REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 607-608 OF 2017
(arising out of S.L.P. (Criminal) Nos. 3119-3120 of 2014)

Mukesh Anr. …Appellants

Versus

State for NCT of Delhi Ors. …Respondents
WITH

CRIMINAL APPEAL NOS. 609-610 OF 2017
(arising out of S.L.P. (Criminal) Nos. 5027-5028 of 2014)

J U D G M E N T

Dipak Misra, J. [for himself and Ashok Bhushan, J.]

The cold evening of Delhi on 16th December, 2012 could not have even
remotely planted the feeling in the twenty-three year old lady, a para-
medical student, who had gone with her friend to watch a film at PVR Select
City Walk Mall, Saket, that in the next few hours, the shattering cold
night that was gradually stepping in would bring with it the devastating
hour of darkness when she, alongwith her friend, would get into a bus at
Munirka bus stand to be dropped at a particular place; and possibly could
not have imagined that she would be a prey to the savage lust of a gang of
six, face brutal assault and become a playful thing that could be tossed
around at their wild whim and her private parts would be ruptured to give
vent to their pervert sexual appetite, unthinkable and sadistic pleasure.
What the victims had not conceived of, it all happened, as the chronology
of events would unroll. The attitude, perception, the beastial proclivity,
inconceivable self-obsession and individual centralism of the six made the
young lady to suffer immense trauma and, in the ultimate eventuate, the
life-spark that moves the bodily frame got extinguished in spite of
availing of all the possible treatment that the medical world could
provide. The death took place at a hospital in Singapore where she had
been taken to with the hope that her life could be saved.

2. The friend of the girl survived in spite of being thrown outside the
bus along with the girl and the attempt of the accused-appellants to run
over them became futile as they, by their slight movement, could escape
from being crushed under the bus, and the appellants left them thinking
that they were no more alive. Lying naked, as the clothes were removed from
their bodies, they shouted for help and as good fortune would have it, the
night patrolling vehicle, a motor cycle, arrived and the said man, Raj
Kumar, PW-72, gave the shirt to the boy and contacted the control room from
which a Bolero patrol van came and they brought a bed sheet and tore it
into two parts and gave a piece to each of the victims so that they could
cover themselves and feel civil. The PCR van took the victims to the
Safdarjung Hospital where treatment commenced.

3. The present case is one where there can be no denial that the
narrative is long, the investigation has been cautious and to bring home
the charge, modern and progressive scientific methods have been adopted.
Mr. Siddharth Luthra, learned senior counsel for the respondent-State, has
made indefatigable endeavour to project that the investigation is flawless
and exemplary; and Mr. M.L. Sharma and Mr. A.P. Singh, learned counsel for
the appellants, have severely criticized it as faulty on many a score and
that it is completely biased; and Mr. Sanjay R. Hegde, learned senior
counsel, the friend of the Court, in his own way, has highlighted that the
investigation is not only flawed but also unreliable which deserves
chastisement and warrants rejection. Many facets of the investigation that
pertain to recording of dying declaration, recording of statements of
witnesses under Section 161 of the Code of Criminal Procedure (CrPC), the
medical examination, holding of the test identification parade, the manner
and method of search and seizure and the procedure of arrest have been
seriously commented upon. That apart, criticism is advanced from many a
spectrum to strengthen the stance that it does not meet the standard and
test determined by law. Needless to say, the factual score and the
investigation have to withstand the test of reliability and acceptability.
The appreciation of evidence brought on record requires to be appositely
scrutinized to adjudge the fact whether the appellants are guilty of their
culpability or there has been public pressure, as alleged, to falsely
implicate the appellants or to treat them as guinea pigs to save others and
accept the hypothesis that the prosecution has booked them at the instance
of some political executives or to save a situation which a disturbed
society perceives as a collective catastrophe on the paradigm of social
stability and to sustain its faith in the investigation to keep the precept
of rule of law alive. In essence, the submission is that the whole
exercise, namely, investigation and trial, has been carried out with the
sole purpose for the survival of the prosecuting agency. We have stated in
the beginning that Mr. Sharma and Mr. Singh appearing for the appellants
commenced their submission with all the vehemence and sensitivity at their
command to strike at the root of the prosecution branding it as suspicious,
absolutely unreliable, apathetic to the concept of individual dignity and
engaged in maladroit effort to book the vulnerable and the innocent so as
to disguise and cover their inefficiency to catch the real culprits. In
the course of our deliberation, we shall dwell upon the same and keenly
scrutinize the justifiability of the aforesaid criticism.

The Prosecution Narrative

4. Presently, we shall advert to the exposition of facts. The
prosecution case, as projected, is that on 16.12.2012, the deceased,
‘Nirbhaya’ (not her real name), had gone with her friend, the informant, PW-
1, to the PVR situated in Select City Walk Mall, Saket to watch a movie.
After the show was over, about 8:30 p.m., they took an auto and reached
Munirka bus stand wherefrom they boarded a white coloured chartered bus [DL-
1P-C-0149, Ext.P1] which was bound to Dwarka/Palam Road, as a boy in the
bus was calling for commuters for the said destination. As per the version
of the informant, PW-1, the friend of the prosecutrix, the bus had yellow
and green lines/stripes and the word “Yadav” was written on it. After both
of them had entered the bus, they noticed that six persons were already
inside the bus, four in the cabin of the driver and two behind the driver’s
cabin. The deceased and the informant sat on the left side in the row of
two-seaters and paid the fare of twenty rupees as demanded. Before they
could get the feeling of a safe journey (though not a time-consuming
journey), a feeling of lonely suffocation and a sense of danger barged in,
for the accused persons did not allow anyone else to board and the bus
moved and the lights inside the bus were put off. With the lights being put
off, the darkness and the fear of the unexpected darkness ruled. A few
minutes later, three persons (who have been identified as accused Ram
Singh, Akshay and a young boy, who has been treated as a juvenile in
conflict with law) came out of the driver’s cabin and started to abuse PW-

1. The young companion of the deceased raised opposition to the abuse that
led to an altercation which invited the other two who were sitting outside
the driver’s cabin to join. The spirit to oppose and the duty to save the
prosecutrix had to die down and perilously succumb to the assault by the
accused persons with the iron rods that caused injuries to his head, both
the legs and other parts of the body and the consequence was that he fell
on the floor of the bus to hear the painful cries of the lady who, he knew,
was being treated as an object, an article for experimentation and prey to
the pervert proclivity of the six but could do nothing except to hear
unbearable cries made in agony and pain. His spirit was dead, and bound to.

5. As the prosecution story further unfurls, the two accused persons,
namely, Pawan and Vinay, pinned the young man down and robbed the victims
of their mobiles besides robbing the informant of his purse carrying a Citi
Bank credit card, ICICI Bank Debit Card, his identity card issued by his
employer-company, metro card, a sum of rupees one thousand, his Titan
Watch, a golden ring studded with jewels and a silver ring studded with
pearl, black colour Hush Puppies shoes, black colour Numero Uno jeans, a
grey colour pullover and a brown colour blazer. As per the version of the
prosecution, PW-1 was carrying two mobiles and the prosecutrix was carrying
only one, and the accused snatched away all the three mobiles.

6. The overpowering was not meant to satisfy the avarice. As the
accusations proceed, after the informant was overpowered, as it could only
have a singular result, the accused persons, namely, Ram Singh, Akshay and
the Juvenile in Conflict with Law (JCL) took the prosecutrix to the rear
side of the bus and she was raped by them, one after the other.

7. After committing rape, the accused Ram Singh (since deceased),
accused Akshay and the JCL came towards the informant, PW-1, and nailed him
down; then the accused Vinay and accused Pawan went to the rear side of the
bus and committed rape on the prosecutrix, one by one. PW-1 noticed that
earlier the bus was moving at fast speed but after sometime, he felt that
the speed of the bus was reduced and he saw that the accused Mukesh, who
was driving the bus, came near him and hit him with the rod and he also
went to the rear side of the bus and raped the prosecutrix. The
prosecutrix was brutally gang raped by the accused one after the other and
she was also subjected to unnatural sex. Her private parts and her
internal organs were seriously injured by inserting iron rod and hand in
the rectal and vaginal region. As per PW-1, he had heard the cries of the
prosecutrix like “chod do, bachao”. PW-1 could hear the prosecutrix
shouting in a loud oscillating voice. The prosecutrix was carrying a grey
colour purse having an Axis Bank ATM card and other belongings. The accused
persons robbed her of her belongings and stripped her. They also took away
the clothes of the informant while beating him with iron rods. The accused
were exhorting that both the victims be not left alive. The accused then
tried to throw both the informant and the prosecutrix out of the moving bus
from its rear door but could not open it and so, they brought them to the
front door and threw them out of the moving bus at National Highway No. 8,
Hotel Delhi 37, Mahipalpur flyover by the side of the road.

8. As indicated earlier, the prosecutrix and PW-1 were noticed by PW-72,
Raj Kumar, who heard the voice of ‘bachao, bachao’ from the left side of
the road near a milestone opposite to Hotel Delhi 37. PW-72 saw PW-1 and
the prosecutrix sitting naked having blood all around. Immediately
thereafter, PW-72, Raj Kumar, informed PW-70, Ram Pal, who was in the
Control Room, requesting him to call PCR. PW-70, Ram Pal, of EGIS Infra
Management India (P) Limited, dialed 100 No. and even asked his other
patrolling staff to reach the spot.

9. About 10:24 p.m., PW-73, H.C. Ram Chander, who was in charge of PCR
van Zebra 54, received information about the incident and the lying of
victims in a naked condition near the foot of Mahipalpur fly over towards
Dhaula Kuan opposite GMR Gate. PW-73 reached the spot and found the
victims. He got the crowd dispersed and brought a bottle of water and a
bedsheet from the nearby hotel and tore the same into two parts and gave it
to both the victims to cover themselves.

Travel to the Safdarjung Hospital

10. About 11:00 p.m., PW-73 took the victims to Safdarjung Hospital, New
Delhi. On the way to the hospital, the victims gave their names to him and
informed that they had boarded a bus from Munirka and that after some time
the occupants had started misbehaving and had beaten the boy and taken the
girl (prosecutrix) to the rear side of the bus and committed rape on her.
Thereafter, they had taken off the clothes of the victims and thrown them
naked on the road. While leaving the informant, PW-1, in the casualty
where he was examined by PW-51, Dr. Sachin Bajaj, and his MLC, Ext. PW-
51/A, was drawn up, PW-73 took the prosecutrix to the Gynae ward and got
her admitted there. The MLC of the prosecutrix,PW- 49/B, was prepared by
PW-49, Dr. Rashmi Ahuja.

11. PW-49, Dr. Rashmi Ahuja, recorded the history of the incident as told
to her by the prosecutrix and noted the same in Exhibit PW-49/A. As per
the version narrated by the prosecutrix to her, it was a case of gang rape
in a moving bus by 4-5 persons when the prosecutrix was returning after
watching a movie with the informant. She was slapped on her face, kicked
on her abdomen and bitten over lips, cheek, breast and vulval region. The
prosecutrix remembered intercourse two times and rectal penetration also.
She was also forced to have unnatural oral sex but she refused. All this
continued for half an hour and then she was thrown off from the moving bus
along with her friend.

12. The following external injuries were noted by Dr. Rashmi Ahuja in Ex.
PW-49/A:

Bruise over left eye covering whole of the eye
Injury mark (abrasion) at right angle of eye
Bruise over left nostril involving upper lip
Both lips edematous
Bleeding from upper lip present
Bite mark over right cheek
Left angle of mouth injured (small laceration)
Bite mark over left cheek
Right breast bite marks below areola present
Left breast bruise over right lower quadrant, bite mark in inferior left
quadrant

Per abdomen:

Guarding rigidity present

Local examination:

Cut mark (sharp) over right labia present
A tag of vagina (6 cm in length) hanging outside the introitus
There was profuse bleeding from vagina

Per vaginal examination:

A posterior vaginal wall tear of about 7 to 8 cm

Per rectal examination:

Rectal tear of about 4 to 5 cm., communicating with the vaginal tear.

13. As the evidence brought on record would show, 20 samples of the
prosecutrix were taken and sealed with the seal of the hospital and handed
over to PW-59, Inspector Raj Kumari.

Registration of FIR and the progress thereon

14. At this juncture, it is necessary to state that after the victims
were rescued, the informant, PW-1, Awninder Pratap, gave his first
statement to the police at 3:45 a.m. on 17.12.2012 which culminated into
the recording of the FIR at 5:40 a.m. being FIR No. 413/2012 dated
17.12.2012, PS Vasant Vihar under Section 120B IPC and Sections
365/366/376(2)(g)/377/307/302 IPC and/or Sections 396/395 IPC read with
Sections 397/201/412 IPC. It was thereafter handed over to S.I. Pratibha
Sharma, PW-80, for investigation.

15. On the same night, i.e., 16/17.12.2012, the prosecutrix underwent
first surgery around 4:00 a.m. The prosecutrix was operated by PW-50, Dr.
Raj Kumar Chejara, Safdarjung Hospital, New Delhi and his surgery team
comprised of Dr. Gaurav and Dr. Piyush. OT notes have been exhibited as
Ex.PW-50/A and Ex.PW-50/B. The second and third surgeries were performed
on 19.12.2012 and 23.12.2012 respectively.

16. During the period the prosecutrix was undergoing surgeries one after
the other, and when all were concerned about her progress of recovery, the
prosecution was carrying out its investigation in a manner that it thought
systematic. The first and foremost responsibility of the prosecution was to
find out, on the basis of the information given, about the accused persons.
That is how the prosecution story uncurtains.

17. On 17.12.2012, supplementary statements of PW-1 were recorded by PW-
80, SI Pratibha Sharma. Based on the description of the bus given by PW-1,
the offending bus bearing No. DL-1PC-0149 was found parked in Ravi Das
Jhuggi Camp, R.K. Puram, New Delhi. PW-80 along with PW-74, SI Subhash
Chand, and PW-65, Ct. Kripal Singh, went to the spot and found accused Ram
Singh sitting in the bus. On seeing the police, Ram Singh got down from
the bus and started running. The police intercepted Ram Singh and he was
arrested and interrogated.

18. Personal search was conducted on Ram Singh and his disclosure
statement, Ex. P-74/F, was recorded by PW-74 and his team. Based on his
disclosure statement, PW-74, Investigating Officer, SI Subhash Chand,
seized the bus, Ex. P1, vide Seizure Memo Ex. PW- 74/K. PW-74 seized the
seat cover of the bus of red colour and its curtains of yellow colour. On
the bus, ‘Yadav’ was found written on its body with green and yellow
stripes on it. The Investigating Officer also seized the key of the bus,
Ex. P-74/2, vide Seizure Memo Ex. PW-74/J. The documents of the bus were
also seized. The disclosure statement of Ram Singh, Ex. PW-74/F, led to
the recovery of his bloodstained clothes, iron rods and debit card of Asha
Devi, the mother of the prosecutrix. PW-74, Investigating Officer, also
recovered ashes and the partly unburnt clothes lying near the bus which was
seized vide Memo Exhibit No. PW-74/M and Unix Mobile Phone with MTNL Sim,
Ex. P-74/5, vide Memo Ex. P/74E. The Investigating Officer prepared the
site plan of the place where the bus was parked and from where the ashes
were found.

The arrest of the accused persons and seizure of articles

19. The arrest of accused, Ram Singh, also led to the arrest of two other
accused persons, namely, accused Vinay Sharma and accused Pawan @ Kaalu. On
18.12.2012, accused Mukesh was apprehended from village Karoli by PW-58, SI
Arvind Kumar, and was produced before PW-80, SI Pratibha Sharma. At the
instance of accused Mukesh Singh, a Samsung Galaxy Trend DUOS Blue Black
mobile belonging to the informant was recovered. On 23.12.2012, at his
instance, PW-80 prepared the route chart of the route where Mukesh drove
the bus at the time of the incident, Ex PW-80/H. Besides that, he got
recovered his bloodstained clothes from the garage of his brother at Anupam
Apartment, Saidulajab, Saket, New Delhi. He opted to undergo Test
Identification Parade. In the Test Identification Parade conducted by PW-
17, Sandeep Garg, Metropolitan Magistrate, PW-1, identified accused-Mukesh.

20. Accused Pawan was apprehended and arrested about 1:15 p.m. on
18.12.2012 vide memo Ex.PW-60/A; his disclosure, Ex.PW-60/G, was recorded
and his personal search was conducted vide memo Ex.PW-60/C. In his
disclosure statement, Pawan pointed out Munirka bus stand where the
prosecutrix and PW-1 boarded the bus and memo Ex.PW-68/I was prepared. He
also pointed at the spot where PW-1 and the prosecutrix were thrown out of
the bus and memo Ex.PW-68/J was prepared in this regard.

21. Accused Vinay Sharma got recovered his bloodstained clothes, PW-1’s
Hush Puppies leather shoes and the prosecutrix’s mobile phone, Nokia Model
3110 of black grey colour. Further recoveries were made pursuant to his
supplementary disclosure. Similarly, accused Pawan Kumar got recovered from
his jhuggi his bloodstained clothes, shoes and also a wrist watch make
Sonata and Rs. 1000/- robbed from PW-1.

22. On 21.12.2012, accused Akshay was also arrested from Village
Karmalahang, PS Tandwa, Aurangabad, Bihar. His disclosure statement was
recorded. He led to his brother’s house in village Naharpur, Gurgaon,
Haryana and got recovered his bloodstained clothes. A ring belonging to PW-
1, two metro cards and a Nokia phone with SIM of Vodafone Company was also
recovered from Akshay. Akshay also opted to undergo TIP and was positively
identified by PW-1. The mobile phones of the accused persons were seized
and call details records with requisite certificates under Section 65-B of
Indian Evidence Act were obtained by the police.

23. After getting arrested, all the accused were medically examined. The
MLCs of all the accused persons show various injuries on their person;
viz., in the MLC, Ex.PW-2/A, of accused Ram Singh, PW-2, Dr. Akhilesh Raj,
has opined that the injuries mentioned at point Q to P-1 could possibly be
struggle marks. Similar opinions were received in respect of other accused
persons. PW-7, Dr. Shashank Pooniya, has opined that the injuries present
on the body of accused Akshay were a week old and were suggestive of
struggle as per MLC, Ex.PW-7/A. MLC, Ex.PW-7/B, pertaining to accused Pawan
shows that he had suffered injuries on his body which were simple in
nature. The MLC, Ex.PW-7/C, of accused Vinay Sharma proved that he too
suffered injuries, simple in nature, 2 to 3 days old, though injury No. 8
was claimed to be self inflicted by the accused himself.

Further treatment of the victim and filing of chargesheet

24. While the arrest took place, as indicated earlier, the victim
underwent second and third surgeries on 19.12.2012 and 23.12.2012
respectively. The second surgery was performed on the prosecutrix on
19.12.2012 by PW-50, Dr. Raj Kumar Chejara, along with his operating
team consisting of Prof. Sunil Kumar, Dr. Pintu and Dr.
Siddharth. Dr. Aruna Batra and Dr. Rekha Bharti were present along with the
anaesthetic team. The clinical notes, Ex.PW-50/C, and notes prepared by the
Gynaecology team, Ex.PW-50/D, can be referred to in this regard. The
prosecutrix was re-operated on 23.12.2012 for peritoneal lavage and
placement of drain under general anaesthesia and the notes are exhibited as
Ex.PW-50/E.

25. As the condition of the prosecutrix did not improve much, the
prosecution thought it appropriate to record the statements of the
prosecutrix. The said statements have been conferred the status of dying
declaration. As is noticeable from the evidence, PW-49 also deposed that
certain exhibits were collected for examination such as outer clothes,
i.e., sweater, sheet covering the patient; inner clothes, i.e., Sameej
torned; dust; grass present in hairs, dust in clothes; debris from in
between fingers; debris from nails; nail clippings; nail scrapings; breast
swab; body fluid collection (swab from saliva); combing of pubic hair;
matted pubic hair, clipping of pubic hair; cervical mucus collection;
vaginal secretions; vaginal culture; washing from vaginal; rectal swab;
oral swab; urine and oxalate blood vial; blood samples, etc.

26. On 21.12.2012, on being declared fit, the second dying declaration
was recorded by PW-27, Smt. Usha Chaturvedi, Sub-Divisional Magistrate.
This dying declaration is an elaborate one where the prosecutrix has
described the incident in detail including the insertion of rods in her
private parts. She also stated that the accused were addressing each other
with names like, “Ram Singh, Thakur, Raju, Mukesh, Pawan and Vinay”.

