of the death penalty be the nature of the crime or that of the criminal?

  What factor(s) should be prioritized while deciding between life sentencing and the death penalty? Is the age of the accused a mitigating factor?

  Is there a possibility of reform in the present case? To what extent is the possibility of reform to be prioritized?

  To what extent is brutality in the murder an obstacle to mitigating the sentence of the accused?

  The Trial

  The trial was held in the sessions court in Delhi where Sharma pleaded that due to the media furore and the misdirected public hatred he would be subjected to an unfair and unjust trial. Therefore, he claimed, he should either be discharged or the trial be postponed. On being denied the relief he sought, he then appealed to the Delhi High Court, which found that the media exposure did not prejudice the accused. The petition was dismissed.

  Justice Thareja awarded capital punishment to Sharma, placing the case in the ‘rarest of rare’ category, warranting the imposition of the extreme punishment. Interestingly, Justice Thareja, who had convicted Sharma for being guilty beyond doubt, had earlier had to acquit a man he believed was guilty in the Priyadarshini Mattoo murder case. Sharma’s accomplice, Keshav Kumar, the restaurant manager at the time, was sentenced to seven years’ rigorous imprisonment for criminal conspiracy. Jai Prakash Pehalwan, Rishi Raj Rathi and Ram Prakash Sachdeva, accused of sheltering Sharma after the murder, were acquitted for want of evidence.

  During the course of the trial, hordes of media persons turned up at the Tis Hazari court. A group of about fifty protesters entered the court premises with a tandoor and demanded the death penalty for Sharma.

  In December 2013, the Delhi High Court admitted an appeal filed by Sushil Sharma, challenging his conviction and death sentence by the trial court. A division bench of Justices Vijender Jain and R.C. Jain also admitted for hearing the reference sent by the trial court.

  Sharma had sought to get the order of the additional sessions judge G.P. Thareja reversed on the grounds that the trial court failed to appreciate the evidence on record, which did not support the prosecution case. He also made his case that ‘the sessions court failed to appreciate that there was no evidence to support the use of firearms in the murder. The case is based on circumstantial evidence but the link connecting the accused with the crime is missing at several points’. Sharma also made references regarding Matloob Karim’s vested and conflicting interest in the case. However, the high court rejected these assertions and upheld the verdict of the trial court in this case.

  On the other hand, the Supreme Court saw the case differently. Holding that the homicide by Sushil Sharma of his significant other was the result of a strained individual relationship and not an offence against society, the Supreme Court commuted the capital punishment to life imprisonment for whatever was left of his life.

  The Supreme Court first analysed the case at hand and reached the conclusion that the accused are indeed liable to be convicted for committing the heinous crime of murder and brutally disposing of the body of the accused. Thereafter, it examined whether or not it would be appropriate to award the death penalty, given the facts and circumstances.

  To determine the same, the court took into consideration various judgments laid down by it in the past to understand the circumstances in which the death penalty has been awarded instead of a mere life sentence to the accused. The court referred to one such past judgment1 in which the accused had committed seventeen murders in five incidents, occurring in the same night in quick succession in five neighbouring villages, as a result of a family feud, with the motive of reprisal. Some of the accused were sentenced to death. The Supreme Court also referred to the judgment of the constitution bench in the case of Bachan Singh and culled the following propositions as emerging from Bachan Singh’s case:

  (i) The extreme penalty of death need not be inflicted except in the gravest cases of extreme culpability.

  (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’.

  (iii) Life imprisonment is the rule and death sentence is the exception. In other words, the death sentence must be imposed only when life imprisonment appears to be an altogether 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 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 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, the court must ask and answer the following questions:

  (a) Is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence?

