Priyanka Ray

18010289

Prof. S. Mercy Deborah

Criminal Procedure Code

4th June, 2020

Case Brief on the Tandoor Murder Case

Introduction

The Tandoor murder case1 is the murder of Naina Sahni which is a very shocking case for
the justice and criminal system. Finding a woman's body chopped into pieces and in a burnt state
in the tandoor of a Delhi restaurant, disturbed the country's morals to an unimaginable level.

“Maxwell Pereira in his book titled The Tandoor Murder2 reconstructed the gruesome crime
scene that took place on the night of 2 July 1995 when Constable Kunju, deployed at the
Connaught Place police station, discovered that ‘a murdered woman’s corpse’ was being
cremated in the middle of night in a secret manner. He went on to describe the turbulent journey
from investigation to trial where witnesses turned hostile because the high-profile accused used
all his muscle and money power to escape. The trial court handed down a death sentence to the
accused, which was confirmed by the High Court. The apex court partly allowed the appeal of
the accused and ended up commuting his death sentence while ignoring the ruthless murder3
“because murder was the outcome of strained personal relationship. It was not an offence against
the society”.”4

1
Sushil Sharma vs State NCT of Delhi (2014) 4 SCC 317
2
Maxwell, P. (2018). The Tandoor Murder: The Crime That Shook the Nation and Brought the Government to Its
Knees. Chennai: Westland Publications.
3
It is not the author is in favor of the death penalty; rather, the arguments given to commute the death sentence are
unreasonable.
4
(Nigam, 2019)
Background

a) Facts established and acknowledged without doubt

Sushil Sharma, the owner of Bagia Bar-be-Que, kept the co-accused Keshav Kumar in
the restaurant at Ashoka Road. The charred corpse was later found to be Naina Sahni’s who
was a victim of homicidal death. The post-mortem report revealed bullets in the neck and
skull. The ballistic expert had found that this was fired from an Arminus .32” revolver which
was later found in Sharma’s Mandir Marg flat along with other blood stained articles. A
blood stained kurta was also recovered from Rangpuri when he was in police custody. The
blood of AB group matched with Naina Sahni’s who wasn’t seen alive after 2nd July 1995.
She was killed on being suspected of having an affair with Matloob Karim and had also
asked her husband to publicly acknowledge their marriage. So he had sufficient motive to kill
her.5

b) Statutory and legal issues

 The second autopsy and circumstantial evidence (DNA) was used to put up the case
and prove the accused guilty.
 Strained relation among the couple prompted the outrage, followed by further
unexpected incitement which angered him and provoked him to commit such a
horrifying crime.
 Conspiracy to destroy evidence of the case.
 Sections 346 and 377 of the Indian Penal Code (IPC) come into play in the case of
Kumar and Sharma were held equally liable for the offence.
 The fact that Kumar helped in burning the corpse and also facilitated in Sharma’s
escape beings in section 120 B of the IPC8. Section 2019 helps in understanding how

5
2013 (2) SSC 693: Refer to the full judgment of the case.
6
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons
is liable for that act in the same manner as if it were done by him alone.
7
When an offence is committed by means of several acts, whoever intentionally co-operates in the commission of
that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence.
8
Punishment of criminal conspiracy
9
Causing disappearance of evidence of offence, or giving false information to screen offender.
 Sharma is liable for hiding evidence and misinforming the police by saying that old
Congress posters were being burnt.10
 Sharma’s escape with the help of Kumar falls under Section 21211.
 Punishment for the crime which is dealt with in Section 30212 of the IPC.
c) Case laws
 Mahendra Nath Dass vs. State of Assam13 was considered to be a rarest of rare case
after applying the doctrine because the convict had royally taken the body to the
police station after cutting off the head and amputating the hand. In our present case,
the apex court commuted the death penalty although this was a case of severe
criminality.
 In Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra, the Court
commuted the death penalty and said that the manner of disposing the body after
murdering their friend wasn’t a rarest of rare case and the appellant could be
reformed as seen in our case.
 In the case of Mohd. Chaman vs. State (N.C.T. of Delhi), the Supreme Court had
dismissed the death penalty of the appellant who had caused the death of a one year
old girl by raping her and causing injuries, by saying that he was not a risk to the
community.