27. On 25th December, 2012, at 1:00 p.m., PW-30, Shri Pawan Kumar,
Metropolitan Magistrate, went to the hospital to record the dying
declaration of the prosecutrix. The attending doctors opined that the
prosecutrix was not in a position to speak but she was otherwise conscious
and responded by way of gestures. Accordingly, PW-30 put questions in such
a manner as to enable her to narrate the incident by way of gestures or
writing. Her statement, Ex.PW-30/D, was recorded by PW-30
in the form of dying declaration by putting her questions in the nature
of multiple choice questions. The prosecutrix gave her statement/dying
declaration through gestures and writings, Exhibit PW-30/D, the contents of
which will be discussed later.

28. At this juncture, the cure looked quite distant. The health
condition was examined on 26th December 2012 by a team of doctors
comprising of Dr. Sandeep Bansal, Cardiologist, Dr. Raj Kumar Chejara, Dr.
Sunil Kumar, Dr. Arun Batra and Dr. P.K. Verma and since the condition of
the prosecutrix was critical, it was decided that she be shifted abroad for
further treatment and fostering oasis of hope on 27th December, 2012, she
was shifted to Mt. Elizabeth Hospital, Singapore, for her further
treatment. The hope and expiration became a visible mirage as the
prosecutrix died on 29th December, 2012 at Mt. Elizabeth Hospital,
Singapore. Dr. Paul Chui, PW-34, Forensic Pathologist, Health Sciences
Authority, Singapore, deposed that her exact time of death was 4:45 a.m. on
29th December, 2012. The death occurred at Mt. Elizabeth Hospital and the
cause of her death was sepsis with multiple organ failure following
multiple injuries. The original post mortem report is Ex. PW-34/A and its
scanned copy is Ex.PW-34/B; the Toxicology Report dated 4th January, 2013
is Exhibit PW-34/C. In the post-mortem report, Ex.PW-34/A, besides other
serious injuries, various bite marks have been observed on her face, lips,
jaw, rear ear, on the right and left breasts, left upper arm, right lower
limb, right upper inner thigh (groin), right lower thigh, left thigh
lateral and left leg lower anterior.

29. It is apt to note here that during the course of investigation
(keeping in mind that the vehicle was identified), the investigating agency
went around to collect the electronic evidence. A CCTV footage produced by
PW-25, Rajender Singh Bisht, in a CD, Ex.PW-25/C-1 and PW-25/C-2, and the
photographs, Ex.PW-25/B-1 to Ex.PW-25/B-7, were collected from the Mall,
Select City Walk, Saket to ascertain the presence of PW-1 and the
prosecutrix at the Mall. The certificate under Section 65-B of the Indian
Evidence Act, 1872 (for short, “Evidence Act”) with respect to the said
footage is proved by PW-26, Shri Sandeep Singh, vide Ex.PW-26/A. Another
important evidence is the CCTV footage of Hotel Delhi 37 situated near the
dumping spot. The said footage showed a bus matching the description given
by the informant at 9:34 p.m. and again at 9:53 p.m. The said bus had the
word “Yadav” written on one side. Its exterior was of white colour having
yellow and green stripes and its front tyre on the left side did not have a
wheel cap. The description of the bus was affirmed by PW-1’s statement.
The CCTV footage stored in the pen drive, Ex.P-67/1, and the CD, Ex.P-67/2,
were seized by the I.O. vide seizure memo Ex.PW-67/A from PW-67, Pramod
Kumar Jha, the owner of Hotel Delhi 37. The same were identified by PW-67,
Pramod Jha, PW-74, SI Subhash, and PW-76, Gautam Roy, from CFSL during
their examination in Court. PW-78, SHO, Inspector Anil Sharma, had
testified that the said CCTV footage seized vide seizure memo Ex.PW-67/A
was sent to the CFSL through S.I. Sushil Sawaria and PW-77, the MHC(M).
Thereafter, on 01.01.2013, the report of the CFSL was received.

30. As the prosecution story would further undrape, in the course of
investigation, the test identification parade was carried out. We shall
advert to the same at a later stage.

31. We had indicated in the beginning that the investigating team had
taken aid of modern methods to strengthen its case. The process
undertaken, the method adopted and the results are severely criticized by
the learned counsel for the appellants to which we shall later on revert to
but presently to the steps taken by the investigating agency during
investigation. With the intention to cover the case from all possible
spheres and to establish the allegations with the proof of conclusivity and
not to give any chance of doubt, the prosecution thought that it was its
primary duty to ascertain the identity of the accused persons; and for the
said purpose, it carried out DNA analysis and fingerprint and bite mark
analysis.

Collection of samples and identity of accused persons

32. The blood sample of the informant was collected by Dr. Kamran Faisal,
PW-15, Safdarjung Hospital, on 25.12.2012 and was handed over to SI
Pratibha Sharma, PW-80, vide seizure memo Ex.PW-15/A by Constable Suresh
Kumar, PW-42. Similarly, as mentioned earlier, PW-49, Dr. Rashmi Ahuja, had
collected certain samples from the person of the prosecutrix which are
reflected in Ex.PW-49/A from point B to B. All the samples were collected
by Inspector Raj Kumari, PW-59, vide seizure memo Ex.PW-59/A and were
handed over to PW-80, SI Pratibha Sharma, at Safdarjung Hospital in the
morning of 17.12.2012. Also the samples of gangrenous bowels of the
prosecutrix were taken on 24.12.2012 and were handed over to SI Gajender
Singh, PW-55, who seized the same vide seizure memo Ex.PW-11/A. All the
samples were deposited with the MHC(M) and were not tampered with in any
manner. A specimen of scalp hair of the prosecutrix was also taken on
24.12.2012 by Dr. Ranju Gandhi, PW-29, and was handed over to PW- 80, SI
Pratibha Sharma, vide seizure memo Ex.PW-29/A.

33. The accused were also subjected to medical examination and samples
were taken from their person which were sent for DNA analysis.

34. DNA analysis was done at the behest of PW-45, Dr. B.K. Mohapatra, Sr.
Scientific Officer, Biology, CFSL, CBI, and Biological Examination and DNA
profiling reports were prepared which are exhibited as Ex. PW-45/A-C. The
report, after analysing the DNA profiles generated from the known samples
of the prosecutrix, the informant, and each of the accused, concluded that:
“An analysis of the above shows that the samples were authentic and
established the identities of the persons mentioned above beyond reasonable
doubt.”

35. On 17.12.2012 and 18.12.2012, a team of experts from the CFSL went to
Thyagraj Stadium and lifted chance prints from the bus in question, Ex.P-1.
On 28.12.2012, PW-78, Inspector Anil Sharma of P.S. Vasant Vihar, the then
S.H.O. of Police Station Vasant Vihar, requested the Director, CFSL, for
taking digital palm prints and foot prints of all the accused persons vide
his letter Ex.PW-46/C. Pursuant to the said request made by PW-78,
Inspector Anil Sharma, the CFSL, on 31.12.2012, took the finger/palm prints
and foot prints of the accused persons at Tihar Jail. After comparing the
chance prints lifted from the bus with the finger prints/palm prints and
foot prints of all the accused persons, PW-46, Shri A.D. Shah, Senior
Scientific Officer (Finger Prints), CFSL, CBI submitted his report Ex.PW-
46/D. In the report, the chance prints of accused Vinay Sharma were found
to have matched with those on the bus in question.

36. Bite mark analysis was also undertaken by the investigative team to
establish the identity and involvement of the accused persons. PW-66,
Asghar Hussain, on the instructions of the I.O., S.I. Pratibha Sharma, had
taken 10 photographs of different parts of the body of the prosecutrix at
SJ Hospital on 20.12.2012 between 4:30 p.m. and 5:00 p.m. which were marked
as Ex.PW-66/B (Colly.) [10 photographs of 5” x 7” each] and Ex.PW-66/C
(Colly.) [10 photographs of 8” x 12” each]. PW-66 also proved in Court the
certificate provided by him in terms of Section 65-B of the Evidence Act in
respect of the photographs, Ex. PW-66/A. Thereafter, PW-18, SI Vishal
Choudhary, collected the photographs and the dental models from Safdarjung
Hospital on 01.01.2013 and duly deposited the same in the malkhana after
he, PW-18, had handed them over to the S.H.O. Anil Sharma, PW-78. The same
were later entrusted to S.I. Vishal Choudhary, PW-18 on 02.01.2013, which
is proved vide RC No.183/21/12 and exhibited as Ex.PW-77/V. PW-71, Dr.
Ashith B. Acharya, submitted the final report in this regard which is
exhibited as Ex. PW-71/C. In the said report, he has concluded that at
least three bite marks were caused by accused Ram Singh whereas one bite
mark has been identified to have been most likely caused by accused Akshay.

37. It is seemly to note here that on completion of the investigation,
the chargesheet came to be filed on 03.01.2013 under Section
365/376(2)(g)/377/307/395/ 397/302/396/412/201/120/34 IPC and supplementary
chargesheet was filed on 04.02.2013.

Charge and examination of witnesses, conviction and awarding of sentence by
the trial court

38. After the case was committed to the Court of Session, all the accused
were charged for the following offences:

1. u/s 120-B IPC;

2. u/s. 365 / 366 / 307 / 376 (2)(g) IPC / 377 IPC read with Section
120-B IPC;

3. u/s. 396 IPC read with Section 120-B IPC and /or;

4. u/s. 302 IPC read with Section 120-B IPC;

5. u/s. 395 IPC read with Section 397 IPC read with 120-B IPC;

6. u/s. 201 IPC read with Section 120-B IPC and;

7. u/s. 412 IPC.

During the course of trial, accused Ram Singh committed suicide and
the proceedings qua him stood abated vide order dated 12.10.2013.

39. It is worthy to mention here that in order to bring home the charge,
the prosecution initially examined 82 witnesses and thereafter, the
statements of the accused persons were recorded and they abjured their
guilt. Accused Pawan Gupta @ Kaalu examined Lal Chand, DW-1, Heera
Lal, DW-2, Ram Charan, DW-3, Gyan Chand, DW-4, and Hari Kishan Sharma, DW-
16, in support of his plea. Accused Vinay Sharma examined Smt. Champa Devi,
DW-5, Hari Ram Sharma, DW-6, Kishore Kumar Bhat, DW-7, Sri Kant, DW-
8, Manu Sharma, DW-9, Ram Babu, DW-10, and Dinesh, DW-17, to establish his
stand. Accused Akshay Kumar Singh @ Thakur examined Chavinder, DW-
11, Sarju Singh, DW-12, Raj Mohan Singh, DW-13, Punita Devi, DW-14, and
Sarita Devi, DW-15. As the factual matrix would reveal, subsequently three
more prosecution witnesses were examined and on behalf of the defence, two
witnesses were examined.

40. Learned Sessions Judge, vide judgment dated 10.09.2013, convicted all
the accused persons, namely, Akshay Kumar Singh @ Thakur, Vinay Sharma,
Mukesh and Pawan Gupta @ Kaalu under Section 120B IPC for the offence of
criminal conspiracy; under Section 365/366 IPC read with Section 120B IPC
for abducting the victims with an intention to force the prosecutrix to
illicit intercourse; under Section 307 IPC read with Section 120B IPC for
attempting to kill PW-1, the informant; under Section 376(2)(g) IPC for
committing gang rape with the prosecutrix in pursuance of their conspiracy;
under Section 377 IPC read with Section 120B IPC for committing unnatural
offence with the prosecutrix; under Section 302 IPC read with Section 120B
IPC for committing murder of the helpless prosecutrix; under Section 395
IPC for conjointly committing dacoity in pursuance of the aforesaid
conspiracy; under Section 397 IPC read with Section 120B IPC for the use of
iron rods and for attempting to kill PW-1 at the time of committing
robbery; under Section 201 IPC read with Section 120B IPC for destroying of
evidence and under Section 412 IPC for the offence of being individually
found in possession of the stolen property which they all knew was a stolen
booty of dacoity committed by them.

41. After recording the conviction, as aforesaid, the learned trial Judge
imposed the sentence, which we reproduce:

“(a) The convicts, namely, convict Akshay Kumar Singh @ Thakur, convict
Mukesh, convict Vinay Sharma and convict Pawan Gupta @ Kaalu are sentenced
to death for offence punishable under Section 302 Indian Penal Code.
Accordingly, the convicts to be hanged by neck till they are dead. Fine of
Rs.10,000/- to each of the convict is also imposed and in default of
payment of fine such convict shall undergo simple imprisonment for a period
of one month.

(b) for the offence under Section 120-B IPC I award the punishment of
life imprisonment to each of the convict and fine of Rs.5000/- to each of
them. In default of payment of fine simple imprisonment for one month to
such convict;

(c) for the offence under Section 365 IPC I award the punishment of seven
years to each of the convict and fine of Rs.5000/- to each of them. In
default of payment of fine simple imprisonment for one month to such
convict;

(d) for the offence under Section 366 IPC I award the punishment of seven
years to each of the convict person and fine of Rs.5000/- to each of them.
In default of payment of fine simple imprisonment for one month to such
convict;

(e) for the offence under Section 376(2)(g) IPC I award the punishment of
life imprisonment to each of the convict person with fine of Rs.5000/- to
each of them. In default of payment of fine simple imprisonment for one
month to such convict;

(f) for the offence under Section 377 IPC I award the punishment of ten
years to each of the convict person and fine of Rs.5000/- to each of them.
In default of payment of fine simple imprisonment for one month to such
convict;

(g) for the offence under Section 307 IPC I award the punishment of seven
years to each of the convict person and fine of Rs.5000/- to each of them.
In default of payment of fine simple imprisonment for one month to such
convict;

(h) for the offence under Section 201 IPC I award the punishment of seven
years to each of the convict person and fine of Rs.5000/- to each of them.
In default of payment of fine simple imprisonment for one month to such
convict;

(i) for the offence under Section 395 read with Section 397 IPC I award
the punishment of ten years to each of the convict person and fine of
Rs.5000/- to each of them. In default of payment of fine simple
imprisonment for one month to such convict;

(j) for the offence under Section 412 IPC I award the punishment of ten
years to each of the convict person and fine of Rs.5000/- to each of them.
In default of payment of fine simple imprisonment for one month to such
convict;”

42. Be it noted, the learned trial Judge directed the sentences under
Sections 120B/365/366/376(2)(g)/ 377/201/395/397/412 IPC to run
concurrently and that the benefit under Section 428 CrPC would be given
wherever applicable. He further recommended that appropriate compensation
under Section 357A CrPC be awarded to the legal heirs of the prosecutrix
and, accordingly, sent a copy of the order to the Secretary, Delhi Legal
Services Authority, New Delhi, for deciding the quantum of compensation to
be awarded under the scheme referred to in sub-section (1) of Section 357A
CrPC. That apart, as death penalty was imposed, he referred the matter to
the High Court for confirmation under Section 366 CrPC.

The view of the High court

43. The High Court, vide judgment dated 13.03.2014, affirmed the
conviction and confirmed the death penalty imposed upon the accused by
expressing the opinion that under the facts and circumstances of the case,
imposition of death penalty awarded by the trial court deserved to be
confirmed in respect of all the four convicts. As the death penalty was
confirmed, the appeals preferred by the accused faced the inevitable
result, that is, dismissal.

Commencement of hearing and delineation of contentions

44. As we had stated earlier, the grievance relating to the lodging of
FIR and the manner in which it has been registered has been seriously
commented upon and criticized by the learned counsel for the appellants.
Mr. Sharma, learned counsel for the appellants – Mukesh and Pawan Kumar
Gupta, and Mr. Singh, learned counsel for the appellants – Vinay Sharma and
Akshay Kumar Singh, have stressed with all the conviction at their command
that when a matter of confirmation of death penalty is assailed before this
Court, it is the duty of this Court to see every aspect in detail and not
to treat it as an ordinary appeal.

45. As the argument commenced with the said note, we thought it
appropriate to grant liberty to the learned counsel for the appellants to
challenge the conviction and the imposition of death sentence from all
aspects and counts and to dissect the evidence and project the
irregularities in arrest and investigation. Learned counsel for the
parties argued the matter for considerable length of time and hence, we
shall deal with every aspect in detail.

Delayed registration of FIR

46. The attack commences with the registration of FIR and, therefore, we
shall delve into the same in detail. PW-57, ASI Kapil Singh, the Duty
Officer at P.S. Vasant Vihar, New Delhi, on the intervening night of
16/17.12.2012, received information about the incident. He lodged DD No.6-
A, Ex.PW-57/A, and passed on the said DD to PW-74, SI Subhash Chand, who
was on emergency duty that night at P.S. Vasant Vihar. Immediately
thereafter, PW-57, ASI Kapil Singh, received yet another information qua
admission of the prosecutrix and of the informant in Safdarjung Hospital
and he lodged DD No.7-A, Ex.PW-57/B, and also passed on the said DD to SI
Subhash Chand.

47. PW-74, SI Subhash Chand, then left for Safdarjung Hospital where he
met PW-59, Inspector Raj Kumari, and PW-62, SI Mahesh Bhargava. PW-59,
Inspector Raj Kumari, handed over to him the MLC and the exhibits
concerning the prosecutrix as given to her by the treating doctor and PW-
62, SI Mahesh Bhargava, handed over to him the MLC of the informant. PW-74,
SI Subhash Chand, then recorded the statement, Ex.PW-1/A, of the informant
at 1:30 a.m. on 17.12.2012 and made his endorsement, Ex.PW-74/A, on it and
he gave the rukka to PW-65, Ct. Kripal Singh, for being taken to P.S.
Vasant Vihar, New Delhi and to get the FIR registered. PW-65, Ct. Kripal
Singh, then went to P.S. Vasant Vihar, New Delhi and at 5:40 a.m. and gave
the rukka to PW-57, ASI Kapil Singh, the Duty Officer, who, in turn,
recorded the FIR, Ex.PW-57/D, made endorsement, Ex.PW-57/E, on the rukka
and returned it to PW-65, Ct. Kripal Singh, who then handed it to
PW-80, SI Pratibha Sharma, at P.S. Vasant Vihar to whom the investigation
was entrusted.

48. SI Subhash Chand, PW-74, deposed that the statement of the informant
might have been recorded around 3:45 a.m. although PW-1 deposed that his
statement was recorded at 5:30 a.m. It was submitted that the original
statement was recorded by HC Ram Chander, PW-73, and the investigation
process had already begun around 1:15 a.m. and the subsequent information
from the informant which is stated to be the first information was, in
fact, crafted after the investigating agency decided on a course of action.
It is submitted by the learned counsel for the appellants that the delay
in the FIR raises serious doubts.

49. Delay in setting the law into motion by lodging of complaint in court
or FIR at police station is normally viewed by courts with suspicion
because there is possibility of concoction of evidence against an accused.
Therefore, it becomes necessary for the prosecution to satisfactorily
explain the delay. Whether the delay is so long as to throw a cloud of
suspicion on the case of the prosecution would depend upon a variety of
factors. Even a long delay can be condoned if the informant has no motive
for implicating the accused.

50. In the present case, after the occurrence, the prosecutrix and PW-1
were admitted to the hospital at 11:05 p.m.; the victim was admitted in the
Gynaecology Ward and PW-1, the informant, in the casualty ward. PW-74, SI
Subhash Chand, recorded the statement of PW-1 at 3:45 a.m. After PW-1 and
the prosecutrix were taken to the hospital for treatment, the statement of
PW-1 was recorded by PW-74, SI Subhash Chand, at 1:37 a.m. and the same was
handed over to PW- 65, Constable Kripal Singh, to PW-57, Kapil Singh. In
the initial stages, the intention of all concerned must have been to save
the victim by giving her proper medical treatment. Even assuming for the
sake of argument that there is delay, the same is in consonance with
natural human conduct.

51. In this case, there is no delay in the registration of FIR. The
sequence of events are natural and in the present case, after the
occurrence, the victim and PW-1 were thrown out of the bus at Mahipalpur in
semi-naked condition and were rescued by PW-72, Raj Kumar, and PW-70, Ram
Pal, both EGIS Infra Management India (P) Limited employees. The victim was
seriously injured and was in a critical condition and it has to be treated
as a natural conduct that giving medical treatment to her was of prime
importance. The admission of PW-1 and the victim in the hospital and the
completion of procedure must have taken some time. PW-1 himself was
injured and was admitted to the hospital at 11:05 p.m. No delay can be said
to have been caused in examining PW-1, the informant.

