1
REPORTABLE
IN SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
REVIEW PETITION (CRL.) NO. 570 OF 2017
IN
CRIMINAL APPEAL NO. 607 OF 2017
MUKESH ....PETITIONER
VERSUS
STATE OF NCT OF DELHI ....RESPONDENT
J U D G M E N T
ASHOK BHUSHAN J.
The petitioner by this review petition filed
under Article 137 of the Constitution of India prays
to review the final judgment dated 05.05.2017 passed
by this Court by which Criminal Appeal No. 607 of
2017 has been dismissed. The horrific incident which
took place on 16.12.2012 in Delhi wherein a young
2
lady of twenty three years (Nirbhaya, a changed name)
was gang raped and brutally injured who subsequently
died, in which the petitioner was one of the accused.
The petitioner was convicted and awarded death
sentence by Additional Sessions Judge (Special Fast
Track Court) Saket Court Complex New Delhi. Delhi
High Court confirmed the death reference and
dismissed the criminal appeal filed by the petitioner
challenging his conviction and sentence.
2. Aggrieved against the judgment of the Delhi High
Court dated 13.03.2014, Criminal Appeal No. 607 of
2017 was filed by the petitioner which appeal was
dismissed by this Court on 05.05.2017. Now, this
application is filed to review the judgment dated
05.05.2017 dismissing the Criminal Appeal of the
petitioner.
3. Before we enter into the submissions raised in
this review petition, it is useful to recapitulate
the scope and grounds available for exercise of
jurisdiction by this Court under Article 137. Order
3
XLVII Rule 1 of the Supreme Court Rules, 2013 dealing
with review is as follows:
“i. The Court may review its judgment or
order, but no application for review will
be entertained in a civil proceeding except
on the ground mentioned in Order XLVII,
rule 1 of the Code, and in a criminal
proceeding except on the ground of an error
apparent on the face of the record.”
4. In various decisions, this Court has already
settled the law with regards to the maintainability
of review petition under Article 137 of the
Constitution of India read with Order XL Rule 1 of
Supreme Court Rules, 1966 in criminal appeals. Before
we consider the points raised by the accused, we may
usefully refer to some of the decisions.
5. The power of review of the Supreme Court as
envisaged under Article 137 of the Constitution is no
doubt wider than review jurisdiction conferred by
other statutes on the Court. Article 137 empowers the
Supreme Court to review any judgment pronounced or
made, subject, of course, to the provisions of any
4
law made by Parliament or any rule made under Article
145 of the Constitution.
6. An application to review a judgment is not to be
lightly entertained and this Court could exercise its
review jurisdiction only when grounds are made out as
provided in Order XLVII Rule 1 of the Supreme Court
Rules, 2013 framed under Article 145 of the
Constitution of India. This Court in Sow Chandra
Kante and another v. Sheikh Habib, (1975) 1 SCC 674
speaking through Justice V.R. Krishna Iyer on review
has stated the following in para 10:
“10. A review of a judgment is a serious
step and reluctant resort to it is proper
only where a glaring omission or patent
mistake or like grave error has crept in
earlier by judicial fallibility. A mere
repetition, through different counsel, of
old and overruled arguments, a second trip
over ineffectually covered ground or minor
mistakes of inconsequential import are
obviously insufficient.”
7. As per rule, review in a criminal proceeding is
permissible only on the ground of error apparent on
the face of the record. This Court in P.N. Eswara
Iyer and others v. Registrar, Supreme Court of
5
India, (1980) 4 SCC 680 while examining the review
jurisdiction of this Court vis a vis criminal and
civil proceedings had made the following observations
in paras 34 and 35:
“34. The rule, on its face, affords a wider
set of grounds for review for orders in
civil proceedings, but limits the ground
vis-a-vis criminal proceedings to “errors
apparent on the face of the record”. If at
all, the concern of the law to avoid
judicial error should be heightened when
life or liberty is in peril since civil
penalties are often less traumatic. So, it
is reasonable to assume that the framers of
the rules could not have intended a
restrictive review over criminal orders or
judgments. It is likely to be the other way
about. Supposing an accused is sentenced to
death by the Supreme Court and the
“deceased” shows up in court and the court
discovers the tragic treachery of the
recorded testimony. Is the court helpless
to review and set aside the sentence of
hanging? We think not. The power to review
is in Article 137 and it is equally wide in
all proceedings. The rule merely canalises
the flow from the reservoir of power. The
stream cannot stifle the source. Moreover,
the dynamics of interpretation depend on
the demand of the context and the lexical
limits of the test. Here “record” means any
material which is already on record or may,
with the permission of the court, be
brought on record. If justice summons the
Judges to allow a vital material in, it
becomes part of the record; and if apparent
error is there, correction becomes
necessitous.