  (b) Are the circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

  Considering the facts of the Tandoor murder case, the court made the following observations in light of the mitigating factors, while determining whether or not the death penalty should be awarded. Firstly, it said tha
t the offence at hand had not been one against the society. Since the accused had no previous criminal record and there is no evidence suggesting that he would resort to such crimes in the future, it was possible that the accused would be rehabilitated and reformed if allowed the opportunity to do so. Moreover, it held that brutality alone cannot be grounds for awarding the death penalty to an individual.

  The Supreme Court regarded the criteria enshrined in the case of Bachan Singh,2 where it had, while relying upon another judgment rendered by the US Supreme Court,3 held that in the presence of the following aggravating circumstances, the court may impose the penalty of death in its discretion:

  (a) if the murder has been committed after previous planning and involves extreme brutality; or

  (b) if the murder involves exceptional depravity.

  I believe that the possibility of reform may also be determined by the conduct of the accused. When a person commits a crime that crosses a moral threshold, which the collective conscience of the society deems as morally reprehensive and deplorable, in such situations, it would be incorrect to prioritize the need for reform over the need for punishing the perpetrator proportionately. In this case, the decision that reform is possible in the present case seemed to be based on considerations such as the fact that the accused was weeping in the mortuary upon seeing the dead body.4

  In Subramaniam Swamy v. Union of India, the Supreme Court held that although there is no satisfactory definition of a crime, the word would embrace all acts and omissions which are criminal, and would affect the security or well-being of the public generally. A crime is a moral wrong which is inimical to the general moral sense of the community. In fact, the court also admitted in the following words:

  A crime affects the society. It causes harm and creates a dent in social harmony. When we talk of society, it is not an abstract idea or a thought in abstraction. There is a link and connect between individual rights and the society; and this connection gives rise to community interest at large. It is a concrete and visible phenomenon. Therefore, when harm is caused to an individual, the society as a whole is affected and the danger is perceived.

  The Supreme Court, quoting Kenny’s,5 admitted that any conduct that harms an individual to some extent also harms the society to some extent, since a society is a collection of individuals.

  Be that as it may, I believe that the Supreme Court, in the tandoor murder case, rightly rejected the plea for the death sentence. This individualistic approach to criminal jurisprudence is not only humane but is completely in consonance with sound legal principles already established.

  The Law Commission of India, in its 264th Report, under Paragraph 7.2.4, recommended that although retribution plays an important role in punishment, it cannot be reduced to vengeance. The Law Commission has also consistently maintained that the death penalty is not an effective deterrent. The same has been echoed by agencies of the United Nations and NGOs such as Amnesty International.

  In the Tandoor murder case, the heinous act of the accused of not only murdering the victim but also going ahead and attempting to dispose of her dead body is deplorable to the highest degree. The court, however, evaluated the crime in its essence, away from the societal baying for blood in keeping with a sound jurisprudential legacy. A case for a murder is never a simple crime; it always encompasses myriads of human emotions. As students of law, it falls on us to separate the wheat from the chaff; the quantum of punishment does not just depend on the crime but also on the circumstances around it, including whether it was an isolated incident, an unpremeditated result of provocation, or whether the accused showed remorse.

  Upon a perusal of a variety of Supreme Court judgments, it is apparent that there is always a huge debate about awarding the death penalty. The Death Penalty Research Project, undertaken by researchers at the National Law University in New Delhi, found that over 80 per cent of prisoners facing capital punishment had not completed school and nearly half had begun working before the age of eighteen. While in the Nirbhaya judgment, the Supreme Court completely disregards the age of the accused while determining the possibility for reform, in the Tandoor murder case, the Supreme Court had done the exact opposite by duly regarding age as a factor.

  The court’s decision in examining not just the letter of the law but also the circumstances surrounding the crime has given true meaning to the letter and spirit of ‘rarest of rare’. The land of the Mahatma has, in its essence, ‘reform’ as a building pillar to its penal system. The tandoor murder case is an example of this. Sushil Sharma was a first-time offender, and if the entire matter is viewed objectively, discounting the public ire involved, the matter in its essence was simple murder. The idea that inflamed public prejudice was the barbaric manner in which the body had been disposed of. That the verdict judiciously dealt with the tragedy speaks volumes about the conscientiousness of the society at large, and how it is distinctly removed from that of a barbaric mob.