52. In the context of belated FIR, we may usefully refer to certain
authorities in the field. In Ram Jag and others v. State of U.P.[1] , it
was held as that witnesses cannot be called upon to explain every hour’s
delay and a commonsense view has to be taken in ascertaining whether the
first information report was lodged after an undue delay so as to afford
enough scope for manipulating evidence. Whether the delay is so long as to
throw a cloud of suspicion on the seeds of the prosecution case must depend
upon a variety of factors which would vary from case to case. Even a long
delay in filing report of an occurrence can be condoned if the witnesses on
whose evidence the prosecution relies have no motive for implicating the
accused. On the other hand, prompt filing of the report is not an
unmistakable guarantee of the truthfulness of the version of the
prosecution.”

53. In State of Himachal Pradesh v. Rakesh Kumar[2], the Court repelled
the submission pertaining to delay in lodging of the FIR on the ground that
the first endeavour is always to take the person to the hospital
immediately so as to provide him medical treatment and only thereafter
report the incident to the police. The Court in the said case further held
that every minute was precious and, therefore, it is natural that the
witnesses accompanying the deceased first tried to take him to the hospital
so as to enable him to get immediate medical treatment. Such action was
definitely in accordance with normal human conduct and psychology. When
their efforts failed and the deceased died they immediately reported the
incident to the police. The Court, under the said circumstances ruled that
in fact, it was a case of quick reporting to the police.

Judged on the anvil of the aforesaid decisions, we have no hesitation
in arriving at the conclusion that there was no delay in lodging of the
FIR.

Non-mentioning of assailants in the FIR

54. An argument was advanced assailing the FIR to the effect that the FIR
does not contain: (i) the names of the assailants either in the MLC, Ex.PW-
51/A, or in the complaint, Ex.PW-1/A, (ii) the description of the bus and

(iii) the use of iron rods.

55. As far as the argument that the FIR does not contain the names of all
the accused persons is concerned, it has to be kept in mind that it is
settled law that FIR is not an encyclopedia of facts and it is not expected
from a victim to give details of the incident either in the FIR or in the
brief history given to the doctors. FIR is not an encyclopedia which is
expected to contain all the details of the prosecution case; it may be
sufficient if the broad facts of the prosecution case alone appear. If any
overt act is attributed to a particular accused among the assailants, it
must be given greater assurance. In this context, reference to certain
authorities would be fruitful.

56. In Rattan Singh v. State of H.P.[3], the Court, while repelling the
submission for accepting the view of the trial court took note of the fact
that there had been omission of the details and observed that the criminal
courts should not be fastidious with mere omissions in the first
information statement since such statements can neither be expected to be a
chronicle of every detail of what happened nor expected to contain an
exhaustive catalogue of the events which took place. The person who
furnishes the first information to the authorities might be fresh with the
facts but he need not necessarily have the skill or ability to reproduce
details of the entire story without anything missing therefrom. Some may
miss even important details in a narration. Quite often, the police
officer, who takes down the first information, would record what the
informant conveys to him without resorting to any elicitatory exercise. It
is voluntary narrative of the informant without interrogation which usually
goes into such statement and hence, any omission therein has to be
considered along with the other evidence to determine whether the fact so
omitted never happened at all. The Court also referred to the principles
stated in Pedda Narayana v. State of A.P.[4]; Sone Lal v. State of U.P.[5];
Gurnam Kaur v. Bakshish Singh[6].

57. In State of Uttar Pradesh v. Naresh and others[7], reiterating the
principle, the Court opined that it is settled legal proposition that FIR
is not an encyclopedia of the entire case. It may not and need not contain
all the details. Naming of the accused therein may be important but not
naming of the accused in FIR may not be a ground to doubt the contents
thereof in case the statement of the witness is found to be trustworthy.
The court has to determine after examining the entire factual scenario
whether a person has participated in the crime or has been falsely
implicated. The informant fully acquainted with the facts may lack
necessary skill or ability to reproduce details of the entire incident
without anything missing from the same. Some people may miss even the most
important details in narration. Therefore, in case the informant fails to
name a particular accused in the FIR, this ground alone cannot tilt the
balance of the case in favour of the accused. For the aforesaid purpose
reliance was placed upon Rotash v. State of Rajasthan[8] and Ranjit Singh
v. State of M.P.[9]

58. In Rotash (supra) this Court while dealing with the omission of
naming an accused in the FIR opined that:

“14. …. We, however, although did not intend to ignore the importance of
naming of an accused in the first information report, but herein we have
seen that he had been named in the earliest possible opportunity. Even
assuming that PW 1 did not name him in the first information report, we do
not find any reason to disbelieve the statement of Mooli Devi, PW 6. The
question is as to whether a person was implicated by way of an afterthought
or not must be judged having regard to the entire factual scenario
obtaining in the case. PW 6 received as many as four injuries.”

59. While dealing with a similar issue in Animireddy Venkata Ramana v.
Public Prosecutor[10], the Court held as under:

“13. … While considering the effect of some omissions in the first
information report on the part of the informant, a court cannot fail to
take into consideration the probable physical and mental condition of the
first informant. One of the important factors which may weigh with the
court is as to whether there was a possibility of false implication of the
appellants. Only with a view to test the veracity of the correctness of the
contents of the report, the court applies certain well-known principles of
caution.””

Thus, apart from other aspects what is required to be scrutinized is
that there is no attempt for false implication, application of principle of
caution and evaluation of the testimonies of the witnesses as regards their
trustworthiness.

60. In view of the aforesaid settled position of law, we are not disposed
to accept the contention that omission in the first statement of the
informant is fatal to the case. We are disposed to think so, for the
omission has to be considered in the backdrop of the entire factual
scenario, the materials brought on record and objective weighing of the
circumstances. The impact of the omission, as is discernible from the
authorities, has to be adjudged in the totality of the circumstances and
the veracity of the evidence. The involvement of the accused persons
cannot be determined solely on the basis of what has been mentioned in the
FIR.

61. In his statement recorded in the early hours of 17.12.2012, PW-1
stated about going to the Select City Walk Mall, Saket alongwith the
prosecutrix and boarding the bus. He has also stated about the presence of
four persons sitting in the cabin of the bus and two boys sitting behind
the cabin and clearly stated about the overt act. He has broadly made
reference to the accused persons and also to the overt acts. There are no
indications of fabrication in Ex.PW-1/A.

62. The victim and PW-1 were thrown out of the bus and after some time
they were admitted to the hospital. Both the injuries on PW-1’s person and
the gruesome acts against the victim must have put him in a traumatic
condition and it would not have been possible for him to recall and narrate
the entire incident to the police at one instance. It cannot be said that
merely because the names of the accused persons are not mentioned in the
FIR, it raises serious doubts about the prosecution case.

Appreciation of the evidence of PW-1

63. Having dealt with the contention of delay in lodging of the FIR and
omission of names in the FIR on the basis of the first statement of PW-1,
we may now proceed to appreciate the evidentiary value to be attached to
the testimony of PW-1 and the contentions advanced in this regard.

64. As per the evidence of PW-1, he alongwith the prosecutrix, on the
fateful day about 3:30 p.m., took an auto from Dwarka, New Delhi to Select
City Walk Mall, Saket, New Delhi, where they watched a movie till about
8:30 p.m. and, thereafter, left the Mall. As they could not get an auto for
Dwarka, they hired an auto for Munirka intending to take a bus (route No.

764) thereon. About 9:00 p.m. when they reached Munirka bus stand they
boarded a white colour chartered bus and JCL was calling for commuters to
Dwarka/Palam Mod. While boarding the bus, PW-1 noted that the bus had
“Yadav” written on its side; had yellow and green lines/stripes; the entry
gate was ahead of its front left tyre; and its front tyre was without a
wheel cover. After boarding, he saw that besides the boy (JCL) who was
calling for passengers and the driver, two other persons were sitting in
the driver’s cabin and two persons were seated inside the bus on either
side of the aisle. After the bus left the Munirka bus stand, the lights
inside the bus were turned off. Then accused Ram Singh, accused Akshay
Thakur and the JCL (all three identified later) came towards PW-1 and
verbally and physically assaulted him. When PW-1 resisted them, accused
Vinay and accused Pawan were called along with iron rods and all the
accused persons started hitting PW-1 with the iron rods. When the
prosecutrix attempted to call for help, PW-1 and the prosecutrix were
robbed of their possessions.

65. PW-1 was immobilized by accused Vinay and accused Pawan Kumar; while
others, viz., accused Ram Singh, Akshay and the JCL took the prosecutrix to
the rear side of the bus whereafter PW-1 heard the prosecutrix shout out
“chod do, bachao” and her cry. After the above, three accused committed the
heinous act of raping the prosecutrix, accused Vinay and Pawan then went to
the rear side of the bus while the other three pinned down PW-1.
Thereafter, accused Mukesh (originally driving the bus) hit PW-1 with the
rod and went to the rear side of the bus. PW-1 also heard one of the
accused saying “mar gayee, mar gayee”. After the incident, PW-1 and the
prosecutrix were dragged to the front door (because the rear door was
jammed) and were pushed out of the moving bus opposite Hotel Delhi 37.
After being thrown outside, the bus was turned in such a manner as to crush
both of them but PW-1 pulled the prosecutrix and himself out of the reach
of the wheels of the bus and saved their lives.

66. The statement of the informant, PW-1, was recorded by PW-74 in the
early hours of 17.12.12 and Ex.PW-1/A is the complaint. In his chief
examination, PW-74 deposes that he had given the complaint (rukka) to Ct.
Kripal Singh and sent him to the police station at 5:10 a.m. which thereby
leaves the time of recording the informant’s statement inconclusive. Even
if the version of PW-74 was to be relied upon and the informant’s statement
had been recorded by 5:10 a.m., DD entry which forms Ex.PW-57/C records
that till 5:30 a.m., no punishable offence has been reported to have
occurred and information of well-being had been recorded despite the fact
that previous DD entries had been recorded on the basis of telephonic
conversations between police officers at the hospital, the scene of crime
and the control room (both DD entries 6A and 7A had been recorded on the
basis of phone conversations). The first supplementary statement was
recorded around 7:30 a.m., on 17.12.2012 specifically with respect to the
bus in question. In this statement, Ex. PW-80/D1, PW-1 merely gives a
generic description of the bus. However, unlike in Ex. PW-1/A, in his
supplementary statement, the informant states that the bus was white in
colour with stripes of yellow and green, that there were 3 x 2 seats and
that if he remembered anything else, he would reveal the same. At this
time, the investigating agency had neither seized the bus nor arrested the
accused; the statement of the informant is, therefore, silent on specific
details about the same. PW’s second supplementary statement, Ex.PW-80/D3,
was recorded around noon on 17.12.2012 in which the informant, for the
first time since the time of the incident, revealed details about the bus
in which the crime allegedly occurred (that there was the word “Yadav”
written on the side, that the front wheel cover was missing), and also
revealed the names of the accused (Ram Singh, one Thakur, one
Mukesh/Ramesh, Vinay and Pawan).

67. The learned amicus curiae, Mr. Hegde, submitted that at every stage,
PW-1 made improvement in his statements. It was submitted that when PW-1
was confronted with the omissions Ex.PW-1/A, Ex.PW-8/D1 and Ex. PW-80/D3,
he stated that he was unable to talk at the time of recording of his
statement due to injury to the tongue. It was submitted that as per Ex.PW-
51/A, he sustained only simple injury and it does not state that PW-1
suffered injury to his tongue. It was further contended that the process
of improving and embellishing the informant’s statement did not end with
recording his statement under Section 161 CrPC. On 19.12.2012, the
informant made a statement under Section 164 CrPC before the Metropolitan
Magistrate, Saket Courts. This statement is the most comprehensive and
contains details which had been discovered by the prosecution by then such
as the names of all the accused (including the name of the JCL for the
first time) and details from inside the bus (colour of the seats and
curtains). It was contended that the improved version of PW-1 renders his
evidence unreliable and merely because he is an injured witness, his
evidence cannot be accepted.

68. It is urged by Mr. Hegde, learned amicus curiae, that inconsistencies
and omissions amounting to contradiction in the testimony of PW-1 make him
an untrustworthy and unreliable witness. The inconsistencies pointed out
by the learned amicus curiae pertain to the number of assailants, the
description of the bus and the identity of the accused. As regards the
omission, it is contended by him that the said witness had not mentioned
about the alleged use of rod in the FIR. He has further submitted that
though he has stated that he had been assaulted by the iron rods as per his
subsequent statement, yet the said statement is wholly unacceptable since
he had sustained only simple injuries.

69. Mr. Hegde, in his further criticism of the evidence of
PW-1, has put forth that the effort of the prosecution had been to
highlight the consistencies instead of explaining the inconsistencies.
That apart, submits Mr. Hegde, that the witness has revealed the story step
by step including the gradual recognition of the identity of the accused in
tandem with the process of investigation and in such a situation, his
testimony has to be looked with suspicion.

70. Mr. Sharma, learned counsel for the appellants – Mukesh and Pawan
Kumar Gupta, and Mr. Singh, learned counsel for the appellants – Vinay
Sharma and Akshay Kumar Singh, submit that the omissions in the statement
of PW-1 amount to contradictions in material particulars and such
contradictions go to the root of the case and, in fact, materially affect
the trial or the very case of the prosecution. Therefore, they submit that
the testimony of PW-1, who is treated as a star witness, is liable to be
discredited. Reliance has been placed on the authorities in State
Represented by Inspector of Police v. Saravanan another[11], Arumugam v.
State Represented by Inspector of Police, Tamil Nadu [12], Mahendra Pratap
Singh v. State of Uttar Pradesh[13] and Sunil Kumar Sambhudayal Gupta (Dr.)
and others v. State of Maharashtra[14].

71. The authorities that have been commended by Mr.
Sharma need to be appositely understood. In Arumugam (supra), the Court
was dealing with the issue of acceptance of the version of interested
witnesses. It has referred to Dalip Singh v. State of Punjab[15], State of
Punjab v. Jagir Singh, Baljit Singh and Karam Singh[16], Lehna v. State of
Haryana[17], Gangadhar Behera and others v. State of Orissa[18] and State
of Rajasthan v. Kalki and another[19] and opined that while normal
discrepancies do not corrode the credibility of a party’s case, material
discrepancies do so.

72. In Saravanan (supra), reiterating the principle, the Court held:
“18. …. it has been said time and again by this Court that while
appreciating the evidence of a witness, minor discrepancies on trivial
matters without affecting the core of the prosecution case, ought not to
prompt the court to reject evidence in its entirety. Further, on the
general tenor of the evidence given by the witness, the trial court upon
appreciation of evidence forms an opinion about the credibility thereof, in
the normal circumstances the appellate court would not be justified to
review it once again without justifiable reasons. It is the totality of the
situation, which has to be taken note of. Difference in some minor detail,
which does not otherwise affect the core of the prosecution case, even if
present, that itself would not prompt the court to reject the evidence on
minor variations and discrepancies.”

73. In Mahendra Pratap Singh (supra), the Court referred to the authority
in Inder Singh and another v. State (Delhi Administration)[20] wherein it
has been held thus:

“2. Credibility of testimony, oral and circumstantial, depends considerably
on a judicial evaluation of the totality, not isolated scrutiny. While it
is necessary that proof beyond reasonable doubt should be adduced in all
criminal cases, it is not necessary that it should be perfect.”

In the circumstance of the case, the Court, analyzing the evidence,
opined:

“62. From the above discussion of the evidence of the eyewitnesses
including injured witnesses, their evidence does not at all inspire
confidence and their evidence is running in conflict and contradiction with
the medical evidence and ballistic expert’s report in regard to the weapon
of offence, which was different from the one sealed in the police station.
The High Court has, in our opinion, disregarded the rule of judicial
prudence in converting the order of acquittal to conviction.”

74. In Sunil Kumar Sambhudayal Gupta (supra), while dealing with the
issue of material contradictions, the Court held:

“30. While appreciating the evidence, the court has to take into
consideration whether the contradictions/ omissions had been of such
magnitude that they may materially affer the trial. Minor contradictions,
inconsistencies, embellishments or improvements on trivial matters without
effecting the core of the prosecution case should not be made a ground to
reject the evidence in its entirety. The trial court, after going through
the entire evidence, must form an opinion about the credibility of the
witnesses and the appellate court in normal course would not be justified
in reviewing the same again without justifiable reasons. (Vide State v.
Saravanan)

31. Where the omission(s) amount to a contradiction, creating a serious
doubt about the truthfulness of a witness and the other witness also makes
material improvements before the court in order to make the evidence
acceptable, it cannot be safe to rely upon such evidence. (Vide State of
Rajasthan v. Rajendra Singh[21].)

32. The discrepancies in the evidence of eyewitnesses, if found to be not
minor in nature, may be a ground for disbelieving and discrediting their
evidence. In such circumstances, witnesses may not inspire confidence and
if their evidence is found to be in conflict and contradiction with other
evidence or with the statement already recorded, in such a case it cannot
be held that the prosecution proved its case beyond reasonable doubt.”
(Vide Mahendra Pratap Singh v. State of U.P. )”

And again:

“35. The courts have to label the category to which a discrepancy belongs.
While normal discrepancies do not corrode the credibility of a party’s
case, material discrepancies do so.” (See Syed Ibrahim v. State of A.P.[22]
and Arumugam v. State)

75. Mr. Luthra, learned senior counsel appearing for the respondent-
State, on the other hand, has disputed the stand of the appellants as
regards the discrepancies in the statement of PW-1. According to him, the
evidence of PW-1 cannot be discarded on grounds which are quite specious.
The circumstances in entirety are to be appreciated. He has placed reliance
on the appreciation of the trial court and contended that the appreciation
and analysis are absolutely impeccable. The relied upon paragraph is as
follows:

“The complainant PW1 in his deposition had corroborated his complaint
Ex.PW1/A; his statement Ex.PW80/D-1 recorded under section 161 Cr.P.C; his
supplementary statement Ex.PW80/D-3 and his statement Ex.PW1/B recorded
under section 164 CrPC; qua his visit to Select City Mall, Saket; then
moving to Munirka in an auto; boarding the bus Ex.P1; the incident;
throwing them out of the moving bus and attempt of accused to overrun the
victims by their bus.

It was argued by the Ld. Defence counsel that during his cross examination
PW1 was confronted with his statement Ex. PW1/A qua the factum of not
disclosing in it the user of iron rods; the description of bus, the name of
the assailants either in MLC Ex. PW51/A or in his complaint Ex.PW1/A.
However, I do not consider such omissions as fatal as it is a settled law
that FIR is not an encyclopedia of facts. The victim is not precluded from
explaining the facts in his subsequent statements. It is not expected of a
victim to disclose all the finer aspects of the incident in the FIR or in
the brief history given to the doctor; as doctor(s) are more concerned with
treatment of the victims. More so the victim who suffers from an incident,
obviously, is in a state of shock and it is only when we moves in his
comfort zone, he starts recollecting the events one by one and thus to stop
the victim from elaborating the facts to describe the finer details, if
left out earlier, would be too much.

Thus if PW1 had failed to give the description of the bus or of iron rods
to the doctor in his MLC Ex. PW51/A or in his complaint Ex. PW1/A it shall
not have any fatal effect on the prosecution case. What is fatal is the
material omissions, if any.”

76. The evidence of PW-1 is assailed contending that he is not a reliable
witness. During the cross-examination, his evidence was assailed contending
that Ex.PW-1/A is replete with contradictions and inconsistencies. Taking
us through the evidence, Mr. Singh has submitted that in his first
statement, Ex.PW-1/A, there were lot of omissions and contradictions and
the improvements in his subsequent statements render the evidence wholly
untrustworthy. The appellants, in an attempt to assail the credibility of
the testimony of PW-1, inter alia, raised the contentions: (i) Non-
disclosure of the use of iron rod and (ii) the names of the assailants in
the MLC in Ex. PW-51/A or in Ex.PW-1/A. However, the trial court held these
assertions as non-fatal to PW-1’s testimony:

“… It is not expected of a victim to disclose all the finer aspects of
the incident in the FIR or in the brief history given to the doctor; as
doctor(s) are more concerned with treatment of the victims. More so the
victim who suffers from an incident, obviously, is in a state of shock and
it is only when we move in his comfort zone, he starts recollecting the
events one by one and thus to stop the victim from elaborating the facts to
describe the finer details, if left out earlier, would be too much.”

77. The contentions assailing the evidence of PW-1 does not merit
acceptance, for at the time when he was first examined his friend (the
prosecutrix) was critically injured and he was in a shocked mental
condition. The evidence of a witness is not to be disbelieved simply
because he is a partisan witness or related to the prosecution. It is to
be weighed whether he was present or not and whether he is telling the
truth or not.