6
35. The purpose is plain, the language is
elastic and interpretation of a necessary
power must naturally be expansive. The
substantive power is derived from Article
137 and is as wide for criminal as for
civil proceedings. Even the difference in
phraseology in the rule (Order 40 Rule 2)
must, therefore, be read to encompass the
same area and not to engraft an artificial
divergence productive of anomaly. If the
expression “record” is read to mean, in its
semantic sweep, any material even later
brought on record, with the leave of the
court, it will embrace subsequent events,
new light and other grounds which we find
in Order 47 Rule 1, CPC. We see no
insuperable difficulty in equating the area
in civil and criminal proceedings when
review power is invoked from the same
source.”
8. In Devender Pal Singh v. State, NCT of Delhi,
(2003) 2 SCC 501, it was held that review is not
rehearing of the appeal all over again. The review is
not an appeal in disguise. In Suthendraraja alias
Suthenthira Raja alias Santhan and Others vs. State
through Superintendent of Police, CBI, (1999) 9 SCC
323, it was held as under:-
“5. It would be seen that the scope of
review in criminal proceedings has been
considerably widened by the pronouncement
in the aforesaid judgment. In any case
review is not rehearing of the appeal all
over again and to maintain a review
petition it has to be shown that there has
been a miscarriage of justice. Of course,
7
the expression “miscarriage of justice” is
all-embracing…”
9. The scope of review jurisdiction has been
considered by this Court in a number of cases and the
well settled principles have been reiterated time and
again. It is sufficient to refer to judgment of this
Court in Kamlesh Verma vs. Mayawati and others (2013)
8 SCC 320, where this Court has elaborately
considered the scope of review. In paras 17, 18, 20.1
and 20.2 following has been laid down:
“17. In a review petition, it is not open
to the Court to reappreciate the evidence
and reach a different conclusion, even if
that is possible. Conclusion arrived at on
appreciation of evidence cannot be assailed
in a review petition unless it is shown
that there is an error apparent on the face
of the record or for some reason akin
thereto. This Court in Kerala SEB v. Hitech
Electrothermics & Hydropower Ltd. held as
under: (SCC p. 656, para 10)
“10. … In a review petition it is not open
to this Court to reappreciate the evidence
and reach a different conclusion, even if
that is possible. The learned counsel for
the Board at best sought to impress us
that the correspondence exchanged between
the parties did not support the conclusion
reached by this Court. We are afraid such
a submission cannot be permitted to be
advanced in a review petition. The
appreciation of evidence on record is
8
fully within the domain of the appellate
court. If on appreciation of the evidence
produced, the court records a finding of
fact and reaches a conclusion, that
conclusion cannot be assailed in a review
petition unless it is shown that there is
an error apparent on the face of the
record or for some reason akin thereto. It
has not been contended before us that
there is any error apparent on the face of
the record. To permit the review
petitioner to argue on a question of
appreciation of evidence would amount to
converting a review petition into an
appeal in disguise.”
18. Review is not rehearing of an original
matter. The power of review cannot be
confused with appellate power which enables
a superior court to correct all errors
committed by a subordinate court. A
repetition of old and overruled argument is
not enough to reopen concluded
adjudications. This Court in Jain Studios
Ltd. v. Shin Satellite Public Co. Ltd.,
held as under: (SCC pp. 504-505, paras 11-
12)
“11. So far as the grievance of the
applicant on merits is concerned, the
learned counsel for the opponent is right
in submitting that virtually the applicant
seeks the same relief which had been
sought at the time of arguing the main
matter and had been negatived. Once such a
prayer had been refused, no review
petition would lie which would convert
rehearing of the original matter. It is
settled law that the power of review
cannot be confused with appellate power
which enables a superior court to correct
all errors committed by a subordinate
court. It is not rehearing of an original
9
matter. A repetition of old and overruled
argument is not enough to reopen concluded
adjudications. The power of review can be
exercised with extreme care, caution and
circumspection and only in exceptional
cases.