  Author’s Note

  As a lawyer and public figure, I have been fortunate to have had life-changing experiences. In the last thirty-five years, I have been witness to dynamic changes in laws and how these have impacted society and changed mindsets. As a woman, I have been fortunate to be a part of some of these trials, particularly those that have been watershed cases highlighting the issues of women’s safety and crimes against my gender.

  I see the law as a catalyst for the creation of an ideal society—not what is, but what it is supposed to be. This was taught to me and deeply inculcated in me by one of my Harvard Law professors. The idea that I could bring about change in the world became one of my primary motivations for becoming a lawyer.

  My involvement with societal issues began early with a deeply ingrained sense of ‘right’. As a law student, I was active in the Delhi University political scenario and became the first woman secretary to the Delhi University Students’ Union. That experience further enforced the feeling that as a lawyer I could change our system from what it is to what it should be.

  I think one of the many dynamic features that the interplay between people and the justice system has ensured is a reawakening of the concept of true justice and the re-emergence of the ideal of Satyamev Jayate—which translates to ‘truth alone triumphs’. In particular, such learnings become apparent from cases such as those of Priyadarshini Mattoo and Jessica Lal. Perceptible changes that have come about with the involvement of civil society in controversial cases include dislodging the age-old perception that the high-profile accused will get away scot-free. Another case that changed the world as we used to see it was the Nirbhaya rape case, where the notion of crimes against women was revisited, leading to a paradigm shift in the ideas of victim shaming and blaming, and which led the way for more stringent laws, enforcement mechanisms and security. More importantly it brought to the forefront the way women felt, spearheading the thought process that they should not feel shame in being the victim and should in fact seek reparation and vindication for their suffering.

  This book is my attempt to share how some of the cases that I was exposed to have changed society and, in certain cases, how society has effected the changes in law. Over the years I have realized that it is a two-way street when one sees the law as an instrument of change.

  The inspiration for this book came to me when I met Shobhaa Dé at the ZEE Jaipur Literature Festival in Jaipur in 2016, where we talked about people’s curiosity about legal cases, their desire to understand the nitty-gritty of legal provisions, to know what actually happened in the case, details about the persons involved in the crime, and their overall wish to understand how the system works and responds. This was a different approach, which excited and motivated me, and I readily proceeded to venture into this project.

  However, this was not an easy task. As lawyers, we are used to discussing and analysing the contours of law with all its baggage. While complexity and technicalities are a part of the legal system, the challenge to make concepts palatable and interesting is ano
ther matter itself.

  I have attempted this recording of my impressions over the years to try to provide an insight into how these cases have affected us and our collective thought process as a whole.

  Criminal trials and their progress have always been subjected to intense public curiosity. The public wants to know what happened, why it happened and whether justice prevailed. Unlike civil trials involving money, property and service, criminal trials evoke public sentiment and emotion. I have seen civil society following each and every facet of a criminal trial, not just following but theorizing, analysing and opining. In some cases, the public’s perception of appropriate justice is a far cry from jurisprudential justice. These cases have resonated over the years and left an impact on us.

  Each of the cases narrated has touched a chord within us.

  One thread that runs through these chapters is that most of the crimes seem to be women-centric—be it Nirbhaya, Jessica Lal, Naina Sahni or Vidya Jain—thus shedding light on their extreme vulnerability.

  Another recurring theme one can spot running through these cases is civil-society activism, by which we, as a whole, seek vindication for a crime that we adjudge to be gruesome or cruel. Although I admit that the criminal justice system does suffer from some inherent issues, like delays or failures in investigation, it is apparent that in cases where the criminal justice system falters, civil society takes up the cause, giving succour to the victims and ensuring that justice prevails.