78. The informant, PW-1, in his deposition, has clearly spoken about the
occurrence and also corroborated his complaint, Ex.PW-1/A. The evidence of
PW-1 is unimpeachable in character and the roving cross-examination has not
eroded his credibility. It is necessary to mention here that PW-1 was
admitted in the casualty ward of Safdarjung Hospital. As he was injured, he
was medically examined by Dr. Sachin Bajaj, PW-51, and as per the evidence,
Ext.PW-51/A, the following injuries were found on his body:

(a) 1cm X1 cm size clean lacertated wound over the vertex of scalp (head
injury);

(b) 0.5 X 1 cm size clean lacerated wound over left upper leg;

(c) 1X 0.2 cm size abrasion over right knee.

79. The injuries found on the person of PW-1 and the fact that PW-1 was
injured in the same occurrence lends assurance to his testimony that he was
present at the time of the occurrence along with the prosecutrix. The
evidence of an injured witness is entitled to a greater weight and the
testimony of such a witness is considered to be beyond reproach and
reliable. Firm, cogent and convincing ground is required to discard the
evidence of an injured witness. It is to be kept in mind that the
evidentiary value of an injured witness carries great weight. In Mano Dutt
and another v. State of Uttar Pradesh[23], it was held as under:
“31. We may merely refer to Abdul Sayeed v. State of M.P.[24] where this
Court held as under:

“28. The question of the weight to be attached to the evidence of a witness
that was himself injured in the course of the occurrence has been
extensively discussed by this Court. Where a witness to the occurrence has
himself been injured in the incident, the testimony of such a witness is
generally considered to be very reliable, as he is a witness that comes
with a built-in guarantee of his presence at the scene of the crime and is
unlikely to spare his actual assailant(s) in order to falsely implicate
someone. ‘Convincing evidence is required to discredit an injured witness.’
[Vide Ramlagan Singh v. State of Bihar[25], Malkhan Singh v. State of
U.P.[26], Machhi Singh v. State of Punjab[27], Appabhai v. State of
Gujarat [28], Bonkya v. State of Maharashtra[29], Bhag Singh v. State of
Punjab[30], Mohar v. State of U.P.[31], Dinesh Kumar v. State of
Rajasthan[32], Vishnu v. State of Rajasthan[33], Annareddy Sambasiva Reddy
v. State of A.P.[34] and Balraje v. State of Maharashtra[35].]

29. While deciding this issue, a similar view was taken in Jarnail Singh v.
State of Punjab[36] where this Court reiterated the special evidentiary
status accorded to the testimony of an injured accused and relying on its
earlier judgments held as under:

‘28. Darshan Singh (PW 4) was an injured witness. He had been examined by
the doctor. His testimony could not be brushed aside lightly. He had given
full details of the incident as he was present at the time when the
assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of
Karnataka[37] this Court has held that the deposition of the injured
witness should be relied upon unless there are strong grounds for rejection
of his evidence on the basis of major contradictions and discrepancies, for
the reason that his presence on the scene stands established in case it is
proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand[38] a similar view has been reiterated
observing that the testimony of a stamped witness has its own relevance and
efficacy. The fact that the witness sustained injuries at the time and
place of occurrence, lends support to his testimony that he was present
during the occurrence. In case the injured witness is subjected to lengthy
cross-examination and nothing can be elicited to discard his testimony, it
should be relied upon (vide Krishan v. State of Haryana[39]. Thus, we are
of the considered opinion that evidence of Darshan Singh (PW 4) has rightly
been relied upon by the courts below.’

30. The law on the point can be summarised to the effect that the testimony
of the injured witness is accorded a special status in law. This is as a
consequence of the fact that the injury to the witness is an inbuilt
guarantee of his presence at the scene of the crime and because the witness
will not want to let his actual assailant go unpunished merely to falsely
implicate a third party for the commission of the offence. Thus, the
deposition of the injured witness should be relied upon unless there are
strong grounds for rejection of his evidence on the basis of major
contradictions and discrepancies therein.”

To the similar effect is the judgment of this Court in Balraje (supra).”

80. As is manifest from the evidence, S.I. Pratibha Sharma, PW-80,
recorded the First Supplementary Statement under Section 161 CrPC of the
informant, PW-1, Awninder Pratap Singh about 7:30 a.m. on 17.12.2012.
Thereafter, PW-1, the informant, took PW-80, S.I. Pratibha Sharma, to the
spot from where he and the prosecutrix had boarded the bus.

81. Apart from the injuries sustained, the presence of PW-1 is further
confirmed by the DNA analysis of:

the bloodstained mulberry leaves and grass that were collected from the
spot in Mahipalpur where they were thrown off the bus; (Ex.74/C )

the blood stains on Vinay’s jacket (Ex.68/2) (as per Seizure Memo Ex.
68/3), Pawan’s sweater (Ex. P.68/6) (as per Ex. PW68/F ) and Akshay’s
jeans (Ex P.68/6) tying them to the incident; (from the trial court
judgment); and

the unburnt cloth pieces belonging to PW-1 that were recovered alongwith
the ashes of the prosecutrix’s clothing (Ex. PW74/M).

82. The trial court judgment was fortified by the decisions of this Court
in Pudhu Raja and another v. State Represented by Inspector of Police[40],
Jaswant Singh v. State of Haryana[41] and Akhtar and others v. State of
Uttaranchal[42] on the law of material omissions and contradictions.
Concurringly, the High Court too observed that the defence had failed to
demonstrate from the informant’s testimony such discrepancies, omissions
and improvements that would have caused the High Court to reject such
testimony after testing it on the anvil of the law laid down by this Court:
“325. …Their throbbing injuries and the rigors of the weather coupled
with the state of their minds must have at that point of time brought forth
their instinct of survival and self preservation. The desire to have
apprehended their assailants and to mete out just desserts to them could
not have been their priority. …”

83. In this context, we may fruitfully reproduce a passage from State of
U.P. v. M.K. Anthony[43]:

“10. While appreciating the evidence of a witness, the approach must be
whether the evidence of the witness read as a whole appears to have a ring
of truth. Once that impression is formed, it is undoubtedly necessary for
the court to scrutinise the evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out in the evidence as a
whole and evaluate them to find out whether it is against the general tenor
of the evidence given by the witness and whether the earlier evaluation of
the evidence is shaken as to render it unworthy of belief. Minor
discrepancies on trivial matters not touching the core of the case, hyper-
technical approach by taking sentences torn out of context here or there
from the evidence, attaching importance to some technical error committed
by the investigating officer not going to the root of the matter would not
ordinarily permit rejection of the evidence as a whole. …”

84. In Harijana Thirupala v. Public Prosecutor, High Court of A.P.[44],
it has been ruled that:

“11. …. In appreciating the evidence the approach of the court must be
integrated not truncated or isolated. In other words, the impact of the
evidence in totality on the prosecution case or innocence of the accused
has to be kept in mind in coming to the conclusion as to the guilt or
otherwise of the accused. In reaching a conclusion about the guilt of the
accused, the court has to appreciate, analyse and assess the evidence
placed before it by the yardstick of probabilities, its intrinsic value and
the animus of witnesses.”

85. In Ugar Ahir v. State of Bihar[45], a three-Judge Bench held:
“7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in
everything) is neither a sound rule of law nor a rule of practice. Hardly
one comes across a witness whose evidence does not contain a grain of
untruth or at any rate exaggerations, embroideries or embellishments. It
is, therefore, the duty of the court to scrutinise the evidence carefully
and, in terms of the felicitous metaphor, separate the grain from the
chaff. But, it cannot obviously disbelieve the substratum of the
prosecution case or the material parts of the evidence and reconstruct a
story of its own out of the rest.”

86. In Krishna Mochi v. State of Bihar[46], the Court ruled that:
“32. …. The court while appreciating the evidence should not lose sight of
these realities of life and cannot afford to take an unrealistic approach
by sitting in an ivory tower. I find that in recent times the tendency to
acquit an accused easily is galloping fast. It is very easy to pass an
order of acquittal on the basis of minor points raised in the case by a
short judgment so as to achieve the yardstick of disposal. Some discrepancy
is bound to be there in each and every case which should not weigh with the
court so long it does not materially affect the prosecution case. In case
discrepancies pointed out are in the realm of pebbles, the court should
tread upon it, but if the same are boulders, the court should not make an
attempt to jump over the same. These days when crime is looming large and
humanity is suffering and the society is so much affected thereby, duties
and responsibilities of the courts have become much more. Now the maxim
“let hundred guilty persons be acquitted, but not a single innocent be
convicted” is, in practice, changing the world over and courts have been
compelled to accept that “society suffers by wrong convictions and it
equally suffers by wrong acquittals”. I find that this Court in recent
times has conscientiously taken notice of these facts from time to time”.

87. In Inder Singh (supra), Krishna Iyer, J. laid down that:
“Proof beyond reasonable doubt is a guideline, not a fetish and guilty man
cannot get away with it because truth suffers some infirmity when projected
through human processes.”

88. In the case of State of U.P. v. Anil Singh[47], it was held that a
Judge does not preside over a criminal trial merely to see that no innocent
man is punished. A Judge also presides to see that a guilty man does not
escape. One is as important as the other. Both are public duties which the
Judge has to perform.

89. In Mohan Singh and another v. State of M.P.[48], this Court has held:
“11. The question is how to test the veracity of the prosecution story
especially when it is with some variance with the medical evidence. Mere
variance of the prosecution story with the medical evidence, in all cases,
should not lead to the conclusion, inevitably to reject the prosecution
story. Efforts should be made to find the truth, this is the very object
for which courts are created. To search it out, the courts have been
removing the chaff from the grain. It has to disperse the suspicious cloud
and dust out the smear of dust as all these things clog the very truth. So
long as chaff, cloud and dust remain, the criminals are clothed with this
protective layer to receive the benefit of doubt. So it is a solemn duty of
the courts, not to merely conclude and leave the case the moment suspicions
are created. It is the onerous duty of the court, within permissible limit,
to find out the truth. It means on one hand, no innocent man should be
punished but on the other hand, to see no person committing an offence
should get scot-free. If in spite of such effort, suspicion is not
dissolved, it remains writ at large, benefit of doubt has to be credited to
the accused. For this, one has to comprehend the totality of the facts and
the circumstances as spelled out through the evidence, depending on the
facts of each case by testing the credibility of eyewitnesses including the
medical evidence, of course, after excluding those parts of the evidence
which are vague and uncertain. There is no mathematical formula through
which the truthfulness of a prosecution or a defence case could be
concretised. It would depend on the evidence of each case including the
manner of deposition and his demeans (sic), clarity, corroboration of
witnesses and overall, the conscience of a judge evoked by the evidence on
record. So courts have to proceed further and make genuine efforts within
the judicial sphere to search out the truth and not stop at the threshold
of creation of doubt to confer benefit of doubt.”

90. Keeping the aforesaid aspects in view, we shall now proceed to test
the submission of the learned counsel for the appellants and the learned
amicus curiae on the issue whether the testimony of PW-1 deserves
acceptance being reliable or not. It is no doubt true that in the earlier
statement of PW-1, that is, Ex.PW-1/A, there are certain omissions; but the
main thing to be seen is whether the omissions go to the root of the matter
or pertain to insignificant aspects. The evidence of PW-1 is not to be
disbelieved simply because there were certain omissions. The trial Court
as well as the High Court found his evidence credible and trustworthy and
we find no reason to take a different view.

91. The case of the prosecution is attacked contending that PW-1 is a
planted witness and that he keeps on improving his version. It is
submitted that PW-1 is not reliable as had he been present at the time of
occurrence, he would have endeavoured to save the victim and the nature of
injuries as mentioned in Ex. PW-51/A on the person of PW-1 raises serious
doubt about his presence at the time of occurrence.

92. The prosecutrix and PW-1 were surrounded and attacked by at least six
accused persons. As narrated by PW-1, he was pinned down by two of the
assailants while the others committed rape on the prosecutrix on the rear
side of the bus. The accused persons were in a group and were also armed
with iron rods. PW-1 was held by them. It would not have been possible for
PW-1 to resist the number of accused persons and save the prosecutrix. The
evidence of PW-1 cannot be doubted on the ground that he had not interfered
with the occurrence. The improvements made in the supplementary statement
need not necessarily render PW-1’s evidence untrustworthy more so when PW-1
has no reason to falsely implicate the accused.

93. Learned counsel for the State has highlighted that the version of PW-
1 is absolutely consistent and the trial court as well as the High Court
has correctly relied upon his testimony. He has drawn our attention to the
version of PW-1 in the FIR, the statement recorded under Section 164 CrPC
and his testimony before the trial court. We have given anxious
consideration and perused the FIR, supplementary statements recorded under
Section 164 CrPC and appreciated the evidence in court and we find that
there is no justification or warrant to treat the version of the witness as
inconsistent. The consistency is writ large and the witness, as we
perceive, is credible.

94. Mr. Luthra, learned senior counsel, further contested the argument
advanced on behalf of the appellants as regards the discrepancies so far as
PW-1 is concerned. As regards the items stolen, it is recorded in the FIR
that the accused persons stole the informant’s Samsung Galaxy Mobile phone
bearing 7827917720 and 9540034561 and his wallet containing Rs.1000, ICICI
debit card, Citi Bank Credit Card, ID Card, one silver ring, one gold ring
and took off all his clothes, i.e., khakhi coloured blazer, grey sweater,
black jeans, black Hush Puppies shoes and they also stole the prosecutrix’s
mobile phone with number 9818358144. His statement recorded under Section
164 CrPC states that the accused snatched the Samsung Galaxy S-Duos Mobile,
one more mobile phone of Samsung, one purse with Rs. 1000, one Citibank
credit card, ICICI Debit Card, Company I-Card, Delhi Metro Card and also
snatched black jeans, one silver ring, one gold ring, Hush Puppies shoes.
They also snatched the prosecutrix’s Nokia mobile phone and grey colour
purse and both the wrist watches. Before the trial court, he deposed that
they snatched both the rings, shoes, purse containing cards and cash, socks
and belt; they took off all his clothes and left him in an underwear; the
accused had also taken off all the prosecutrix’s clothes and snatched all
her belongings including grey purse containing Axis bank card. PW-1 also
identified Hush Puppies shoes, Ex. P-2, Sonata watch, Ex. P-3, metro card,
Ex. P-5, Samsung Galaxy Duos, Ex. P-6, and currency notes, Ex. P-7. As
regards the weapon of assault, in the FIR and in the Section 164 statement,
“rod” was recorded as weapon of assault and in his testimony before the
trial court, PW-1 deposed that the weapon of assault was “iron rods”. So
far as throwing from the bus is concerned, it is recorded in the FIR that
the other accused persons told the driver to drive the bus at a fast speed
and then tried to throw the informant from the back door of the bus,
however, the back door of the bus did not open. Then they threw both the
informant and the prosecutrix from the moving bus near NH 8 Mahipalpur on
the side of the road. His statement recorded under Section 164 CrPC states
that the bus driver was driving the bus at a fast speed on being told by
the other accused and he heard them saying that the girl had died and to
throw her off the bus. They then took the informant and the prosecutrix to
the rear door of the bus but could not open the door and, therefore,
dragged them to the front door of the bus and threw them out. The bus
driver turned the bus in such a manner after throwing them, that if the
informant had not pulled the prosecutrix, then the bus would have run over
her. PW-1 has deposed before the trial court that he heard one of the
accused saying “mar gayee, mar gayee”; the accused were exhorting that the
informant and the prosecutrix should not be left alive; the accused persons
pulled the informant near the rear door and put the prosecutrix on him.
The rear door was closed, so they dragged both the informant and the
prosecutrix to the front door; they were thrown off opposite Hotel Delhi
37; after they were thrown, the accused persons turned the bus and tried to
crush them under the wheels. As regards the naming/description of the
accused, the FIR recorded that the accused were aged between 25-30 years;
one of them had a flat nose and was the youngest; one of them wore a red
banian and they were wearing pant and shirt; and the accused were named as
Ram Singh, Thakur, Mukesh, Vinay and Pawan. In the statement, it was
recorded that he saw a dark coloured man who was being called “Mukesh,
Mukesh”; he over-heard them calling each other as Ram Singh, Thakur; and
the other three were addressing each other Pawan and Vinay and taking the
name of JCL. In his testimony, it is recorded that he identified A-2,
Mukesh, as Driver, A-1, Ram Singh, and A-3, Akshay, as persons sitting in
the driver’s cabin and identified A-4, Vinay, and A-5, Pawan, as persons
sitting in the bus.

95. As regards the minor contradictions/omissions, the trial court has
placed reliance upon Pudhu Raja (supra) and Jaswant Singh (supra) and
treated the version of PW-1 as reliable. The testimony of PW-1 has been
placed reliance upon by both the Courts and on an anxious and careful
scrutiny of the same, we do not perceive any reason to differ with the said
view.

96. As we find, the trial court has come to the conclusion that the
incident has been aptly described by PW-1, the injured. The injuries on his
person do show that he was present in the bus at the time of the incident.
His presence is further confirmed by the DNA analysis. Suffice it to say
for the present, the contradictions in the statement, Ex.PW-1/A, are not
material enough to destroy the substratum of the prosecution case. From
the studied analysis of the evidence of PW-1, it is the only inevitable
conclusion because the appreciation is founded on yardstick of
consideration of totality of evidence and its intrinsic value on proper
assessment.

Recovery of the bus and the CCTV footage

97. The endeavour of the prosecution was to first check the route and get
a clue of the bus. For the aforesaid purpose, the CCTV footage becomes
quite relevant. The story starts from the Select City Walk Mall, Saket and
hence, we have to start from there. As per the case of the prosecution, the
informant and the prosecutrix had gone to Select City Walk Mall, Saket to
see a film. The CCTV footage produced by PW-25, Rajender Singh Bisht, in a
CD, Ex.PW-25/C-1 and PW-25/C-2, and the photographs, Ex.PW-25/B-1 to Ex.PW-
25/B-7, are evident of the fact that the informant and the prosecutrix were
present at Saket till 8:57 p.m. The certificate under Section 65B of the
Evidence Act with respect to the said footage is proved by PW-26, Shri
Sandeep Singh, vide Ex.PW-26/A. The informant as well as the prosecutrix
gave brief description of the entire incident in their MLCs which led the
investigating team to the Hotel near Delhi Airport where the prosecutrix
and the informant were dumped after the incident. PW-67, Pramod Kumar Jha,
the owner of the Hotel at Delhi Airport, was examined by the investigating
officers regarding the present incident. He handed over the pen drive
containing the CCTV footage, Ex.P-67/1, and the CD, Ex.P-67/2 to the I.O.
which were seized vide seizure memo Ex.PW-67/A. The CCTV footage and the
photographs were identified by PW-67, Pramod Jha, PW-74. SI Subhash Chand,
and Gautam Roy, PW-76, from CFSL during their examination in Court. The
CCTV footage twice showed a white coloured bus having yellow and green
stripes at 9:34 p.m. and again at 9:53 p.m. The bus exactly matched the
description of the offending bus given by the informant. It had the word
“Yadav” written on one of its sides and its front tyre on the left side did
not have a wheel cap. PW-78, the S.H.O., Inspector Anil Sharma, has further
deposed that the said CCTV footage seized vide seizure memo Ex.PW-67/A was
sent to the CFSL through SI Sushil Sawariya, PW-54, on 02.01.2013, and this
part of the testimony of PW-78 is corroborated by the testimony of PW-54,
SI Sushil Sawaria, and PW-77, the MHC(M). Thereafter, on 03.01.2013, the
report of the CFSL was received. In fact, the trial court had assured
itself of the correct identification of the bus by playing the said CCTV
footage shown in the pen drive, Ex.PW-67/1, and the CD, Ex.PW-67/2, during
the cross-examination of PW-67, Pramod Jha.

98. Learned counsel Mr. Singh has asserted that bus, Ex. P-1, has been
falsely implicated in the present case as is evidenced from the recovery of
the CCTV footage. In an attempt to discredit the CCTV footage, he pointed
out that only the CCTV recording alleged to be of this bus was recorded and
not of all other white buses that had ‘Yadav’ written on them. The learned
counsel for the defence subsequently maintained that the CCTV footage
cannot be relied upon as the same has been tampered with by the
investigating officers.