12. When a prayer to appoint an arbitrator
by the applicant herein had been made at
the time when the arbitration petition was
heard and was rejected, the same relief
cannot be sought by an indirect method by
filing a review petition. Such petition,
in my opinion, is in the nature of ‘second
innings’ which is impermissible and
unwarranted and cannot be granted.””
20.1. When the review will be maintainable:
(i) Discovery of new and important matter
or evidence which, after the exercise of
due diligence, was not within knowledge of
the petitioner or could not be produced by
him;
(ii) Mistake or error apparent on the face
of the record;
(iii) Any other sufficient reason.
The words “any other sufficient reason”
have been interpreted in Chhajju Ram v.
Neki and approved by this Court in Moran
Mar Basselios Catholicos v. Most Rev. Mar
Poulose Athanasius to mean “a reason
sufficient on grounds at least analogous to
those specified in the rule”. The same
principles have been reiterated in Union of
India v. Sandur Manganese & Iron Ores Ltd.
20.2. When the review will not be
maintainable:
(i) A repetition of old and overruled
argument is not enough to reopen concluded
adjudications.
(ii) Minor mistakes of inconsequential
import.
10
(iii) Review proceedings cannot be equated
with the original hearing of the case.
(iv) Review is not maintainable unless the
material error, manifest on the face of
the order, undermines its soundness or
results in miscarriage of justice.
(v) A review is by no means an appeal in
disguise whereby an erroneous decision is
reheard and corrected but lies only for
patent error.
(vi) The mere possibility of two views on
the subject cannot be a ground for review.
(vii) The error apparent on the face of
the record should not be an error which
has to be fished out and searched.
(viii) The appreciation of evidence on
record is fully within the domain of the
appellate court, it cannot be permitted to
be advanced in the review petition.
(ix) Review is not maintainable when the
same relief sought at the time of arguing
the main matter had been negatived.”
10. This Very Bench speaking through one of us
(Justice Ashok Bhushan) had occasion to consider the
ambit and scope of the review petition in a criminal
proceeding in Vikram Singh alias Vicky Walia and
another vs. State of Punjab and another (2017) 8 SCC
518. In para 23 of the judgement following has been
stated:
“23. In view of the above, it is clear that
scope, ambit and parameters of review
jurisdiction are well defined. Normally in
a criminal proceeding, review applications
11
cannot be entertained except on the ground
of error apparent on the face of the
record. Further, the power given to this
Court under Article 137 is wider and in an
appropriate case can be exercised to
mitigate a manifest injustice. By review
application an applicant cannot be allowed
to reargue the appeal on the grounds which
were urged at the time of the hearing of
the criminal appeal. Even if the applicant
succeeds in establishing that there may be
another view possible on the conviction or
sentence of the accused that is not a
sufficient ground for review. This Court
shall exercise its jurisdiction to review
only when a glaring omission or patent
mistake has crept in the earlier decision
due to judicial fallibility. There has to
be an error apparent on the face of the
record leading to miscarriage of justice to
exercise the review jurisdiction under
Article 137 read with Order 40 Rule 1.
There has to be a material error manifest
on the face of the record with results in
the miscarriage of justice.”
11. Applying the parameters of the review
jurisdiction as noticed above, we now proceed to
examine the grounds given in the review petition to
find out as to whether there are any grounds for
exercising the review jurisdiction by this court to
review the judgment dated 05.05.2017.
12
12. We have heard Shri M.L.Sharma learned counsel
appearing for the petitioner and Shri Sidharth Luthra
learned senior counsel appearing for the respondent.
13. In support of the review petition, Shri Sharma
has raised various submissions which according to Mr.
