Print edition : December 05, 2003

The trial courts' verdicts in the Naina Sahni and Safdar Hashmi murder cases revive the debate on the merits of awarding the death sentence, even in `rarest of rare' cases.

in New Delhi

THE judiciary in India has been under an obligation to justify its decision if the death sentence is imposed on murder convicts, especially after the Supreme Court ruled in the Bachan Singh case (1980) that the death penalty should not be imposed, save in the `rarest of rare cases' when the alternative remedy is unquestionably foreclosed. However, courts in India have interpreted the doctrine of `rarest of rare cases' in different ways, considering the circumstances of each case. This has led to their reaching conflicting conclusions on the need to impose the death penalty, inviting the criticism that they are inconsistent and sometimes illogical. Such lack of consistency in similar cases, it is felt, militates against the principles of fairness, justice and due process.

The recent verdicts by trial courts in the Naina Sahni and Safdar Hashmi murder cases used the doctrine of `rarest of rare' cases to reach different conclusions on whether the convicts deserved to be punished with death.

In his verdict in the Hashmi case, the Judge said: "In the context of the present case, a reformatory theory of punishment should be adhered to. In my opinion, it does not fall within the category of rarest of rare cases. Therefore, I do not find it appropriate to award extreme penalty."

In the Naina Sahni case, Additional Sessions Judge, Delhi, G.P. Thareja, delivering his verdict on November 7, sentenced Sushil Sharma, former president of the Delhi Pradesh Youth Congress, to death and his accomplice Keshav Kumar, a restaurant manager at the time when the crime was committed, to seven years' rigorous imprisonment for criminal conspiracy.

NAINA SAHNI, who was living with Sushil Sharma, was murdered by him in her rented house at Gole Market in New Delhi on July 2, 1995. After the murder, Sharma cut her body into pieces, stuffed them into a gunny bag, which he took to the Bagiya restaurant, since wound-up, in Hotel Ashok Yatri Niwas off Janpath for disposal in a tandoor (oven). An alert beat constable of the Delhi Police foiled the attempt.

Naina was a political activist and her alleged relations with another activist provoked Sharma into committing the murder.

While in the Safdar Hashmi case the Judge did not explain why it did not fall in the rarest of rare category, in the Naina Sahni case the Judge explained how the case qualified as one. Sharma's actions, the Judge claimed, matched the conditions that describe the rarest of rare cases in Clauses I and V of the Supreme Court's verdict in Macchi Singh vs State of Punjab (1983).

In Clause I, the Supreme Court explained what manner of commission of murder could be described as one in the rarest of rare category. It said: "When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community." For instance, the court said, when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner, then it could be said that the murder was committed in an extremely brutal manner.

In the case of Sharma, the trial court concluded that he committed the murder with a revolver at the victim's flat. The court conceded that the law punished the disposal of a body and the destruction of evidence under Section 201 of the Indian Penal Code (IPC). Therefore, what Sharma did at Bagiya restaurant should not be considered, in the matter of award of sentence, under Section 302 of the IPC, the trial court said. Thus, the court's finding that Clause I of the judgment in the Macchi Singh case would apply in Sharma's case is unconvincing.

In Clause V of the judgment in the Macchi Singh case, the Supreme Court dealt with the personality of the victim, to reach the conclusion whether the case was in the `rarest of rare' category. The court said that when the victim was a person vis-a-vis whom the murderer was in a position of domination or trust, such a conclusion would be valid. The trial court concluded that Naina Sahni was a helpless woman, as she had left her parents and had been living with Sharma without a recognised formal marriage. The trial court felt that Sharma could not be considered for capital punishment for the murder by firing a shot, as it was not uncommon. Therefore, it felt that other factors had to be considered. Her dependence on Sharma was a key factor, which justified the award of capital punishment to Sharma, the court reasoned.

THE trial court seems to have ignored the observations of the Supreme Court in cases where it commuted to life term the death sentences imposed by the trial court and confirmed by the High Court. In Bachhitar Singh vs State of Punjab (2002), the Supreme Court suggested that there ought to be evidence to show that the convicts would be a menace and threat to the harmonious and peaceful coexistence of society. In an earlier case the same year (Prakash Dhawal Khairnar vs State of Maharashtra), the Supreme Court had held that the crime was no doubt heinous and brutal - the accused had killed his brother, brother's wife and children following a land dispute - but it would be difficult to hold it as a "rarest of rare" case. The court said it would be difficult to hold the view that the appellant-convict was a menace to society and felt that there was no reason to believe that he could not be reformed or rehabilitated and that he was likely to continue the criminal acts of violence as would constitute a continued threat to society.

Sushil Sharma did not permit his counsel to argue before the trial court on the award of sentence, and has reportedly decided not to appeal against its judgment in the High Court. Meanwhile, the debate on the merits of death sentence will continue.

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