99. PW-76, Gautam Roy, HOD, Computer Cell, Forensic Division, has
testified that on 02.01.2013, he had received two sealed parcels sealed
with the seal of PS and the seals tallied with the specimen seals provided.
He marked the blue coloured pen drive found in parcel No.1 as Ex.1 and the
Moser Baer CD found in the second parcel as Ex.2. He further testified that
both the exhibits were played by him in the computer and the bus was seen
twice, at 9:34 p.m. and 9:54 p.m. He had photographed all these three by
freezing the pen drive and the CD and these photographs were compared by
him with the photographs taken by the photographer, PW-79, P.K. Gottam,
which he had summoned. The witness testified that he had prepared the three
comparison charts in this regard as Ex.PW-76/B, PW-76/C and PW-76/D, and
his detailed report as Ex.PW-76/E. The footage taken in a CD and pen drive
was sealed in PW-67’s presence and as the recording was automatic data
being fed on regular basis into the hard disk, the question of tampering
with the same could not arise. PW-79, P.K. Gottam, from CFSL, CBI, has
stated in his examination that he took photographs of the bus bearing No.DL-
1P-C-0149 parked at Thyagraj Stadium, INA, New Delhi from different angles
on 17.12.2012 and 18.12.2012 and handed over the same to PW-76. The said
photographs were marked as B1 in Ex.PW-76/B; as C1 and C2 in Ex.PW-76/C;
and as D1 in Ex.PW-76/D. He has deposed as to the genuineness of the
photographs by deposing that the software used for developing the
photographs was tamper proof.

100. Once it is proved before the court through the testimony of the
experts that the photographs and the CCTV footage are not tampered with,
there is no reason or justification to perceive the same with the lens of
doubt. The opinion of the CFSL expert contained in the CFSL report marked
as Ex.PW-76/E authenticates that there was no tampering or editing in both
the exhibits, Ex.P-67/1 and Ex.P- 67/2, and that a bus having identical
patterns as the one parked at Thyagraj Stadium is seen in the CCTV footage,
which includes the word “Yadav” written on one side, “back side dent
(left)” and absence of wheel cover on the front left side. The contents of
the report is also admitted to be true by its author, PW-76, Gautam Roy.
Quite apart from that, it is perceptible that the High Court, in order to
satisfy itself, had got the CCTV footage played during the hearing and
found the same to be creditworthy and acceptable.

101. As the narrative proceeds, the next step was to find out the
bus. The identity of the bus in the CCTV footage was known and the said
knowledge could propel the prosecution to move for recovery. We may start
from the beginning. The bus, Ex. P-1, bearing registration No. DL-
1P-C-0149, is the vehicle alleged to have been involved in the incident. PW-
74, SI Subhash Chand, on 17.12.2012, along with PW-1, the informant, and PW-
80, WSI Pratibha Singh, went to Munirka bus stand from where the victims
had boarded the alleged bus, Ex. P-1, and then to Mahipalpur to the spot
where both the victims were thrown off the bus on 16.12.2012. After the
collection of exhibits from the spot, PW-74 and PW-80 went to the hotels
opposite the spot having CCTV cameras installed and amongst those was Hotel
Delhi 37. At the said hotel, the informant/PW-1 identified the bus they had
boarded in the CCTV footage of the road and the relevant footage of the
recording was taken in a pen drive and CD and was handed over to the
Investigating Officer as Ex. PW-67/A. Later in the day, secret information
was received by PW-80 that the alleged bus was parked at Sector 3, R.K.
Puram. PW-74 accompanied PW-80 and PW-65, Ct Kripal Singh, to Ravidass Camp
where a bus matching the description given by PW-1 was parked near the
Gurudwara. It was white in colour with ‘Yadav’ written on the side. When
the police approached the bus, A-1, Ram Singh, got down from it and started
to run; he was later apprehended in a chase by PW-74 and PW-65. From A-1,
the fitness certificate, PUC and other documents regarding the registration
of the vehicle DL-1PC-0149 were seized as Ex. PW-74/I, PW-74/J and PW-74/K.
The entry door of the bus was ahead of the front wheel and the wheel cap
was missing from the front tyre. After recovery of the burnt clothes at the
behest of A1, he was sent to the police station with PW-65. PW-42,
Ct. Suresh Kumar, was called to the spot and he drove the bus to
Thyagraj Stadium around 5:45 p.m. on the same day. An inspection of the
bus was conducted inside the stadium and the CFSL team lifted Ex. PW-74/P.
Thereafter, PW-32, SI Vishal Chaudhary, and PW-33, SI Vikas Rana, were
called from police station Kotla Mubarakpur to guard the bus.

102. Mr. Singh has raised the following issues with respect to the
identification and recovery of the alleged bus:

CCTV footage was not properly examined to check all possible buses plying
on the said route;

The bus was taken to Thyagraj Stadium instead of the Police Station to
avoid the media and to better facilitate the planting of evidence; and

PW-81, Dinesh Yadav, owner of the Bus was in judicial custody for 6 months
before his examination in the Court and he was so detained in custody to
bring pressure upon him.

103. Mr. Singh has made bald allegation that the bus, Ex P-1, was
falsely implicated and that all the DNA evidence recovered therefrom was
actually planted. He contends that the bus, Ex. P-1, was sent to Thyagraj
Stadium instead of the concerned Police Station, PS Vasant Vihar, with the
deliberate intention of avoiding the media attention so that the evidence
could be planted easily. This argument is in furtherance of his false
implication theory. He has, however, provided no further specific
assertions to cast a doubt in our mind that the police has planted the
evidence in the bus.

104. Mr. Luthra, in his turn, relying on the decision of the Delhi
High Court in Manjit Singh v. State[49], has placed statistics before us
pointing to the paucity of physical space in police stations across the
city. In Manjit Singh (supra), the High Court had ordered the Delhi Police
to furnish data regarding case properties with the Police. The High Court
noted that there was an accumulation of “2,86,741 case properties including
25,547 vehicles, out of which as many as 2,479 properties are lying in
public places outside the police stations”. Given the state of affairs, the
submission put forth by Mr. Luthra is acceptable. There is dearth of space
inside the police stations in Delhi and the use of Thyagraj Stadium as
parking lot in the present case does not necessarily mean that there was
any mala fide intention on the part of the investigating agency without any
specific assertion to advance the said bald allegation.

105. It may also be noted that on 17.12.2012, PW-42, Ct. Suresh
Kumar, drove the bus from Ravidass Camp to Thyagraj Stadium around 5:45
p.m. along with PW-74 and PW-80. About 6:15 p.m., PW-32, SI Vishal
Chaudhary, along with Ct. Amit, both of PS Kotla Mubarakpur, were sent to
Thyagraj Stadium where on the instructions of PW-80, SI Pratibha, PW-
32, guarded the bus till 8:00 a.m. the next day. On 18.12.2012, he handed
over the charge of guarding the bus to PW-33, SI Vikas Rana, PS Kotla
Mubarakpur, and he guarded the bus till 8:30 p.m., until after the CFSL
team left. Thus, the criticism as regards the parking of the bus at
Thyagraj Stadium and not at the Police Station pales into insignificance.

Reliability of the testimony of PW-81 (the owner of the bus)

106. Having dealt with the recovery of the bus, it is necessary to
dwell upon the contention put forth by the learned counsel for the
appellants which pertains to the acceptability and reliability of the
testimony of PW-81, Dinesh Yadav. The principal contention in this regard
is that PW-81, Dinesh Yadav, the owner of the bus, was in judicial custody
and, therefore, his version in the court is under tremendous pressure as he
was desirous of getting a bail order to enjoy his liberty. Highlighting
this aspect, it is urged by Mr. Sharma and Mr. Singh, learned counsel for
the appellants, that the testimony of the said witness deserves to be
totally discarded.

107. PW-81, Dinesh Yadav, is a transporter and owns 8 to 10 buses
including Ex. P-1. He runs the buses under the name ‘Yadav Travels’. He was
examined by the prosecution to prove that A-1, A-2 and A-3 are connected
with the bus, Ex. P-1. In his examination, PW-81 admitted that the word
‘Yadav’ is written across Ex. P-1 and that it is white in colour with
yellow stripes. PW-81 stated that A-1, Ram Singh (since deceased), was the
driver of the said bus in December 2012, A-3, Akshay Kumar Singh, was his
helper and the bus was usually parked by A-1, Ram Singh, in R.K. Puram,
near his residence. The bus was attached to Birla Vidya Niketan School,
Pushp Vihar, New Delhi to ferry students in the morning and also to a
Company, M/s Net Ambit, Sector 132, Noida, to take its employees from Delhi
to Noida. On 17.12.2012, the bus went from Delhi to Sector 132, Noida to
take the staff of M/s Net Ambit to their office and PW-81 was informed by A-
1, Ram Singh, or A-2, Mukesh, that the bus was checked at the DND toll
plaza on their route to Noida.

108. Learned counsel Mr. Singh has asserted that PW-81 was kept in
judicial custody to obtain a statement favourable to the prosecution in the
present case. In this aspect, it is noted that PW-81 also stated that he
was kept in judicial custody. The arrest was, however, not made in the
present case; it was in connection with another case in relation to
providing incorrect address to the Transport Authority. He was lodged in
jail in case FIR No. 02/2013 of PS Civil Lines under Sections 420, 468, 471
IPC. PW-81 had provided his friend’s address as his own at the time of
registration and was arrested on a complaint made by the Transport
Authority. He was named in the charge-sheet in the present case and was
cited as a witness at serial No. 36 but was dropped by the prosecution on
28.05.2013. Later on, his examination was sought by way of an application
under Section 311 CrPC. The application was allowed by the trial court
order dated 03.07.2013 on the ground that he was the owner of the bus and
his examination was necessary to prove as to whom he had handed over the
custody of the bus on the night of the incident, i.e., 16.12.2012. It is
limpid from the deposition of PW-81 that he was in judicial custody for a
separate offence and, therefore, it is difficult to accede to the argument
advanced by Mr. Singh that he was under pressure to support the version of
the prosecution.

109. Apart from the above, the prosecution, in order to place A-1 as
the driver of the bus, Ex. P-1, has examined PW-16, Rajeev Jakhmola. PW-16,
Manager (Admn) of Birla Vidya Niketan School, Pushp Vihar, handled their
transport. In his examination, he stated that PW-81, Dinesh Yadav, had
provided the school with 7 buses on contract basis including Ex. P-1 and
that A-1, Ram Singh, was its driver. He also submitted a copy of Ram
Singh’s Driving Licence to the Police along with the copy of the agreement
of the school with the owner of the bus, copy of the RC, copy of the
fitness certificate, certificate of third party technical inspection,
pollution certificate, two copies of certificate–cum-policy schedule
(Insurance), copy of certificate of training undergone by accused Ram
Singh, copy of permit and list of the transporters, collectively as Ex. PW-
16/A.

110. Thus, according to the prosecution, from the evidence of PW-16,
Rajeev Jakhmola, and PW-81, Dinesh Yadav, it stands proved that the bus in
question was routinely driven by Ram Singh. When an argument was raised
before the High Court over the veracity of PW-81’s testimony, it recorded
as under:

“270. We are constrained to say that there is no substance in the aforesaid
contention of Mr. Sharma for the reason that PW-81 Dinesh Yadav, the owner
of the bus bearing registration No.DL1PC-0149, in which the offence was
committed, has categorically stated in his cross-examination that bus Ex.P-
1 was being used for ferrying the students in the morning and thereafter as
a chartered bus for taking the officials of M/s. Net Ambit from Delhi to
Noida. He further stated in cross-examination that on 17.12.2012, the bus
took the staff of M/s. Net Ambit from Delhi to Sector 132, Noida, UP. Quite
apparently, therefore, accused Ram Singh as disclosed by him had thrown the
SIM card nearabout the bus stand of Sector 37, where according to PW-44
Mohd. Zeeshan, it was found at the noon hour. Since it is not in dispute
that accused Ram Singh was the driver of the bus and this fact stands fully
established by the evidence on record, Noida was possibly found by him to
be the safest destination to dispose of the SIM card.”

111. The aforesaid analysis commends our approval because we, having
analysed the said aspect on our own, have arrived at the same conclusion.
There is no trace of doubt that the testimony of the said witness
withstands close scrutiny and there is no reason to treat it with any kind
of disapproval. That apart, the evidence of PW-16 corroborates the
testimony of the owner of the bus.

Personal search and statements of disclosure leading to recovery

112. Learned counsel for the appellants have seriously questioned
the arrest of the accused persons and the recoveries made pursuant to the
said arrest. It is the stand of the prosecution that pursuant to the
arrest of all the accused A-1 to A-5, there were disclosure statements
recorded under Section 27 of the Evidence Act which led to recoveries of
incriminating articles such as objects belonging to the victims as also
objects which have been linked orally or scientifically (such as through
DNA profiling) to the prosecutrix and PW-1. These material objects
recovered are used to link the convicts with the crime and corroborate the
version of the eye witness PW-1 and the dying declaration of the deceased
victim.

113. First, we shall refer to the arrest of Ram Singh and the
recoveries made at his instance. As already stated, on 17.12.2012, PW-80,
SI Pratibha Sharma, had spotted accused Ram Singh sitting in the offending
bus, Ex. P1, which was parked at Ravidass Camp, R.K. Puram, New Delhi. On
seeing the police, Ram Singh got down from the bus and started running. He
was chased and instantly arrested at 4:15 p.m. vide memo Ex.PW-74/D and
subsequently, his personal search was conducted vide memo Ex.PW-74/E and
his disclosure Ex.PW-74/F was recorded. Notably, Ram Singh has led to
several important discoveries and seizures from inside the bus.

114. Accused Mukesh was apprehended on 18.12.2012 from village
Karoli, Rajasthan, by a team headed by PW-58, SI Arvind. He produced
accused Mukesh before PW-80, SI Pratibha Sharma, the Investigating Officer,
at Safdarjung Hospital in muffled face alongwith a mobile, Samsung Galaxy
Duos, Ex.P-6, seized by her vide memo Ex.PW-58/A. The accused was arrested
at 6:30 p.m. on 18-12-2012 by her vide memo Ex.PW-58/B and his personal
search was conducted vide memo Ex.PW-58/C. The accused pointed the Munirka
bus stand vide memo Ex.PW-68/K and the dumping spot vide memo Ex.PW-68/L.
This Samsung Galaxy phone was identified to be that of PW-1, the informant.

115. On 23.12.2012, accused Mukesh led the police to Anupam
Apartment, garage No. 2, Saidulajab, Saket, New Delhi, and got recovered a
green colour T-shirt, Ex.P-48/1, on which the word “play boy” was printed;
a grey colour pant, Ex.P-48/2, and a jacket, Ex.P-48/3, of bluish grey
colour, all seized vide memo Ex.PW-48/B. The Investigating Officer also
prepared the site plan, Ex.PW-80/I, of the place of recovery. On
24.12.2012, accused Mukesh also got prepared a route chart Ex.PW-80/H.

116. On 18.12.2012, accused Ram Singh led the Investigating Officer
to Ravidass Camp and pointed towards his associates, namely, accused Vinay
and accused Pawan. Accused Pawan was apprehended and arrested about 1:15
p.m. vide memo Ex.PW-60/A; his disclosure, Ex.PW-60/G, was recorded and his
personal search was conducted vide memo Ex.PW-60/C. Accused Pawan Gupta
pointed out the Munirka bus stand and a pointing out memo Ex.PW-68/I was
prepared. He also pointed the dumping spot and memo Ex.PW-68/J was
prepared in this regard.

117. On 19.12.2012, from accused Pawan Gupta, PW-80, got effected
the following recoveries:

Wrist watch Ex.P3 seized vide memo Ex.PW-68/G;

Two currency notes of denomination of Rs.500/- Ex.P-7 colly were seized
vide memo Ex.PW-68/G;

Clothes worn by the accused at the time of the incident seized vide memo
Ex.PW-68/F; and

Black coloured sweater having grey stripes with label Abercrombie and Fitch
Ex.P-68/6 and a pair of coca-cola colour pants Ex.P-68/7 colly; underwear
having elastic labeled Redzone Ex.P-68/8 and a pair of sports shoes with
Columbus inscribed on them as Ex.P-68/9.

It may be stated here that Sonata wrist watch, Ex. P3, was identified
as that of PW-1.

118. On 18.12.2012, about 1:30 p.m., accused Vinay Sharma was
arrested in front of Ravidass Mandir, Main Road, Sector-3, R.K. Puram, New
Delhi vide arrest memo Ex.PW-60/B; and his disclosure Ex.PW-60/H was also
recorded. He pointed out the Munirka bus stand from where the victims were
picked up vide memo Ex.PW-68/I and he also pointed out Mahipalpur Flyover,
the place where the victims were thrown out of the moving bus vide pointing
out memo Ex.PW-68/J. On 19.12.2012, he led to the following recoveries:
Hush Puppies shoes Ex.P-2 seized vide memo Ex.PW-68/C; and

Nokia mobile phone Ex.P-68/5 of the prosecutrix seized vide memo Ex.PW-
68/D.

Hush Puppies shoes, Ex. P2, were identified to be that of PW-1, the
informant. Nokia Mobile Phone, Ex. P-68/5, was identified to be that of
the prosecutrix.

119. On 19.12.2012, pursuant to his supplementary disclosure
statement Ex.PW-68/A, the following recoveries were made by the accused
vide seizure memo Ex.PW-68/B:

One blue coloured jeans having monogram of Expert Ex.P-68/1;

A black coloured sports jacket with white stripes and a monogram of moments
as Ex.P-68/3 and a pair of rubber slippers as Ex.P-68/4.

120. During the personal search of Vinay Sharma, the following
article was recovered:

Nokia mobile phone with IMEI No. 35413805830821418 belonging to the
accused, which was returned to him on superdari vide order dated 4-4-2013

121. On 21.12.2012, about 9:15 p.m., accused Akshay Kumar Singh @
Thakur was arrested from village Karmalahang, P.S. Tandwa, District
Aurangabad, Bihar vide memo Ex.PW-53/A and on 21.12.2012 and 22.12.2012,
his disclosures, Ex.PW-53/I and Ex.PW-53/D, respectively were recorded. On
22.12.2012, he got effected the following recoveries from the residence of
his brother, Abhay, from the rented house of one Tara Chand, village
Naharpur, Gurgaon, viz;

Blood stained jeans (Ex.P-53/3) worn by the accused at the time of the
incident, recovered from a black bag (Ex.P-53/2)

A blue black coloured Nokia mobile phone (Ex.P-53/1)

Blood-stained red coloured banian (vest).

122. On 27.12.2012, he got recovered the informant’s Metro card Ex.P-
5 and the informant’s silver ring, Ex.P-4, from House No. 1943, 3rd Floor,
Gali No.3, Rajiv Nagar, Sector-14, Gurgaon, Haryana.

123. Learned counsel for the appellants and learned amicus, Mr.
Hegde, have vehemently criticized the arrest and recoveries that have been
made or effected. It is urged by Mr. Sharma that the appellant Mukesh was
not in custody when the recovery took place and additionally, he was not
produced before the nearest Magistrate within twenty-four hours from the
time of detention. Mr. Luthra, in his turn, would submit that the said
accused was formally arrested at Delhi and, thereafter, the recovery on the
basis of his disclosure took place. Mr. Singh, learned counsel, contended
that the disclosure statements which have been recorded by the police do
tantamount to confessional statements relating to the involvement and
commission of the crime. This argument requires to be squarely dealt with.
For appreciating the said submission, it is necessary to appreciate the
inter-se relationship between the accused persons and thereafter dwell upon
the process of the arrest and judge the acceptability on the anvil of the
precedents in the field.

124. As the evidence brought on record would show, the accused
persons were known to each other. Mukesh, A-2, and deceased Ram Singh, A-1,
were brothers. According to the testimony of Dinesh Yadav, PW-81, Ram
Singh was the driver of the bus and A-3, Akshay, was working as a helper in
the bus. The same is manifest from the Attendance Register, Ex. P-81/2,
seized vide Ex. PW-80/K and the Driving License of A-1, Ram Singh, Ex. P-
74/4, seized vide Ex. PW-74/1. From the testimony of PW-13, Brijesh Gupta,
and PW-14, Jiwant Shah, it is evident that Ram Singh and Mukesh were
brothers. From the evidence of Champa Devi, DW-5, mother of Vinay, A-4, it
is quite clear that Vinay, Pawan, A-5, and Ram Singh, A-1, were known to
each other. Mukesh, in his statement under Section 313 CrPC, has admitted
that he and Ram Singh are brothers. A-3, Akshay, in his statement under
Section 313 CrPC, has admitted that he was working with Ram Singh in the
bus, Ex. P-1, as a helper. He has also admitted that he knew Ram Singh
and there had been altercation on 16.12.2012 with A-1, Ram Singh. A-5,
Pawan, in his statement under Section 313 CrPC, admitted that he was a
witness to the quarrel between A-4, Vinay, and A-1, Ram Singh. From the
aforesaid evidence, it is luminous that all the accused persons were
closely associated with each other.

125. Having dealt with this facet, we shall now proceed to meet the
criticism advanced by the learned counsel for the appellants with regard to
the recoveries and the disclosure statements that led to the discoveries.