Sharma furnish grounds to review the judgment to
protect the fundamental rights of the petitioner
guaranteed under Articles 21, 20(3), 22(1) and 22(2)
of the Constitution of India. We now proceed to
examine the submissions in seriatim.
14. Shri Sharma submits that police arrested Mukesh
from Karoli, the State of Rajasthan on 17.12.2012 in
the morning and he was shown to be arrested in the
evening of 18.12.2012 at Safdarjung Hospital in
Delhi. He submits that Mukesh was not produced before
the concerned Magistrate within twenty four hours of
his arrest at Karoli which is violative of rights
guaranteed under Articles 22(1) and 22(2).
13
15. Shri Sharma has further contended that police
has coerced the petitioner to give his vakalatnama in
favour of one V.K. Anand advocate, who was police
sponsored advocate. He submits that the petitioner
has given his vakalatnama in favour of Shri M.L.
Sharma advocate in January 2013 and April 2013 but
police imposed Advocate V.K. Anand as his advocate
and compelled to give his confession statement under
Section 313 Cr.P.C.
16. Shri M.L. Sharma further submitted that accused
Mukesh was tortured by police with regard to which he
also filed an affidavit in March 2013 before the
trial court and this affidavit was not considered by
this Court. It is submitted that statement under
Section 313 Cr. P.C. of the petitioner was got
recorded under torture of police.
17. One of the submissions of Shri Sharma was that
accused Mukesh did not know driving of a bus and had
driving licence which was only for LMV(Motorcycle).
14
18. It is further submitted by Shri Sharma that this
Court has not considered the remand application filed
by the IO Exh. PW.80/D2, which clearly proves that no
disclosure existed till 22.12.2012.
19. One of the submissions which has been raised by
Shri Sharma is that this Court had not adverted to
the call details as per which accused Mukesh could
not have been in the bus on 16.12.2012, since at that
time a call was received by him from Ram Singh at
8.55 p.m.
20. Shri Sharma has attacked the second dying
declaration recorded by the SDM, Usha Chaturvedi and
submitted that in the police diary there is no
mention of dying declaration recorded by the SDM,
Usha Chaturvedi.
21. Shri Sharma has again attacked the evidence of
PW.1 and tried to point out certain contradictions
and errors.
15
22. Learned counsel submitted that as application for
additional evidences under Section 391 Cr.P.C.
remained pending before the Appellate Court and no
orders were passed therein.
23. Shri Sidharth Luthra, learned senior counsel
replying the aforesaid submissions contends that
police on information received from one Ram Singh has
reached to Karoli district, Rajasthan and reached at
the house of Mukesh at 10.45 a.m. and apprehended the
petitioner who was brought to Delhi and first taken
to Vasant Vihar Police Station and after coming to
know that IO was at Safdarjung Hospital, accused was
taken to the said hospital where he was formally
arrested at 6.30 p.m. on 18.12.2012.
24. Shri Luthra, learned senior counsel for the
respondent has taken us to the proceedings of trial
court and the orders passed by trial court in support
of his submission that it was on the statement of
Mukesh accused before the Court where he expressed a
desire to discharge Shri M.L. Sharma the Court passed
16
an order on 24.01.2013 discharging Shri Sharma on the
request of accused and thereafter V.K. Anand was
permitted to be engaged by the petitioner.
25. Opposing the submission regarding coercion and
torture, Shri Sidharth Luthara submitted that Mukesh
was in judicial custody and from judicial custody he
used to go to Court to attend the trial. On several
occasions, the Court interacted with the accused and
in none of the occasion, accused at any point of time
complained of any torture by police or jail
authorities. Shri Luthra further submitted that Court
had directed for medical checkups of Mukesh and also
sought a report of Mukesh. The torture by police was
never alleged or proved by the accused.
26. Learned Counsel for the respondent submits that
the issue regarding not having driving licence for
Bus was not raised during the trial or during the
cross-examination of the witnesses, hence, at this
stage, it cannot be allowed to be raised.
17
27. Shri Sidharth Luthra replying the submission
regarding remand application dated 22.12.2012
submitted that after the arrest of accused on
18.12.2012, the accused was produced before the
Magistrate on 19.12.2012 and after TIP was conducted
on 20.12.2012 he was remanded in the police custody
for three days on 22.12.2012, hence the remand
application was given on 22.12.2012.