Capital Punishment in India

The two techniques for capital punishment in India are shooting and hanging. As
indicated by the Criminal Procedure Code, the strategy for execution in the non military
personnel court framework is hanging. Wrongdoings deserving of death in India incorporate
crimes relating to terrorism bringing about death, terrorism-related crimes that do not result in
death, aggravated murder, offences that result in death, kidnapping not bringing about death,
rape that does not result in death, espionage, treason, military offenses not bringing about death
10
Chapter IX, of false evidence and offences against public justice-Causing disappearance of evidence of offence, or
giving false information to screen offender (Sec.201 IPC), Taxmann’s Criminal Major Acts.
11
Harbouring offender.
12
Punishment for murder.—Whoever commits murder shall be punished with death, or 1[imprisonment for life], and
shall also be liable to fine.
13
AIR 1999 SC 1926
and drug trafficking that does not result in death. The decisions in Bachan Singh vs. State of
Punjab assume an essential job in choosing whether any wrongdoing merits capital punishment
or not. It proposes that offenses bringing about death are deserving of death only on meeting
"rarest of rare" norm as told in the case of Bachan Singh. Mithu vs. State of Punjab judgment
expresses that capital punishment is anything but an obligatory discipline for the crimes
mentioned above. Obligatory capital punishment had also been decided as unconstitutional by
the Supreme Court. For instance, Section 416 of the CrPC tells us that if a lady condemned to
death is seen as pregnant, the execution of the sentence is to be delayed and may, on the off
chance that it thinks fit, the High Court can reduce the punishment of death penalty and order
such a person to be imprisoned for life. According to the Supreme Court, mental illness can also
be a “mitigating factor” to spare those from the gallows who suffer from such disorders.
Juveniles can also be excluded from death penalty.

Constitutionality of the Death Penalty

In Maneka Gandhi vs. Union of India, “which ensured two essential safeguards: first, that
not all fundamental rights are distinct from one-another. This meant that just because a law
satisfied the requirement of one fundamental right, it was not exempt from operation within the
scheme of other fundamental rights as well. Specifically, in order to be considered constitutional,
a law needed to pass the test of Articles 1414, 19, and 2115 collectively. Further, this judgement
asserted that any procedure established under Article 21 needed to be ‘fair, just and reasonable,’
and couldn’t be ‘fanciful, oppressive, and arbitrary.’”16 Death penalty is violative of the
fundamental rights laid down in the Constitution because it denies equality in the eyes of law and
the right to life and liberty of a person apart from being a gross violation of human rights.

Moreover, it can’t be denied that errors always exist upto a limit in a conviction. An innocent
person could be sentenced to death wrongly which could take away the fundamental rights

14
Article 14 of the Indian Constitution: Equality before law The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth
15
Article 21 of the Indian Constitution: Protection of life and personal liberty No person shall be deprived of his life
or personal liberty except according to procedure established by law
16
(Batra, 2019)
without a valid reason. With a Constitution that is dedicated to ensuring human rights, even the
chance of a mistake ought to be sufficient to not pass a death sentence. While the doctrine of
“rarest of rare” could be viewed as a dynamic move forty years back, we can argue that it is
unconstitutional because of its dependence on personal discretion and also as a result of its
arbitrary nature.

International Instruments that have abolished the Death Penalty

India is a signatory to the International Covenant on Civil and Political Rights (ICCPR),
just like the Universal Declaration of Human Rights, the two which affirm a committed
protection of freedom and life. Article 6(2) of the ICCPR states that “”In countries which have
not abolished the death penalty, sentence of death may be imposed only for the most serious
crimes.” Also, Article 4(4) of the American Convention on Human Rights (ACHR) states that
the death penalty shall not be inflicted "for political offences or related common crimes.”17 In the
Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, it is said
that only serious crimes can be dealt with death penalty. Three international treaties, the
European Convention on Human Rights, the ICCPR and the American Convention on Human
Rights to Abolish the Death Penalty have been adopted by the association of nations to abolish
death penalty. There are many countries that have abolished death penalty and some nations have
not practiced it for years. Others keep it restricted to only some offenders. The statement that
capital punishment hinders wrongdoing more successfully than different punishments is
currently to a great extent ruined by the absence of logical proof regardless of the numerous
studies conducted. Frequently, the national discussion on capital punishment is directed in
absolutely national terms but the international aspect needs to be discussed.