126. Assailing the acceptability of the arrest and the disclosure
statements leading to the recoveries, Mr. Sharma and Mr. Singh have
contended that the materials brought on record cannot be taken aid of for
any purpose since the items seized have been planted at the places of
recovery and a contrived version has been projected in court. That apart,
it is submitted that the recoveries are gravely doubtful inasmuch as the
prosecution has not seized all the articles from one accused on one
occasion but on various dates. We have cleared the maze as regards the
arrest and copiously noted the manner of arrest of the accused persons and
their leading to recoveries. Be it noted, recovery is a part of
investigation and permissible under Section 27 of the Evidence Act.
However, Mr. Sharma has raised a contention that this Court should take
note of the fact that Section 27 of the Evidence Act has become a powerful
weapon in the hands of the prosecution to rope in any citizen. The said
submission, as we perceive, is quite broad and specious. It is open to the
defence to find fault with recovery and the manner in which it is done and
its relevance. It is not permissible to advance an argument that Section
27 of the Evidence Act is constantly abused by the prosecution or that it
uses the said provision as a lethal weapon against anyone it likes. In the
instant case, we have noted how the recoveries have been made and how they
have been proved by the unimpeachable testimony of the prosecution
witnesses.

127. Mr. Luthra, learned senior counsel appearing for the State, would
submit that in the present case, the material objects recovered serve as
links to corroborate and they have been used as the law permits. In this
regard, he has filed a chart which we think it appropriate to reproduce for
better appreciation of the said aspect. It is as follows:

|“S. |Accused|Time of |Place of |Voluntary|Personal Items|Recovery of |Recovery|
|No. | |Arrest |Arrest |Disclosur|Recovered |Items |of Items|
| | | | |e | |belonging to|belongin|
| | | | | | |PW1 |g to |
| | | | | | | |Prosecut|
| | | | | | | |-rix |
| 1 |Ram |4.15 |Ravi Dass |Ex. PW |T-Shirt-DNA |Partly |Debit |
| |Singh |P.M., |Camp |74/F |and brown |unburnt |Card in |
| | |17.12.12| | |colour |clothes (the|the name|
| | | | | |chappal-DNA |DNA profile |of Asha |
| | | | | |(Ex. PW-74/L) |of the |Devi |
| | | | | | |Complainant |(Ex. |
| | | | | |UNIX mobile |was found to|PW-74/H)|
| | | | | |phone with |match those | |
| | | | | |MTNL Sim |found on | |
| | | | | | |these | |
| | | | | | |clothes.) | |
| | | | | | | | |
| | | | | | |(Ex. | |
| | | | | | |PW-74/M) | |
| | | | | | | | |
| | | | | | | | |
| | | | |Pursuant | | | |
| | | | |to the | | | |
| | | | |disclosur|Iron Rods (Ex.| | |
| | | | |e |PW-74/G) | | |
| | | | |statement| | | |
| | | | |- rod |Documents of | | |
| | | | | |Bus (Ex.PW | | |
| | | | | |74/I) | | |
| | | | | | | | |
| | | | | |Bus Keys (Ex. | | |
| | | | | |PW-75/J) | | |
| | | | | | | | |
| | | | | |Bus (Ex. | | |
| | | | | |PW-74/K) | | |
|2 |Mukesh |6.30 |Apprehende|Ex.PW-60/|A green |Samsung |Samsung |
| | |P.M., |d in |I |T-shirt-DNA, a|Galaxy Duos |Galaxy |
| | |18.12.12|Karoli, | |grey pant and |(Ex.PW-58/A)|identifi|
| | | |Rajasthan | |a bluish-grey | |ed as |
| | | |formally | |jacket | |that of |
| | | |arrested | |(Ex.PW-48/B) | |PW-1 |
| | | |at | | | | |
| | | |Safdarjung| | | | |
| | | |Hospital | | | | |
|3 |Akshay |9:15 |Karmala-ha|Ex.PW53/I|Blood-Stained |Metro Card | |
| | |P.M., |ng, |AND |Jeans and |Silver Ring | |
| | |21.12.12|Tandwa, |Ex.PW53/D|Black Bag | | |
| | | |Aurangabad| |Blue Black | | |
| | | | | |coloured Nokia| | |
| | | | | |mobile phone | | |
|4 |Vinay |1:15 |In front |Ex. PW |Blue jeans, |Hush Puppies|Hush- |
| | |P.M. |of |60/H |Black Sports |Shoes |Puppies |
| | |18.12.12|Ravidass | |jacket with |(Ex. |shoes |
| | | |Mandir |Ex.PW |white stripes,|PW-68/C) |identifi|
| | | | |68/A |rubber |Nokia mobile|ed as |
| | | | | |slippers, |phone |that of |
| | | | | |black |(Ex.PW-68/D)|PW-1, |
| | | | | |full-sleeved | | |
| | | | | |t-shirt (Ex. | |Nokia |
| | | | | |PW-68/B) | |mobile |
| | | | | |Nokia mobile | |phone |
| | | | | |phone | |identifi|
| | | | | | | |ed as |
| | | | | | | |that of |
| | | | | | | |prosecut|
| | | | | | | |rix |
|5 |Pawan |1:30 |In front |Ex. PW |Black sweater |Wrist watch |Sonata |
| | |P.M., |of Ravidas|60/G |having grey |(Ex. |wrist |
| | |18.12.12|Mandir | |stripes, |PW-68/G), |watch |
| | | | | |Coca-cola |Two currency|identifi|
| | | | | |colour pants, |notes of |ed |
| | | | | |under- wear |denomination|byPW-1 |
| | | | | |having elastic|of Rs.500/- |as |
| | | | | |labeled |(says in |belongin|
| | | | | |Redzone, A |disclosure |g to him|
| | | | | |pair of sports|that he got | |
| | | | | |shoes |Rs.1000 as a| |
| | | | | |(Ex. PW-68/F) |part of the | |
| | | | | | |loot) (Ex. | |
| | | | | | |PW-68/G) | |
| | | | | | | | |

128. Having reproduced the chart, now we shall refer to certain
authorities on how a statement of disclosure is to be appreciated. In
Pulukuri Kottaya v. Emperor[50], it has been observed:
“[I]t is fallacious to treat the ‘fact discovered’ within the section as
equivalent to the object produced; the fact discovered embraces the place
from which the object is produced and the knowledge of the accused as to
this, and the information given must relate distinctly to this fact.
Information as to past user, or the past history, of the object produced is
not related to its discovery in the setting in which it is discovered.
Information supplied by a person in custody that ‘I will produce a knife
concealed in the roof of my house’ does not lead to the discovery of a
knife; knives were discovered many years ago. It leads to the discovery of
the fact that a knife is concealed in the house of the informant to his
knowledge, and if the knife is proved to have been used in the commission
of the offence, the fact discovered is very relevant. But if to the
statement the words be added ‘with which I stabbed A’, these words are
inadmissible since they do not relate to the discovery of the knife in the
house of the informant.”

129. In Delhi Administration v. Bal Krishan and others[51], the Court,
analyzing the concept, use and evidentiary value of recovered articles,
expressed thus:

“7. … Section 27 of the Evidence Act permits proof of so much of the
information which is given by persons accused of an offence when in the
custody of a police officer as relates distinctly to the fact thereby
discovered, irrespective of whether such information amounts to a
confession or not. Under Sections 25 and 26 of the Evidence Act, no
confession made to a police officer whether in custody or not can be proved
as against the accused. But Section 27 is by way of a proviso to these
sections and a statement, even by way of confession, which distinctly
relates to the fact discovered is admissible as evidence against the
accused in the circumstances stated in Section 27….”

130. In Mohd. Inayatullah v. State of Maharashtra[52], dealing with
the scope and object of Section 27 of the Evidence Act, the Court held:
“12. The expression “provided that” together with the phrase “whether it
amounts to a confession or not” show that the section is in the nature of
an exception to the preceding provisions particularly Sections 25 and 26.
It is not necessary in this case to consider if this section qualifies, to
any extent, Section 24, also. It will be seen that the first condition
necessary for bringing this section into operation is the discovery of a
fact, albeit a relevant fact, in consequence of the information received
from a person accused of an offence. The second is that the discovery of
such fact must be deposed to. The third is that at the time of the receipt
of the information the accused must be in police custody. The last but the
most important condition is that only “so much of the information” as
relates distinctly to the fact thereby discovered is admissible. The rest
of the information has to be excluded. The word “distinctly” means
“directly”, “indubitably”, “strictly”, “unmistakably”. The word has been
advisedly used to limit and define the scope of the provable information.
The phrase “distinctly relates to the fact thereby discovered” is the
linchpin of the provision. This phrase refers to that part of the
information supplied by the accused which is the direct and immediate cause
of the discovery. The reason behind this partial lifting of the ban against
confessions and statements made to the police, is that if a fact is
actually discovered in consequence of information given by the accused, it
affords some guarantee of truth of that part, and that part only, of the
information which was the clear, immediate and proximate cause of the
discovery. No such guarantee or assurance attaches to the rest of the
statement which may be indirectly or remotely related to the fact
discovered.

13. At one time it was held that the expression “fact discovered” in the
section is restricted to a physical or material fact which can be perceived
by the senses, and that it does not include a mental fact (see Sukhan v.
Crown[53]; Rex v. Ganee[54]). Now it is fairly settled that the expression
“fact discovered” includes not only the physical object produced, but also
the place from which it is produced and the knowledge of the accused as to
this (see Palukuri Kotayya v. Emperor; Udai Bhan v. State of Uttar
Pradesh[55]).

131. Analysing the earlier decisions, in Anter Singh v. State of
Rajasthan[56], the Court summed up the various requirements of Section 27
as follows:

“(1) The fact of which evidence is sought to be given must be relevant to
the issue. It must be borne in mind that the provision has nothing to do
with the question of relevancy. The relevancy of the fact discovered must
be established according to the prescriptions relating to relevancy of
other evidence connecting it with the crime in order to make the fact
discovered admissible.

(2) The fact must have been discovered.

(3) The discovery must have been in consequence of some information
received from the accused and not by the accused’s own act.

(4) The person giving the information must be accused of any offence.

(5) He must be in the custody of a police officer.

(6) The discovery of a fact in consequence of information received from an
accused in custody must be deposed to.

(7) Thereupon only that portion of the information which relates distinctly
or strictly to the fact discovered can be proved. The rest is
inadmissible.”

132. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru[57],
the Court referred to the initial prevalence of divergent views and
approaches and the same being put to rest in Pulukuri Kottaya case (supra)
which has been described as locus classicus, relying on the said
authority, observed:

“120. To a great extent the legal position has got crystallised with the
rendering of this decision. The authority of the Privy Council’s decision
has not been questioned in any of the decisions of the highest court either
in the pre-or post-independence era. Right from the 1950s, till the advent
of the new century and till date, the passages in this famous decision are
being approvingly quoted and reiterated by the Judges of this Apex Court.
Yet, there remain certain grey areas as demonstrated by the arguments
advanced on behalf of the State.”

133. Explaining the said facet, the Court proceeded to state thus:
“121. The first requisite condition for utilising Section 27 in support of
the prosecution case is that the investigating police officer should depose
that he discovered a fact in consequence of the information received from
an accused person in police custody. Thus, there must be a discovery of
fact not within the knowledge of police officer as a consequence of
information received. Of course, it is axiomatic that the information or
disclosure should be free from any element of compulsion. The next
component of Section 27 relates to the nature and extent of information
that can be proved. It is only so much of the information as relates
distinctly to the fact thereby discovered that can be proved and nothing
more. It is explicitly clarified in the section that there is no taboo
against receiving such information in evidence merely because it amounts to
a confession. At the same time, the last clause makes it clear that it is
not the confessional part that is admissible but it is only such
information or part of it, which relates distinctly to the fact discovered
by means of the information furnished. Thus, the information conveyed in
the statement to the police ought to be dissected if necessary so as to
admit only the information of the nature mentioned in the section. The
rationale behind this provision is that, if a fact is actually discovered
in consequence of the information supplied, it affords some guarantee that
the information is true and can therefore be safely allowed to be admitted
in evidence as an incriminating factor against the accused. As pointed out
by the Privy Council in Kottaya case:

“clearly the extent of the information admissible must depend on the exact
nature of the fact discovered”

and the information must distinctly relate to that fact.

Elucidating the scope of this section, the Privy Council speaking through
Sir John Beaumont said:

“Normally the section is brought into operation when a person in police
custody produces from some place of concealment some object, such as a dead
body, a weapon, or ornaments, said to be connected with the crime of which
the informant is accused.””

134. Expatriating the idea further, the Court proceeded to lay down:
“121. …. We have emphasised the word “normally” because the illustrations
given by the learned Judge are not exhaustive. The next point to be noted
is that the Privy Council rejected the argument of the counsel appearing
for the Crown that the fact discovered is the physical object produced and
that any and every information which relates distinctly to that object can
be proved. Upon this view, the information given by a person that the
weapon produced is the one used by him in the commission of the murder will
be admissible in its entirety. Such contention of the Crown’s counsel was
emphatically rejected with the following words:

“If this be the effect of Section 27, little substance would remain in the
ban imposed by the two preceding sections on confessions made to the
police, or by persons in police custody. That ban was presumably inspired
by the fear of the legislature that a person under police influence might
be induced to confess by the exercise of undue pressure. But if all that is
required to lift the ban be the inclusion in the confession of information
relating to an object subsequently produced, it seems reasonable to suppose
that the persuasive powers of the police will prove equal to the occasion,
and that in practice the ban will lose its effect.”

Then, Their Lordships proceeded to give a lucid exposition of the
expression “fact discovered” in the following passage, which is quoted time
and again by this Court:

“In Their Lordships’ view it is fallacious to treat the ‘fact discovered’
within the section as equivalent to the object produced; the fact
discovered embraces the place from which the object is produced and the
knowledge of the accused as to this, and the information given must relate
distinctly to this fact. Information as to past user, or the past history,
of the object produced is not related to its discovery in the setting in
which it is discovered. Information supplied by a person in custody that ‘I
will produce a knife concealed in the roof of my house’ does not lead to
the discovery of a knife; knives were discovered many years ago. It leads
to the discovery of the fact that a knife is concealed in the house of the
informant to his knowledge, and if the knife is proved to have been used in
the commission of the offence, the fact discovered is very relevant. But if
to the statement the words be added ‘with which I stabbed A’ these words
are inadmissible since they do not relate to the discovery of the knife in
the house of the informant.”
(emphasis supplied)

122. The approach of the Privy Council in the light of the above exposition
of law can best be understood by referring to the statement made by one of
the accused to the police officer. It reads thus:

“… About 14 days ago, I, Kottaya and people of my party lay in wait for
Sivayya and others at about sunset time at the corner of Pulipad tank. We,
all beat Beddupati China Sivayya and Subayya, to death. The remaining
persons, Pullayya, Kottaya and Narayana ran away. Dondapati Ramayya who was
in our party received blows on his hands. He had a spear in his hands. He
gave it to me then. I hid it and my stick in the rick of Venkatanarasu in
the village. I will show if you come. We did all this at the instigation of
Pulukuri Kottaya.”

The Privy Council held that:

“14. The whole of that statement except the passage ‘I hid it (a spear) and
my stick in the rick of Venkatanarasu in the village. I will show if you
come’ is inadmissible.”
(emphasis supplied)

There is another important observation at para 11 which needs to be
noticed. The Privy Council explained the probative force of the information
made admissible under Section 27 in the following words:

“Except in cases in which the possession, or concealment, of an object
constitutes the gist of the offence charged, it can seldom happen that
information relating to the discovery of a fact forms the foundation of the
prosecution case. It is only one link in the chain of proof, and the other
links must be forged in manner allowed by law.””

135. In the instant case, the recoveries made when the accused
persons were in custody have been established with certainty. The
witnesses who have deposed with regard to the recoveries have remained
absolutely unshaken and, in fact, nothing has been elicited from them to
disprove their creditworthiness. Mr. Luthra, learned senior counsel for
the State, has not placed reliance on any kind of confessional statement
made by the accused persons. He has only taken us through the statement to
show how the recoveries have taken place and how they are connected or
linked with the further investigation which matches the investigation as is
reflected from the DNA profiling and other scientific evidence. The High
Court, while analyzing the facet of Section 27 of the Evidence Act, upheld
the argument of the prosecution relying on State, Govt. of NCT of Delhi v.
Sunil and another[58], Sunil Clifford Daniel v. State of Punjab[59], Ashok
Kumar Chaudhary and others v. State of Bihar[60], and Pramod Kumar v. State
(Government of NCT of Delhi)[61].

136. On a studied scrutiny of the arrest memo, statements recorded
under Section 27 and the disclosure made in pursuance thereof, we find that
the recoveries of articles belonging to the informant and the victim from
the custody of the accused persons cannot be discarded. The recovery is
founded on the statements of disclosure. The items that have been seized
and the places from where they have been seized, as is limpid, are within
the special knowledge of the accused persons. No explanation has come on
record from the accused persons explaining as to how they had got into
possession of the said articles. What is argued before us is that the said
recoveries have really not been made from the accused persons but have been
planted by the investigating agency with them. On a reading of the
evidence of the witnesses who constituted the investigating team, we do not
notice anything in this regard. The submission, if we allow ourselves to
say so, is wholly untenable and a futile attempt to avoid the incriminating
circumstance that is against the accused persons.

Test Identification Parade and the identification in Court

137. Now, we shall deal with the various facets of test
identification parade. Upon application moved by PW-80, SI Pratibha Sharma,
Investigating Officer, PW-17, Sandeep Garg, Metropolitan Magistrate,
conducted the Test Identification Parade (TIP) for the accused Ram Singh
(since deceased), who refused to participate in the TIP proceedings on the
ground that he was shown to the witnesses in the police station. Since
accused Ram Singh died during the trial, neither the trial court nor the
High Court delved into this aspect regarding the refusal of accused Ram
Singh to participate in the TIP proceedings.

138. On 19.12.2012, PW-17, Sandeep Garg, Metropolitan Magistrate
initiated TIP proceedings for accused Vinay and Pawan, but they refused to
participate in the TIP. In the TIP proceedings, the Metropolitan
Magistrate has recorded the following:-

“…………..accused Pawan Kumar @ Kalu and accused Vinay, both refused to
participate in the TIP proceedings and stated that they had committed a
horrible crime. I recorded their refusal and gave certificate.”

139. Vinay and Pawan refused to participate in the TIP proceedings
without giving any reason whatsoever. TIP of accused Mukesh was conducted
on 20.12.2012 at Tihar Jail by PW-17, Sandeep Garg, in which PW-1, Awninder
Pratap, identified accused Mukesh. In his testimony, the informant, PW-1,
has identified his signature at point ‘A’ in TIP proceedings with respect
to the accused Mukesh, Ex.PW-1/E. The High Court has pointed out
that there was no serious challenge to the TIP proceedings of accused
Mukesh in the cross-examination of the Metropolitan Magistrate, PW-17, or
even the Investigating Officer, PW-80. TIP of accused Akshay was conducted
on 26.12.2012 at Central Jail No.4, Tihar Jail, where the informant, PW-1,
identified accused Akshay. PW-1 identified his signature at point ‘A’ in
the TIP proceedings of accused Akshay marked as Ex.PW-1/F. The accused
Mukesh and Akshay were already identified in the TIP proceedings by the
informant. Test Identification Proceedings corroborate and lend assurance
to the dock identification of accused Mukesh and Akshay by the informant,
PW-1.

140. Criticizing the TIP, it is urged by the learned counsel for the
appellants and Mr. Hegde, learned amicus curiae, that refusal to
participate may be considered as circumstance but it cannot by itself lead
to an inference of guilt. It is also argued that there is material on
record to show that the informant had the opportunity to see the accused
persons after they were arrested. It is necessary to state here that TIP
does not constitute substantive evidence. It has been held in Matru alias
Girish Chandra v. State of Uttar Pradesh[62] that identification test is
primarily meant for the purpose of helping the investigating agency with an
assurance that their progress with the investigation of an offence is
proceeding on the right lines.

141. In Santokh Singh v. Izhar Hussain and another[63], it has been
observed that the identification can only be used as corroborative of the
statement in court.