28. Shri Luthra replying the submission based on
call details of Mukesh it is submitted that this
Court in its judgment dated 05.05.2017 has
elaborately considered all the evidences and held
that Mukesh was in the bus, which was boarded by the
prosecutrix and PW.1 at about 9.00 p.m. and it was
proved that Mukesh was driving the bus. We have
considered the submissions of both the parties and
have perused the records.
29. Coming to the submission of arrest at Karoli, the
High Court has dealt this submission in paras 288 to
294. The High Court has noticed in para 290 that
petitioner in his statement under Section 313 Cr.P.C.
18
in an answer of question No.132 claimed that he was
not apprehended at his village Karoli, Rajasthan but
was apprehended at Ravidass Camp in Delhi. High Court
noticing the judgment of the Privy Council in the
Prabhu v. Emperor, AIR 1944 PC 73 had observed that
conviction shall not be affected by any irregularity
in his arrest. Police have shown a formal arrest on
18.12.2012 and this Court vide its judgment dated
05.05.2017 has also noticed the fact that accused was
formally arrested at Safdarjung Hospital on
18.12.2012 at 6.30 p.m. at Safdarjung Hospital, in
the evening. This submission does not make out any
ground to hold that conviction and trial of the
accused is vitiated in any manner so as to call for
review of the judgment dated 05.05.2017. There is no
apparent error in the Judgment dated 05.05.2017.
30. Coming to the submission that Shri V.K. Anand,
Advocate was forced on petitioner it is sufficient to
note the order sheet of trial court which noticed all
facts. In proceeding dated 24.01.2013 the Trial Court
has recorded:
19
“... Lastly, I have called accused Mukesh
from JC, in my chamber and asked him about
his counsel. He replied that earlier he had
appointed Shri Manohar Lal Sharma, Advocate
vide vakalatnamas dated 08.01.2013 and
09.01.2013 but now would like to change his
counsel and has appointed Mr. V.K.Anand,
Advocate, as his counsel before this court
from today. Vakalatnama is filed. Shri
Manohar Lal Sharma, Advocate, is thus
discharged.
Accused Mukesh even informed that he do
not intend to avail the services of Shri N.
Rajaraman, Advocate-on-record, in the
Transfer Petition pending before the
Hon’ble Supreme Court of India and that he
had requested Shri V.K.Anand, Advocate, to
be his counsel, even in the Hon’ble Supreme
Court of India and to engage some other
Advocate-on-Record.
Again when the accused made his request to avail
the services of M.L. Sharma, said fact was recorded
on 20.03.2013 proceeding and Shri Sharma started
representing accused Mukesh. Subsequent order-sheet
also indicates that Shri Sharma did not appear on
several occasions, more than half a dozen of the
dates, which were fixed for cross-examination on
behalf of the accused then the Court was left with no
option but to appoint a amicus curiae. The submission
of Shri Sharma that Advocate V.K. Anand was forced on
20
the accused against his will is wholly untenable and
does not furnish any ground to review the judgment.
31. With regard to submission regarding torture by
police, it is sufficient to note that the trial court
interacted with the accused on many occasions and on
none of the occasions any complaint was made by
accused. The accused was in judicial custody. The
trial court in its proceeding dated 24.01.2013
recorded following:
“....I have also enquired from accused
Mukesh if he has any complaint with regard
to the manner in which he has been treated
in custody but he replied that he has no
complaint in this regard.”
The submission of Shri Sharma that statement of
accused recorded under Section 313 Cr.P.C. was under
pressure and influence of amicus curiae has no legs
to stand. The above argument is stated to be rejected
since the statement was recorded by the Court and the
accused was coming from judicial custody and could
not be tortured by the police as alleged. On the
affidavit filed in March 2013, the trial court had
21
promptly called for a report and matter was not
further pursued by the trial court since no material
came to substantiate the plea.
32. This Court in its judgment dated 05.05.2017 has
held after marshalling evidence of PW.1 and other
evidences including scientific evidences that Mukesh
was driving the bus. The issue whether he had a
driving licence for driving the bus or not has no
relevance with regard to conviction recorded against
the accused which has been affirmed by the High court
and this Court as well.