Analysis
The judgement for the Tandoor murder case took over 10 years. This can be clearly
understood from the fact that Sharma was Delhi Youth Congress’s President. Therefore political
influence had a big role. Sharma had said, “that one day is blur in my life. Till today, I do not

17
(Prokosch, 2020)
know what happened. It happened in a fraction of a second and that one second has cost me 20
years.”18 He never denied killing her but denied chopping her body. The Supreme Court
judgement reads, “...medical evidence does not establish that the body was cut. There is also no
recovery of any weapon like a chopper which could suggest that Sharma had cut the body…”19
Continuous mentions of the constrained relationship between Sharma and Sahni became an
important criterion for the final decision. Death penalty being commuted to life sentence wasn’t
very difficult to acknowledge. However, the reasoning given by the Court is incompatible when
compared to earlier cases dealing with similar issues.

The district court in 2003 awarded him death penalty. This lead to his mercy plea in the Delhi
High Court. The judgement in 2007 said: “People like the appellant who are power drunk and
have no value for human life are definitely a menace for the society at large and deserve no
mercy. … The act of the appellant is so abhorrent and dastardly that in case death penalty is not
awarded to him it would be a mockery of justice and conscience of the society at large would be
shocked. This is surely a case which falls within the category of ‘rarest of rare cases’ in which no
other punishment except the death penalty would be justified.”20 However in 2014, the apex
court stated that “Undoubtedly the offence is brutal but the brutality alone would not justify the
death sentence in this case.”21 The capital punishment was commuted to life imprisonment with
remission by the government under Section 432 of CrPC22 which can undergo procedural
inquiries and substantive inquiries under Section 433-A of CrPC23.

“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 common in this case
which renders the sentence to life imprisonment inadequate and calls for death sentence....The

18
Lama, P., & Pillai, S. (2015). '1 second cost me 20 years': Tandoor murder convict Sushil Sharma. Retrieved 12
June 2020, from https://www.hindustantimes.com/delhi/1-second-cost-me-20-years-tandoor-murder-convict-sushil-
sharma/story-GebiySgpRBO4pHnHNHKw8I.html
19
2013 (2) SSC 693: Refer to the full judgment of the case.
20
Excerpt from the judgment made by the Delhi High Court in appeal Sushil Sharma vs. The State (NCT) of Delhi
(2007)
21
("Sushil Sharma Vs. State of N.C.T. of Delhi | Latest Supreme Court Judgments | Law Library | AdvocateKhoj",
2020)
22
Power to suspend or remit sentences.
23
Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on
conviction of a person for an offence for which death is one of the punishments provided by law, or where a
sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such
person shall not be released from prison unless he had served at least fourteen years of imprisonment.
core of a criminal case is its facts and, the facts differ from case to case.”24 The commutation of
capital punishment keeping in mind its unconstitutionality that has been discussed might not be
wrong in our present case but the reasoning given by the Court was a complete mockery. The
calculated and methodical elimination of evidence was not considered as “extremely
brutal,...revolting...” by the court. Thus, it wasn’t provoking enough and he wasn’t seen as a
threat to the society. The motivation behind the murder was the possessive husband’s love which
had supposedly vanished when he was brutally burning his wife’s body. Although there were
incidents of domestic abuse that were testified by the housemaid, the court could not find
“criminal antecedents” and gave an illogical reasoning of reformation of appellant for the
commutation. The validity of the “rarest of rare” doctrine is highly questionable under such
circumstances.

Conclusion
Capital punishment given by the trial court, approved by the High Court but the apex
court commutes this to life imprisonment. This has become more of a trend now. People begin to
take crimes for granted when the Court includes provisions and rules that compel one to question
the authenticity of judgements. The order of the Tandoor Murder Case still resonates. It says:
“Considering the social status of the deceased, it would be difficult to come to the conclusion
that the appellant was in dominant position qua her. It appears that the appellant was extremely
possessive of the deceased…the appellant suspected her fidelity and the murder was the result of
this possessiveness.”25 The judgement which was filled with illogical reasoning gave out an
inaccurate message that the crime was not horrifying enough to be considered a ‘rarest of rare’26
type even though the victim’s body was chopped to burn in a tandoor by her lover. This raises
the question of how horrific and brutal a crime has to be in order to be considered ‘rarest of rare’
and whether capital punishment should still be avoided to keeping in mind the Constitution.

24
Sushil   Sharma   v.   State   (NCT)   of   Delhi  (2014) 4 SCC 317
25
Sushil Sharma vs. The State of N.C.T. of Delhi LNIND 2013 SC 925
26
Pal, D. (2013). What Tandoor murder verdict ignores: 'women like us' are beaten up too - Firstpost. Retrieved 12
June 2020, from https://www.firstpost.com/india/what-tandoor-murder-verdict-ignores-women-like-us-are-beaten-
up-too-1163887.html
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