142. In Malkhansingh v. State of M.P.[64], it has been held thus:
“7. … The identification parades belong to the stage of investigation, and
there is no provision in the Code of Criminal Procedure which obliges the
investigating agency to hold, or confers a right upon the accused to claim
a test identification parade. They do not constitute substantive evidence
and these parades are essentially governed by Section 162 of the Code of
Criminal Procedure. Failure to hold a test identification parade would not
make inadmissible the evidence of identification in court. The weight to be
attached to such identification should be a matter for the courts of fact.
…”

And again:

“16. It is well settled that the substantive evidence is the evidence of
identification in court and the test identification parade provides
corroboration to the identification of the witness in court, if required.
However, what weight must be attached to the evidence of identification in
court, which is not preceded by a test identification parade, is a matter
for the courts of fact to examine. …”

143. In this context, reference to a passage from Visveswaran v.
State represented by S.D.M.[65] would be apt. It is as follows:
“11. … The identification of the accused either in test identification
parade or in Court is not a sine qua non in every case if from the
circumstances the guilt is otherwise established. Many a time, crimes are
committed under the cover of darkness when none is able to identify the
accused. The commission of a crime can be proved also by circumstantial
evidence. …”

144. In Sidhartha Vashisht alias Manu Sharma v. State (NCT of
Delhi)[66], the Court, after referring to Munshi Singh Gautam v. State of
M.P.[67], Harbhajan Singh v. State of J K[68] and Malkhansingh (supra),
came to hold that the proposition of law is quite clear that even if there
is no previous TIP, the court may appreciate the dock identification as
being above board and more than conclusive.

145. In the case at hand, the informant, apart from identifying the
accused who had made themselves available in the TIP, has also identified
all of them in Court. On a careful scrutiny of the evidence on record, we
are of the convinced opinion that it deserves acceptance. Therefore, we
hold that TIP is not dented.

Admissibility and acceptability of the dying declaration of the
prosecutrix:

146. At this stage, it would be immensely seemly to appreciate the
acceptability and reliability of the dying declaration made by the
prosecutrix.

147. The circumstances in this case, as is noticeable, makes the
prosecution bring in three dying declarations. Mr. Sharma and Mr. Singh
have been extremely critical about the manner in which they have been
recorded and have highlighted the irreconcilable facets. In quintessence,
their submission is that the three dying declarations have been contrived
and deserve to be kept out of consideration. Mr. Hegde, learned friend of
the Court, contends that the dying declarations do not inspire confidence,
for variations in them relate to the number of assailants, the description
of the bus, the identity of the accused and the overt acts committed by
them. It is contended that the three dying declarations made by the
prosecutrix vary from each other and the said variations clearly reveal the
inconsistencies and the improvements in the dying declarations mirror the
improvements that are brought about in PW-1’s statements and the progress
of the investigation.

148. The sudden appearance of the name ‘Vipin’ in the third dying
declaration after the recording of Akshay’s disclosure statement where he
mentions a person named Vipin is alleged to be indicative of the fact that
the dying declaration is, in fact, doubtful. It is contended that the
prosecution has failed to explain ‘Vipin’, his connection with the crime
and his elimination from the case. The vapourisation of Vipin has to be
considered against the backdrop of repeated assertions by the prosecution
that every word of the three dying declarations is correct, consciously
made and worthy of implicit belief. Learned senior counsel has also
submitted that apart from the inconsistencies, the numerous procedural
irregularities in the recording of the declarations make it suspicious. In
this regard, lack of an independent assessment of the mental fitness of the
prosecutrix, while recording the second dying declaration, has been
highlighted. The multiple choice questions in the third and final dying
declaration are being nomenclatured as leading questions and it is asserted
that they have not been satisfactorily explained by the prosecution.
Further, the evidence by the doctors does not cure the impropriety of lack
of an independent assessment by the SDM while recording her second dying
declaration.

149. It is submitted that if at all any dying declaration is to be
relied on, it should only be the first dying declaration made on 16.12.2012
and recorded by PW-49, Dr. Rashmi Ahuja, and the said dying declaration
only states that there were 4 to 5 persons on the bus. It is further
stated that the prosecutrix was raped by a minimum of 2 men and that she
does not remember intercourse after that. It is, therefore, unsafe to
proceed on the assumption that all six persons on the bus committed rape
upon the prosecutrix within a span of 21 minutes.

150. Keeping the aforesaid criticism in view, we proceed to analyse
the acceptability and reliability of the dying declarations. Firstly, when
the prosecutrix was brought to the Gynae Casualty about 11:15 p.m., she
gave a brief account of the incident to PW-49, Dr. Rashmi Ahuja, in her MLC
on 16.12.2012. PW-49, Dr. Rashmi Ahuja, has deposed that on the night of
16.12.2012 about 11:15 p.m., the prosecutrix was brought to the casualty by
a PCR constable and that she gave a brief history of the incident. PW-49,
Dr. Rashmi Ahuja, recorded the same in her writing in the Casualty/GRR
paper, i.e., Ex. PW-49/A.

151. In the instant case, as per the history told by the prosecutrix
to Dr. Rashmi Ahuja, it was a case of gang rape in a moving bus by 4-5
persons when the prosecutrix was returning after watching a film with her
friend. She was slapped on her face, kicked on her abdomen and bitten over
lips, cheek, breast and vulval region. She remembers intercourse two times
and rectal penetration also. She was also forced to suck their penis but
she refused. All this continued for half an hour and then she was thrown
off from the moving bus with her friend. We have already stated about the
injuries which were noted by Dr. Rashmi Ahuja in Ex.PW-49/A.

152. The relevant statement of the prosecutrix in the Medico Legal
Expert, Ex.PW49/A, reads as under:

“… she went to watch movie with her boyfriend, Awnidra: she left the movie
at 8:45 PM and was waiting for bus at Munirka Bus stop where a bus going to
Bahadurgarh, stopped and both climbed the bus at around 9 PM. At around
9:05-9:10 PM, around 4-5 people in the bus started misbehaving with the
girl, took her to the rear side of bus while her boyfriend was taken to the
front of bus, where both were beaten up badly. Her clothes were torn over
and she was beaten up, slapped repeatedly over her face, bitten over lips,
cheeks, breast and Mons veneris. She was also kicked over her abdomen
again and again. She was raped by at least minimum of two men, she does not
remember intercourse after that. She had rectal penetration. They also
forced their penis into her mouth and forced her to suck which she refused
and was beaten up instead. This continued for half hour and she was then
thrown away from the moving bus with her boyfriend. She was taken up by
PCR Van and brought to GRR. She has history of intercourse with her
boyfriend about two months back. (willfully)”

153. PW-49, Dr. Rashmi Ahuja, had noticed number of injuries on the
person of the prosecutrix and the same were noted in Ex. PW- 49/B as under:

|“Responding to verbal commands|bruise over Rt eye |
| |covering whole of the |
| |abrasion at Rt angle of |
| |eye |

|Hairs had grasses in her hairs|bruise over left nostril |
| |involving upper lip |
| |Both lips edematous |
|Her wrapping sheet soaked in |bleeding from upper lip |
|blood |present |
| |Bite mark over right |
| |chick left chick |
| |present |
|P-116/min radial feeble |Left angle of mouth |
| |injured (laceration) |
|BP 100/60 mmhg, RR 18/min |Both ears unremarkable |
|Both upper limbs unremarkable |Rt breast-bite mark below|
| |areola present |
| | |
|Left breast-bruise over Rt |A tag torn vagina hanging|
|lower introits |outside |
|Quadrant bite mark in inferior|P/S bleeding P/V ++ P/V |
| |posterior vagina wall |
| | |
|Quadrant P/A Guarding present |tear of about 7-8 cms. |
|L/E cut mark (sharp) over Rt | |
|labia | |
| | |
|L/E cut mark (sharp) over rt. |P/R Rectal tear of about |
|Labia present rest labia major|4 cm communicating with |
|aid uninora |Vagina” |

154. PW-50, Dr. Raj Kumar Chejara, and the surgery team operated the
prosecutrix in the intervening night of 16/17.12.2012 and the operative
findings have also been earlier noted.

155. PW-50, Dr. Raj Kumar Chejara, has proved the OT notes as Ex.PW-
50/A bearing the signature of Dr. Gaurav and his own note in this regard is
Ex.PW-50/B. As per his opinion, the condition of the small and large bowels
were extremely bad for any definitive repair. After performing the
operation, the patient was shifted to ICU. The first surgery was damage
control surgery and it was expected that unhealthy bowel would be there.

156. The second surgery was performed on 19.12.2012 by him along
with his operating team consisting of Prof. Sunil Kumar, Dr. Pintu and Dr.
Siddharth. From the gynaecological side, Dr. Aruna Batra and Dr. Rekha
Bharti were present along with anaesthetic team. The findings were as
under:

“Abdominal findings:

Rectum was longtitudinally torn on anterior aspect in continuation with
perineal tear. This tear was continuing upward involving sigmoid colon,
descending colon which was splayed open. The margin were edematous. There
were multiple longitudinal tear in the mucosa of recto sigmoid area.
Transverse colon was also torn and gangrenous. Hepatic flexture, ascending
colon caecum were gangrenous with multiple perforations at many places.
Terminal ileum approximately one and a half feet loosely hanging in the
abdominal cavity, it was avulsed from its mesentry and was non-viable.
Rest of the small bowel was non-existent with only patches of mucosa at
places and borders of the mesentry was contused. The contused mesentry
borders initially appeared (during 1st surgery) as contused small bowel.

Jejunostomy stoma was gangrenous for approximately 2cm.

Stomach and duodenum was distended but healthy.”

157. Dying Declaration was recorded by SDM, Smt. Usha Chaturvedi, PW-
27, on 21.12.2012. The medical record of the prosecutrix shows that the
prosecutrix was not found fit for recording of her statement until 21st
December, 2012 about 6:00 p.m. when the prosecutrix was declared fit for
recording statement by PW-52, Dr. P.K Verma. PW-52 had examined the
prosecutrix and found her to be fit, conscious, oriented and meaningfully
communicative for making statement vide his endorsement at point ‘A’ on
application, Ex.PW-27/DB. The second dying declaration, Ex.PW-27/A, was
recorded by PW-27, Smt. Usha Chaturvedi, SDM. This dying declaration is an
elaborate one where the prosecutrix has described the incident in detail
including the act of insertion of rod in her private parts. She also stated
that the accused were addressing each other with names like,“Ram Singh,
Thakur, Raju, Mukesh, Pawan and Vinay”.

158. The relevant portion of the dying declaration
Ex. PW-27/A recorded by PW-27, SDM, is extracted below:
“Q.1. What is your name, your father’s name and your residential address?

Ans. My name is prosecutrix and my father name is Sh. ………. and we reside at
……………..

Q.2 Do you study or work some where?

Ans. I have completed my BPT (Bachelor of Physiotherapy).

Q.3 On which date and place, the incident occurred?

Ans. This happened on 16.12.12 in the midst of at about 9:00-9:15 p.m.

Q.4 Where had you gone on that day and how did you reach the place of
occurrence?

Ans. I had gone to watch the movie i.e. “Life of Pi” 6.40-8.30 p.m. to
Select City Mall, Saket on the day of incident along with my friend Sh.
Awninder S/o. Sh. Bhanu Pratap, R/o House No.14, Bair Sarai, New Delhi-16.
We took an Auto Rikshaw from there and reached Munirka.

Q.5 How did you go further?

Ans. After that, I saw white colored bus whose conductor had been calling
the passengers of Palam Mor and Dwarka. I had to go to Dwarka, Sec-1. That
is why both of us, I and my friend boarded the bus and gave twenty rupees
(Rs. 20/-) at the fare of Rs.10/- per passenger.

Q.6. Were there passengers inside the bus?

Ans. When I entered the bus there were 6-7 passengers. Assuming them to
be passenger, we sat outside the cabin of the bus.

Q.7 Provide the detailed information about the bus?

Ans. The bus was of the white colour and the seats were of the red colour.
Yellow coloured curtains were fixed. The glasses of the bus were black and
were closed. I could see outside from inside but nothing could be seen
inside from outside. In one row of the bus there were two seats and in the
other row, there were three seats.

Q,8 After entering the bus, did you suspect anything seeing the people
occupying the seats there?

Ans. I had suspected (something amiss) but the conductor had already taken
the (fare) money and the bus had started. So, I kept sitting there.

Q.9 What did happen afterwards? Please inform in detail.

Ans. After five minutes when the bus climbed the bridge of Malai Mandir,
the Conductor closed the door of the bus and switched off the light inside
the bus. And they came to my friend and started hitting and beating him.
Three four (3-4) people caught hold of him and the remaining people dragged
me to the rear portion of the bus and tore off my clothes and took turns to
rape me. They hit me on my stomach with an iron rod and bit me on my whole
body. Prior to that, they snatched from me and my friend all our articles
i.e. mobile phone, purse, credit card, debit card, watches, etc. All six of
the persons committed oral, vaginal, anal rape on me. These people inserted
the iron rod into my body through my vagina and rectum and also pulled it
out. They extracted the internal private part of my body through inserting
hand and iron rod into my private parts and caused hurt to me. Six persons
kept committing rape on me for approximately one hour by turns. The drivers
kept changing in the moving bus so that they can rape me.
…….

PW-27 Usha Chaturvedi, SDM, when examined and recorded the dying
declaration of prosecutrix come off in her dying declaration she state as
under:”

159. The clinical notes, Ex.PW-50/C, and notes prepared by the
gynaecology team were proved as Ex.PW-50/D. The gynaecological notes were
prepared on actual examination of the patient on the operation table during
the surgery. PW-50 further operated the prosecutrix on 23.12.2012 for
peritoneal lavage and placement of drain under general anaesthesia and his
notes are Ex.PW-50/E.

160. Statement of the prosecutrix was recorded by PW-30, Pawan
Kumar, Metropolitan Magistrate, vide Ex.PW-30/D. On 24.12.2012, an
application for recording the statement of the prosecutrix under Section
164 CrPC was moved by the Investigating Officer, which is exhibited as
Ex.PW-30/A and, thereafter, the learned Metropolitan Magistrate fixed the
date for recording of the statement as 25.12.2012 at 9:00 a.m. at
Safdarjung Hospital vide his endorsement at Point “P” to “P-1” on Ex. PW-
30/A. On 25.12.2012, PW-28, Dr. Rajesh Rastogi, at 12:40 p.m., declared the
prosecutrix fit for recording statement through gestures. She was found
conscious, oriented, co-operative, comfortable and meaningfully
communicative to make a statement through non-verbal gestures.

161. On 25.12.2012, the prosecutrix’s statement,
Ex.PW-30/D, under Section 164 CrPC was recorded by PW-30, Pawan Kumar,
Metropolitan Magistrate, in the form of questions by putting her multiple
choice questions. This statement was made through gestures and writings.
The statement recorded by PW-30 which ultimately became another dying
declaration reads as under:

“25/12/2012 at 01.00 p.m. at ICU Safdarjung Hospital. Statement of
Prosecutrix (Name and Particulars withheld) As opined by the attending
doctors the Prosecutrix is not in position to speak but she is otherwise
conscious and oriented and responding by way of gestures, so I am putting
question in such a manner so as to enable to narrate the incident by way of
gesture or writing.

Ques. : When and at what time the incident happened?

1. 20/12/2012 2. 13/12/2012 3. 16/12/2012

Ans : 16/12/12 (by writing after taking time)

Ques.: Have you seen the staff of the bus?

1. Yes 2. No

Ans.: 1 yes by gesture (nodding her head)

Ques.: Have you seen those people at that time?

1. Yes 2. No

Ans.: 1

Ques.: By which article they have given beatings? (answer by writing)

Ans.: By iron rod which was long.

Ques.: What happened of your belongings means mobile etc.?

1. Fell down 2. Snatched by them 3. Don‘t know

Ans.: 2

Ques.: Besides rape where and how did you get the injuries? (tried to
answer by writing)

Ans.: Head, face, back, whole body including genital parts (by gesture
indication)

Ques.: By which names they were addressing to each other? (tried answer by
writing)

Ans.: 1. Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju.

Ques.: What did they do after rape?

Left at home 2. Threw at unknown place 3. Got down at some other bus stop.

Ans: 2”

As per Ex. PW-30/D, this answer was written by the prosecutrix in her own
hand.

162. On 26.12.2012, the condition of the prosecutrix was examined
and it was decided to shift her abroad for further treatment. Notes in this
regard are Ex.PW-50/F bearing the signatures of Dr. Raj Kumar, Dr. Sunil
Kumar, Dr. Aruna Batra and Dr. P.K. Verma.

163. The prosecutrix died at Mount Elizabeth Hospital, Singapore on
29.12.2012 at 4:45 a.m. The cause of death is stated as sepsis with multi
organ failure following multiple injuries, as is evincible from Ex.PW-34/A.

164. Learned counsel for the appellants have objected to the
admissibility of the dying declarations available on record mainly on the
ground that they are not voluntary but tutored. It is argued that the
second and third dying declarations are nothing but a product of tutoring
and are non-voluntary and the only statement recorded is the MLC, Ex.PW49/A
and Ex. PW49/B, prepared immediately after the incident, wherein the
prosecutrix has neither named any of the accused nor mentioned the factum
of iron rod being used by the accused persons and the act of the accused in
committing unnatural offence. It is further alleged that the prosecutrix
could not have given such a lengthy dying declaration running upto four
pages on 21.12.2012 as she was on oxygen support. PW-27 has deposed that
the prosecutrix was on oxygen support at the time of recording the second
dying declaration. It is further contended that it must be taken into
account that ever since the prosecutrix was admitted to the hospital, she
was continuously on morphine and, thus, she could not have gained
consciousness. The second dying declaration has been further assailed on
the ground of being recorded at the behest of SDM, PW-27, instead of a
Magistrate and that too after a delay of nearly four days. The third dying
declaration, Ex.PW-30/D, recorded by the Metropolitan Magistrate, PW-30, on
25.12.2012 through gestures and writings is controverted by putting forth
the allegations of false medical fitness certificate and absence of
videography.

165. Another argument advanced by the lerned counsel raising
suspicion on the genuineness of the second and third dying declarations is
that the dates on which the dying declarations were recorded have been
manipulated. The counsel asseverated that the second dying declaration,
i.e., Ex.PW-27/A, purported to have been recorded by PW-27 on
21.12.2012 was, in fact, recorded on the previous day as evidenced from the
overwriting of the date in Ex. PW-27/B. The counsel also
pointed to the overwriting of the date in the third dying declaration,
i.e., Ex. PW-30/C, recorded by PW-30. It is propounded by them that the
date was modified thrice in order to fit in the fake chain of circumstances
contrived by the prosecution.

166. Resisting the said submissions, Mr. Luthra, learned senior
counsel for the State, astutely contended that all the three dying
declarations recorded at the instance of the prosecutrix are consistent and
well corroborated by medical evidence as well as by PW-1’s testimony, and
other scientific evidence. The prosecutrix’s first statement, Ex. PW-49/A,
given to PW-49 was only a brief account of the heinous act committed on her
and in that state of shock, nothing more could be legitimately expected of
her. Only after receiving medical attention, she was declared fit to
record statement and on 21.12.2012, PW-52 had examined the prosecutrix and
found her to be fit, conscious, oriented and meaningfully communicative for
making statement vide his endorsement at point ‘A’ on application Ex.PW-
27/DB. PW-27, Smt. Usha Chaturvedi, SDM, recorded her statement in which
the prosecutrix described the incident in detail and also named the accused
persons. In fact, PW-27 has also deposed before the court that the
prosecutrix was in a fit mental condition to give the statement on
21.12.2012. Moreover, the prosecutrix’s third statement, Ex.PW-30/D, which
was recorded in question-answer form through gestures and writings by PW-
30, Pawan Kumar, Metropolitan Magistrate, is consistent with the earlier
two dying declarations and that adds to the credibility and conclusively
establishes reliability.

167. In the first dying declaration made to PW-49,
Dr. Rashmi Ahuja, recorded in Ex.PW-49/A and in MLC, Ex.PW-49/B, due to
her medical condition, though the prosecutrix broadly described the
incident of gang rape committed on her and injuries caused to her and PW-1,
yet she failed to vividly describe the incident of inserting iron rod, etc.
As soon as the prosecutrix was brought to the hospital, she gave a brief
description of the incident to PW-49, Dr. Rashmi Ahuja. As it appears from
the record, the prosecutrix had lost sufficient quantity of blood due to
which she was drowsy and could only give a brief account of the incident
and injuries caused to her and the informant. Even though the prosecutrix
has given only a brief account of the occurrence, yet she was responding to
verbal command and hence, the same is natural and trustworthy and
furthermore, Ex. PW-49/A is also consistent with the other dying
declarations.