33. This Court in its judgment has referred to
recoveries made from the petitioner in para No. 127.
Remand application was given by police after
conclusion of T.I.P. Recoveries made from petitioner
has been discussed and believed, we cannot permit the
petitioner to argue the said issues again.
34. Learned counsel for accused No.2-Mukesh contended
that accused No.2-Mukesh does not know driving as
22
evidenced from his driving licence which shows that
the licence was only for Light Motor Vehicle (LMV)
and that he does not know how to drive a bus. Further
contention of accused No.2-Mukesh is that as per the
Call Details Record (CDR), he could not have been
present in the bus on 16.12.2012 at 08.55 p.m.
35. The argument that accused No.2-Mukesh does not
know driving has not been raised during the trial or
in evidence and also cross-examination of witnesses
by the accused. Upon consideration of the evidence of
PW-1 and other evidences including scientific
evidence, this Court has arrived at the conclusion
that accused no.2-Mukesh was driving the bus. Issue
whether accused No.2-Mukesh has a driving licence for
driving the bus or not has no relevance with regard
to conviction recorded against the accused which has
been affirmed by the High Court and this Court as
well.
36. There is no merit in the contention that accused
No.2-Mukesh could not have driven the bus and that he
23
was not present in the bus at the time of the
incident. It is to be noted that in the questioning
under Section 313 Crl.P.C., accused No.2-Mukesh has
clearly admitted that he was driving the bus and this
has been elaborately referred to in para (302) of the
Judgment as under:-
"302. In his questioning under Section 313
Cr.PC, Mukesh, A-2, has admitted that he
and A-1, Ram Singh (since deceased), are
brothers. He has also admitted that on the
night of 16-12-2012, he was driving the bus
and that accused Pawan and Vinay Sharma
were seated on the backside of the driver’s
seat, whereas Akshay and Ram Singh were
sitting in the driver’s cabin. The relevant
portion of his statement under Section 313
Cr.PC reads as under:
“Q.2. It is in evidence against you
that PW 1 further deposed that they
inquired from 4-5 autorickshaw-walas to
take them to Dwarka, but they all
refused. At about 9 p.m. they reached at
Munirka Bus-stand and found a whitecoloured
bus on which “Yadav” was
written. A boy in the bus was calling
for commuters for Dwarka/Palam Mod. PW 1
noticed yellow and green lines/stripes
on the bus and that the entry gate of
the bus was ahead of its front tyre, as
in luxury buses and that the front tyre
was not having a wheel cover. What do
you have to say?
Ans.: I was driving the bus while my
brother Ram Singh, since deceased and
JCL, Raju was calling for passengers by
saying “Palam/Dwarka Mod”.
24
Q.4.: It is in evidence against you that
during the course of his deposition,
complainant, PW 1 has identified you
accused Mukesh to be the person who was
sitting on the driver’s seat and was
driving the bus; PW 1 further identified
your co-accused Ram Singh (since
deceased), and Akshay Kumar to be the
person who were sitting in the driver’s
cabin along with the driver; PW 1 had
also identified your co-accused Pawan
Kumar who was sitting in front of him in
two seats row of the bus; PW 1 had also
identified your co-accused Vinay Sharma
to be the person who was sitting in
three seats row just behind the driver’s
cabin, when PW 1 entered the bus; PW 1
has also deposed before the court that
the conductor who was calling him and
his friend/prosecutrix to board the bus,
Ext. P-1 was not among the accused
person being tried in this court.
Ans.: Accused Pawan and accused Vinay
Sharma were sitting on my backside of
the driver’s seat and whereas accused
Akshay was sitting in the driver’s cabin
while my brother Ram Singh, since
deceased was asking for passengers.
Q.5.: It is in evidence against you that
after entering the bus PW 1 noticed that
seats cover of the bus were of red
colour and it had yellow-coloured
curtains and the windows of the bus had
black film on it. The windows were at
quite a height as in luxury buses. As PW
1 sat down inside the bus, he noticed
that two of you accused were sitting in
the driver’s cabin were coming and
returning to the driver’s cabin. PW 1
paid an amount of Rs 20 as bus fare to
the conductor i.e. Rs 10 per head. What
do you have to say?
25
Ans.: It is correct that the windows of
the bus, Ext. P-1 were having black film
on it but I cannot say if the seats of
the bus were having red covers or that
the curtains were of yellow colour as my
brother Ram Singh, since deceased, only
used to drive the bus daily and that on
that day since he was drunk heavily so I
had gone to Munirka to bring him to my
house and hence, I was driving the bus
on that day. I had gone to Munirka with
my nephew on my cycle to fetch Ram
Singh, since deceased, and that the
other boys along with Ram Singh had
already taken the bus from R.K. Puram. I
was called by Ram Singh on phone to come
at Munirka.”
37. The contention raised by Mr. Sharma is that
accused No.2-Mukesh was not present in the bus has
been considered in the judgment of this Court in more
than one place. Presence of accused No.2-Mukesh in
the bus has also been considered while considering
the presence of witness PW-82, Shri Ram Adhar in the
bus in para (298). As pointed out above, in his
questioning under Section 313 Crl.P.C., accused No.2-
Mukesh has admitted that he and accused No.1-Ram
Singh (since deceased) are brothers and on the night
of 16.12.2012, he (accused No.2-Mukesh) was driving
the bus and that accused-Pawan and accused-Vinay
Sharma were seated on the back side of the driver
26
seat whereas accused-Akshay was sitting in the
Driver's cabin. Accused-Ram Singh and JCL, Raju were
calling for passengers by saying "Palam/Dwarka Mod".
When there is such clear admission in the questioning
under Section 313 Cr.P.C, now the Petitioner-accused
No.2-Mukesh cannot raise the plea denying his
presence in the bus.
38. Another contention raised by accused No.2-Mukesh
is that he could not have been present in the bus on
16.12.2012 at 08.55 p.m. as seen from Call Details
Record (CDR) and that his phone number was giving the
location of Lajpat Nagar. This issue has been
elaborately argued and dealt with as overlapping of
signals in close proximity is common.
39. This Court had elaborately considered all the
three dying declarations. All the three dying
declarations having been relied by trial court, High
Court and this Court and all arguments attacking the
dying declarations having been considered and
rejected, in its judgment dated 05.05.2017, we are of
the view that the petitioner cannot be allowed to re-
27
agitate the same issues which were already considered
and expressly rejected by this Court.
40. The victim made three dying declarations:- (i)
statement recorded by PW-49 Dr. Rashmi Ahuja
immediately after the victim was admitted to the
hospital; (ii) Dying declaration (Ex.PW-27/A)
recorded by PW-27 SDM Usha Chaturvedi on 21.12.2012;
and (iii) dying declaration(Ex.PW-30/D) recorded by
PW-30 Pawan Kumar, Metropolitan Magistrate on
25.12.2012 at 1:00 p.m. by multiple choice questions
and recording answers by gestures and writing. In the
first dying declaration (Ex.PW-49/A), the prosecutrix
has stated that more than two men committed rape on
her, bit her on lips, cheeks and breast and also
subjected her to unnatural sex. In the second dying
declaration (Ex.PW-27/A) recorded by PW-27, the
victim has narrated the entire incident in great
detail, specifying the role of each accused, rape
committed by number of persons, insertion of iron rod
in her private parts, description of the bus, robbery
committed and throwing of both the victims out of the
28
moving bus in naked condition. On 25.12.2012 at 1:00
p.m., PW-30 Pawan Kumar, Metropolitan Magistrate
recorded the statement by putting multiple choice
questions to the victim and by getting answers
through gestures and writing. While making the
third declaration, the victim also tried to reveal
the names of the accused by writing in her own
handwriting viz. “Ram Singh, Mukesh, Vinay, Akshay,
Vipin, Raju”.
41. All the contentions raised regarding the three
dying declarations have been considered in detail in
paras (148) to (192) and paras (395) to (417).
Considering all the three dying declarations, in the
light of well-settled principles, this Court held
that all the three dying declarations are true,
voluntary and consistent. Insofar as third dying
declaration, this Court, in paras (408) to (412) held
that the dying declaration made through signs,
gestures or by nods are admissible as evidence and
that proper care was taken by PW-30 Pawan Kumar,
Metropolitan Magistrate and the third dying
29
declaration recorded by in response to the multiplechoice
questions by signs, gestures made by the
victim are admissible as evidence. In the third
dying declaration, the victim also wrote the names of
the accused persons “Ram Singh, Mukesh, Vinay,
Akshay, Vipin, Raju”. So far as the name of accused
Vipin written by the prosecutrix in the third dying
declaration has been elaborately considered by this
Court in paras (150) and (188) of the judgment.
42. This Court has examined the evidence of PW.1
extensively and have given ample reason for accepting
the said evidence as reliable. The petitioner cannot
be allowed to re-agitate the matter.
43. Yet another contention raised by Mr. Sharma is
that there were two different recoveries from accused
No.2-Mukesh during his detention only to falsely
implicate him and this has not been considered by
this Court. It is the further contention that the
remand report filed by the I.O. (Ext. PW-80/D2) was
not considered which implied that there was no
30
disclosure existed till 22.12.2012 and the
disclosures and recoveries shown are highly doubtful.
The arrest and recovery of accused No.2-Mukesh have
been referred to in paras (116), (117) and in the
tabular column in para (128) and the details of
arrest of all the accused and recovery of the
articles recovered from each of them are also further
referred to in detail in para (441). In the light of
various decisions, the scope of recoveries was
considered in paras (129) to (137) and paras (442) to
(452) and the arguments raised on behalf of accused
No.2-Mukesh were held to be untenable. The arguments
now advanced raising doubts about the arrest and
recovery of articles, in our considered view, make no
ground for reviewing the judgment.
44. Learned Counsel for accused No.2-Mukesh contended
that the illegal detention of Mukesh in
Karoli/Rajasthan on 17.12.2012 and failure to present
him before the nearest Magistrate was not considered
by this Court. As pointed out earlier, the details of
arrest of accused No.2-Mukesh have been referred to
in detail in para (116) of the judgment and the
31
various recoveries are referred to in paras (116),
(117), (127), (440) and (441) of the judgment.
Identification of Samsung Galaxy phone (recovered
from accused Mukesh) by PW-1 in the TIP proceedings
held on 20.12.2012 corroborates recovery of articles
from accused No.2-Mukesh (vide para (441)). Further,
the DNA profile generated from blood strained pants,
T-shirts and jackets recovered from accused No.2-
Mukesh matching with the DNA profile of the victim
corroborates the recoveries made from accused No.2-
Mukesh vide paras (231) and (454).
45. When the appeal was decided, all applications if
any pending shall stand closed and we do not find any
ground to review the judgment on this count,
especially when parties lead all the evidences which
were in their power.
46. We may observe that submissions which have been
raised by Shri Sharma before us in this review
petition are more or less the submissions which were
32
advanced at the time of hearing of the appeal and
this Court had already considered the relevant
submissions and dealt them in its judgment dated
05.05.2017. This court had cautiously gone into and
revisited the entire evidences on record and after
being fully satisfied had dismissed the appeal. By
the review petition the petitioner cannot be allowed
to re-argue the appeal on merits of the case by
pointing out certain evidences and materials which
were on the record and were already looked into by
the trial court, High court and this Court as well.
47. In review petition, the petitioner had tried to
raise the plea that he was not in the bus and he has
nothing to do with the incident. The factum of he
being involved in the offence having been gone into
by all courts and after marshalling the evidences, he
having been convicted and sentenced, it is not open
for the petitioner in the review petition to contend
that he had nothing to do with the incident.
33
48. We after having heard learned counsel for the
petitioner and learned senior counsel for the
respondent and having gone through the grounds taken
in the review petition, find that review petition
does not disclose any ground, on which review
jurisdiction can be exercised by this Court under
Article 137 read with Order XLVII Rule 1 of the
Supreme court Rules, 2013. Consequently, the review
petition is rejected.
.....................CJI.
( DIPAK MISRA )
.....................J.
( R.BANUMATHI )
.....................J.
( ASHOK BHUSHAN )
NEW DELHI,
JULY 09, 2018.
No comments:
Post a Comment