168. By virtue of the second dying declaration recorded as Ex.PW-
27/A on 21.12.2012 about 9:10 p.m. by the SDM, Smt. Usha Chaturvedi, the
exact details of the incident and the injuries caused to the prosecutrix
have come on record. The learned SDM has satisfied herself that the
prosecutrix was fit to make the statement. While recording the dying
declaration of the prosecutrix, Ex.PW-27/A, Dr. P.K Verma, PW-52, had found
her conscious, oriented and meaningfully communicative vide his endorsement
at point ‘A’ on the application, Ex.PW-27/DB. It was only thereafter that
PW-27, Smt. Usha Chaturvedi, SDM, recorded the statement, Ex.PW-27/A, of
the prosecutrix. The prosecutrix not only signed it but even wrote the date
and time in this statement. She narrated the entire incident specifying the
role of each accused; gang rape/unnatural sex committed upon her; the
injuries caused in her vagina and rectum by use of iron rod and by
inserting of hands by the accused; description of the bus, robbery and
lastly throwing of both the victims out of the moving bus, Ex.P1, in naked
condition at the footfall of Mahipalpur flyover.

169. As it appears from the record, PW-27, after recording the
statement of the prosecutrix, as contained in Ex.PW-27/A, forwarded the
statement alongwith the forwarding letter, Ex. PW-27/B, to the ACP, Vasant
Vihar undersigned by herself. Ex. PW-27/A, which contains the statement of
the prosecutrix, is duly signed by the prosecutrix on all the pages and
also signed by PW-27, SDM. PW-27 has certified in Ex.PW-27/A that the
signature of the prosecutrix was obtained in her presence at 9:00 p.m. on
21.12.2012 after which she has signed the same. No overwriting of date is
evidenced in Ex.PW-27/A. However, so far as the forwarding letter, i.e.,
Ex.PW-27/B, is concerned, the date mentioned by PW-27 after putting her
signature is overwritten as 21.12.2012. When cross-examined on this aspect,
PW-27 has stated that she had herself overwritten the date and, thus,
overruled the possibility of any falsification of the document at the
behest of the investigating team. PW-27 explained the overwriting of date
as a ‘human error’ and the same has been rightly construed by the trial
court and accepted by the High Court as a complete explanation. The
relevant statement of PW-27 is as under:

“It is correct that in Ex.PW27/B there is an over writing on the date under
my signature. VOL: It was a human error. The statement was recorded on 21-
12-2012, so for all purpose this date will be 21-12-2012.”

170. Agian on 25.12.2012 on an application, Ex.PW-28/A,
though Dr. P.K Verma, PW-52, opined that the prosecutrix was unable to
speak as she was having endotracheal tube, i.e, in larynx and trachea and
was on ventilator, yet PW-28, Dr. Rajesh Rastogi, declared her to be
conscious, oriented and meaningfully communicative through non-verbal
gestures and fit to give statement. PW-30, Pawan Kumar, Metropolitan
Magistrate, also satisfied himself qua fitness and ability of the
prosecutrix to give rational answers by gestures to his multiple choice
questions. The opinion of the doctors obtained prior to recording of the
statements, Ex.PW-27/A and Ex.PW-30/D-1, as also the observations made by
the SDM and Metropolitan Magistrate qua her fitness cannot be disregarded
completely on the basis of surmises of the learned counsel for the
appellants.

171. Adverting to the third dying declaration, Ex.PW-30/C, we are
able to appreciate that PW-30, after recording the statement of the
prosecutrix, has signed the document. The date mentioned therein is
overwritten as 25.12.2012. However, in the forwarding note to the
investigating officer which is contained in continuation of the
prosecutrix’s statement annexed as Ex. PW-30/C, the signature and date
mentioned by PW-30 is very clear and no overwriting is visible. Be it
noted, PW-30 was never cross-examined on the aspect of overwriting of the
date in Ex.PW-30/C. The learned counsel has, for the first time, raised
this issue before us merely to substantiate his suspicion of manipulation
on the part of the prosecution. We hold that pointing at insignificant
errors is inconsequential so far as cogent evidence produced by the
prosecution stand on a terra firma. It is beyond human prudence to discard
the detailed and well signed statements of the prosecutrix, in spite of
clear date put by herself, merely because PW-30 erred at one point of time
in correctly recording the date. Moreover, the testimony of PW-52, Dr. P.K.
Verma, who was incharge of the ICU and in whose supervision the entire
treatment and recording of statements by the prosecutrix was done, cannot
be discarded on account of meagre technical errors.

172. Another line of argument developed by the learned counsel is
that there has been failure on the part of the prosecutrix to disclose the
names of any of the accused persons in the brief history given by her to
the doctor in MLC, Ex.PW-49/A, and so, her dying declarations, Ex.PW-27/A
and Ex.PW-30/D-1, where she had given the names of the accused persons, are
tutored versions and cannot form the basis of conviction. This argument,
however, is completely unjustified in the light of the medical condition of
the prosecutrix when she was brought to the hospital. As per the records,
the prosecutrix was brought to the hospital in a state of sub-consciousness
and sheer trauma. In her MLC, Ex.PW-49/B, her condition is described as
drowsy responding only to verbal commands and hence, not completely alert
due to the shock and excessive loss of blood. The prosecutrix was declared
fit to make statements, Ex.PW-27/A and Ex.PW-30/D-1, only when she was
operated thrice. Her dying declarations, Ex.PW-27/A and Ex.PW-30/D-1, also
stand corroborated by the medical evidence as well as the testimony of PW-

1.

173. A dying declaration is an important piece of evidence which, if
found veracious and voluntary by the court, could be the sole basis for
conviction. If a dying declaration is found to be voluntary and made in fit
mental condition, it can be relied upon even without any corroboration.
However, the court, while admitting a dying declaration, must be vigilant
towards the need for ‘Compos Mentis Certificate’ from a doctor as well as
the absence of any kind of tutoring. In Laxman v. State of Maharashtra[69],
the law relating to dying declaration was succinctly put in the following
words:

“3. … A dying declaration can be oral or in writing and any adequate method
of communication whether by words or by signs or otherwise will suffice
provided the indication is positive and definite. In most cases, however,
such statements are made orally before death ensues and is reduced to
writing by someone like a Magistrate or a doctor or a police officer. When
it is recorded, no oath is necessary nor is the presence of a Magistrate
absolutely necessary, although to assure authenticity it is usual to call a
Magistrate, if available for recording the statement of a man about to die.
There is no requirement of law that a dying declaration must necessarily be
made to a Magistrate and when such statement is recorded by a Magistrate
there is no specified statutory form for such recording. Consequently, what
evidential value or weight has to be attached to such statement necessarily
depends on the facts and circumstances of each particular case. What is
essentially required is that the person who records a dying declaration
must be satisfied that the deceased was in a fit state of mind. Where it is
proved by the testimony of the Magistrate that the declarant was fit to
make the statement even without examination by the doctor the declaration
can be acted upon provided the court ultimately holds the same to be
voluntary and truthful. A certification by the doctor is essentially a rule
of caution and therefore the voluntary and truthful nature of the
declaration can be established otherwise.”

174. The legal position regarding the admissibility of a dying
declaration is settled by this Court in several judgments. This Court, in
Atbir v. Government of NCT of Delhi[70], taking into consideration the
earlier judgment of this Court in Paniben v. State of Gujarat[71] and
another judgment of this Court in Panneerselvam v. State of Tamil Nadu[72],
has exhaustively laid down the following guidelines with respect to the
admissibility of dying declaration:

“22. (i) Dying declaration can be the sole basis of conviction if it
inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of
mind at the time of making the statement and that it was not the result of
tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and
voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is merely a rule of
prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon
without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased
was unconscious and could never make any statement cannot form the basis of
conviction.

(vii) Merely because a dying declaration does not contain all the details
as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and
conscious state to make the dying declaration, medical opinion cannot
prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and
free from any effort to induce the deceased to make a false statement and
if it is coherent and consistent, there shall be no legal impediment to
make it the basis of conviction, even if there is no corroboration.”

175. It is well settled that dying declaration can form the sole
basis of conviction provided that it is free from infirmities and satisfies
various other tests. In a case where there are more than one dying
declaration, if some inconsistencies are noticed between one and the other,
the court has to examine the nature of inconsistencies as to whether they
are material or not. The court has to examine the contents of the dying
declarations in the light of the various surrounding facts and
circumstances. In Shudhakar v. State of Madhya Pradesh[73], this Court,
after referring to the landmark decisions in Laxman (supra) and Chirra
Shivraj v. State of Andhra Pradesh[74], has dealt with the issues arising
out of multiple dying declarations and has gone to the extent of declining
the first dying declaration and accepting the subsequent dying
declarations. The Court found that the first dying declaration was not
voluntary and not made by free will of the deceased; and the second and
third dying declarations were voluntary and duly corroborated by other
prosecution witnesses and medical evidence. In the said case, the accused
was married to the deceased whom he set ablaze by pouring kerosene in the
matrimonial house itself. The smoke arising from the house attracted the
neighbours who rushed the victim to the hospital where she recorded three
statements before dying. In her first statement given to the Naib
Tehsildar, she did not implicate her husband, but in the second and third
statements, which were also recorded on the same day, she clearly stated
that the accused poured kerosene on her and set her on fire. The accused
was convicted under Section 302 IPC. In this regard, the Court made the
following observations:

“21. Having referred to the law relating to dying declaration, now we may
examine the issue that in cases involving multiple dying declarations made
by the deceased, which of the various dying declarations should be believed
by the court and what are the principles governing such determination. This
becomes important where the multiple dying declarations made by the
deceased are either contradictory or are at variance with each other to a
large extent. The test of common prudence would be to first examine which
of the dying declarations is corroborated by other prosecution evidence.
Further, the attendant circumstances, the condition of the deceased at the
relevant time, the medical evidence, the voluntariness and genuineness of
the statement made by the deceased, physical and mental fitness of the
deceased and possibility of the deceased being tutored are some of the
factors which would guide the exercise of judicial discretion by the court
in such matters.”

176. Recently, a two-Judge Bench of this Court in Sandeep and
another v. State of Haryana[75] was faced with a similar situation where
the first dying declaration given to a police officer was more elaborate
and the subsequent dying declaration recorded by the Judicial Magistrate
lacked certain information given earlier. After referring to the two dying
declarations, this Court examined whether there was any inconsistency
between the two dying declarations. After examining the contents of the two
dying declarations, this Court held that there was no inconsistency between
the two dying declarations and non-mention of certain features in the dying
declaration recorded by the Judicial Magistrate does not make both the
dying declarations incompatible.

177. In this regard, it will be useful to reproduce a passage from
Babulal and others v. State of M.P.[76] wherein the value of dying
declaration in evidence has been stated:

“7. … A person who is facing imminent death, with even a shadow of
continuing in this world practically non-existent, every motive of
falsehood is obliterated. The mind gets altered by most powerful ethical
reasons to speak only the truth. Great solemnity and sanctity is attached
to the words of a dying person because a person on the verge of death is
not likely to tell lies or to concoct a case so as to implicate an innocent
person. The maxim is “a man will not meet his Maker with a lie in his
mouth” (nemo moriturus praesumitur mentire). Mathew Arnold said, “truth
sits on the lips of a dying man”. The general principle on which the
species of evidence is admitted is that they are declarations made in
extremity, when the party is at the point of death, and when every hope of
this world is gone, when every motive to falsehood is silenced and mind
induced by the most powerful consideration to speak the truth; situation so
solemn that law considers the same as creating an obligation equal to that
which is imposed by a positive oath administered in a court of justice. …”

178. Dealing with oral dying declaration, a two-Judge Bench in
Prakash and another v. State of Madhya Pradesh[77] has ruled thus:
“11. … In the ordinary course, the members of the family including the
father were expected to ask the victim the names of the assailants at the
first opportunity and if the victim was in a position to communicate, it is
reasonably expected that he would give the names of the assailants if he
had recognised the assailants. In the instant case there is no occasion to
hold that the deceased was not in a position to identify the assailants
because it is nobody’s case that the deceased did not know the accused
persons. It is therefore quite likely that on being asked the deceased
would name the assailants. In the facts and circumstances of the case the
High Court has accepted the dying declaration and we do not think that such
a finding is perverse and requires to be interfered with. …”

179. In Vijay Pal v. State (Government of NCT of Delhi)[78], after
referring to the Constitution Bench decision in Laxman (supra) and the two-
Judge Bench decisions in Babulal (supra) and Prakash (supra), the Court
held:

“22. Thus, the law is quite clear that if the dying declaration is
absolutely credible and nothing is brought on record that the deceased was
in such a condition, he or she could not have made a dying declaration to a
witness, there is no justification to discard the same. In the instant
case, PW 1 had immediately rushed to the house of the deceased and she had
told him that her husband had poured kerosene on her. The plea taken by the
appellant that he has been falsely implicated because his money was
deposited with the in-laws and they were not inclined to return, does not
also really breathe the truth, for there is even no suggestion to that
effect.

23. It is contended by the learned counsel for the appellant that when the
deceased sustained 100% burn injuries, she could not have made any
statement to her brother. In this regard, we may profitably refer to the
decision in Mafabhai Nagarbhai Raval v. State of Gujarat[79] wherein it has
been held that a person suffering 99% burn injuries could be deemed capable
enough for the purpose of making a dying declaration. The Court in the said
case opined that unless there existed some inherent and apparent defect,
the trial court should not have substituted its opinion for that of the
doctor. In the light of the facts of the case, the dying declaration was
found to be worthy of reliance.

24. In State of M.P. v. Dal Singh[80], a two-Judge Bench placed reliance on
the dying declaration of the deceased who had suffered 100% burn injuries
on the ground that the dying declaration was found to be credible.”

180. In the case at hand, the first statement of the prosecutrix was
recorded by PW-49, Dr. Rashmi Ahuja, on the night of 16.12.2012 and the
second statement was recorded by the SDM on 21.12.2012 after a delay of
five days. In the present facts and circumstances of the case, we do not
find that there is any inconsistency in the dying declarations to raise
suspicion as to the genuinity and voluntariness of the subsequent dying
declarations. The prosecutrix had been under constant medical attention and
was reported to be fit for giving a statement on 21.12.2012 only. On the
night of the incident itself, she underwent first surgery conducted by PW-
50, Dr. Raj Kumar Chejara, Surgical Specialist, Department of Surgery,
Safdarjung Hospital, New Delhi and his surgery team comprising of himself,
Dr. Gaurav and Dr. Piyush, and the prosecutrix was shifted to ICU. The
second surgery was performed on her on 19.12.2012. Ex.PW-50/C, OT notes
dated 19.12.2012 show that the prosecutrix was put on ventilation after the
surgery. Considering the facts and circumstances and the law laid down
above, a mere omission on the part of the prosecutrix to state the entire
factual details of the incident in her very first statement does not make
her subsequent statements unworthy, especially when her statements are duly
corroborated by other prosecution witnesses including the medical evidence.

181. The contention that no dying declaration could have been
recorded on 21.12.2012 as the prosecutrix was administered morphine does
not hold good as PW-52, Dr. P.K. Verma, has deposed that morphine was
injected at 6:00 p.m. on 20.12.2012 and its effect would have lasted for
only 3-4 hours. PW-52 has denied that the prosecutrix was unconscious and
had difficulty in breathing at the time when she made the statement to PW-
27, SDM, on 21.12.2012.

182. Yet another objection raised by the the learned counsel for the
appellants concerning the medical fitness of the prosecutrix, while
recording the third dying declaration is that when PW-30, Metropolitan
Magistrate, Pawan Kumar, recorded the dying declaration of the prosecutrix,
she was not in a position to speak as per the endorsement made by PW-52,
Dr. P.K. Verma, and, therefore, no weight could be attached to the dying
declaration recorded by PW-30. In this regard, reliance is placed
upon Ex.PW-30/B1. This contention was raised before the High Court as well
as the trial court and while considering the contention, we find that:

“On 25.12.2012, application [Ex.PW-30/B] moved by P.W.-80 S.I. Pratibha
Sharma between 9:30 a.m. to 10:00 a.m. seeking opinion regarding fitness of
prosecutrix to get statement recorded. Pw-52 Dr. P.K. Verma examined the
prosecutrix and opined at 12:35 p.m. that “patient has endotracheal tube in
place (i.e. in her larynx and trachea) and was on ventilator and hence she
could not speak”.

183. PW-28, Dr. Rajesh Rastogi, opined vide Ex.PW-28/A at 12:40 p.m.
on 25.12.2012 that the prosecutrix was conscious, cooperative, meaningfully
communicative through non-verbal gestures, oriented and fit to give
statement. PW-28, Dr. Rajesh Rastogi, examined the prosecutrix around 12
noon and finished it by 12:00-12:30 p.m. On 25.12.2012 at 12:35 p.m., Dr.
P.K. Verma had endorsed on the document Exhibit PW-30/B that the victim
could not speak as she had endotracheal tube in place (that is, in larynx
and trachea) and was on ventilator. However, subsequently, at 12:40 p.m. on
the same day, PW-28, Dr. Rajesh Rastogi, had endorsed on the said document,
Ex.PW-30/B, to the effect that the victim was conscious, cooperative,
meaningfully communicative, oriented, responding through non-verbal
gestures and fit to give statement. The learned counsel contended that it
is inconceivable that the prosecutrix who was on life support system at
12:35 p.m. could be opined to be conscious, cooperative and fit to give
statement within five minutes, i.e., at 12:40 p.m.

184. The said contention, as we find, has been appropriately dealt
with by both courts below by adverting to the depositions of PW-52, Dr.
P.K. Verma, and PW-28, Dr. Rajesh Rastogi. Regarding the fit mental
condition of the prosecutrix and as to the different endorsements made by
PW-52, Dr. P.K. Verma, and PW-28, Rajesh Rastogi, PW-52 was questioned
suggesting that the prosecutrix was not in a fit mental condition to give
the dying declaration. PW-52 has clearly deposed in his cross-examination
that he had never endorsed that the victim was unfit to give statement at
12:35 p.m., rather he had said that she was on ventilator and hence, could
not speak. The aforesaid explanation of PW-52, Dr. P.K. Verma, who was
incharge of the ICU in Safdarjung Hospital at the relevant time makes it
limpid that even though the prosecutrix was not able to speak, yet she was
conscious and oriented and was in a position to make the statement by
gestures.

185. The contention that the third dying declaration made through
gestures lacks credibility and that the same ought to have been
videographed, in our view, is totally sans substance. The dying declaration
recorded on the basis of nods and gestures is not only admissible but also
possesses evidentiary value, the extent of which shall depend upon who
recorded the statement. In the instant case, the dying declaration was
recorded by PW-30, Mr. Pawan Kumar, Metropolitan Magistrate. A perusal of
the questions and the simple answers by way of multiple choice put to the
prosecutrix is manifest of the fact that those questions and answers were
absolutely simple, effective and indispensable. The dying declaration
recorded by PW-30, Ex.PW-30/D, though by nods and gestures and writings,
inspires confidence and has been rightly relied upon by the trial Court as
well as the High Court. Videography of the dying declaration is only a
measure of caution and in case it is not taken care of, the effect of it
would not be fatal for the case and does not, in any circumstance, compel
the court to completely discard that particular dying declaration.

186. In Meesala Ramakrishan v. State of A.P.[81], this Court, while
admitting the dying declaration made through gestures, made the following
observations:

“20. … that dying declaration recorded on the basis of nods and gestures
is not only admissible but possesses evidentiary value, the extent of which
shall depend upon who recorded the statement, what is his educational
attainment, what gestures and nods were made, what were the questions asked
— whether they were simple or complicated — and how effective or
understandable the nods and gestures were.”

187. In B. Shashikala v. State of A.P.[82], it was observed that:
“13. The evidence of PW 8 is absolutely clear and unambiguous as regards
the manner in which he recorded the statement of the deceased with the help
of PW 4. It is also evident that he also has knowledge of Hindi although he
may not be able to read and write or speak in the said language. His
evidence also shows that he has taken all precautions and care while
recording the statement. Furthermore, he had the opportunity of recording
the statement of the deceased upon noticing her gesture. The court in a
situation of this nature is also entitled to take into consideration the
circumstances which were prevailing at the time of recording the statement
of the deceased.”

188. Appreciating the third dying declaration recorded on the basis
of gestures, nods and writings on the base of aforesaid pronouncements, we
have no hesitation in holding that the dying declaration made through
signs, gestures or by nods are admissible as evidence, if proper care was
taken at the time of recording the statement. The only caution the court
ought to take is that the person recording the dying declaration is able to
notice correctly as to what the declarant means by answering by gestures or
nods. In the present case, this caution was aptly taken, as the person who
recorded the prosecutrix’s dying declaration was the Metropolitan
Magistrate and he was satisfied himself as regards the mental alertness and
fitness of the prosecutrix, and recorded the dying declaration of the
prosecutrix by noticing her gestures and by her own writings.

189. Considering the facts and circumstances of the present case and
upon appreciation of the evidence and the material on record, in our view,
all the three dying declarations are consistent with each other and well
corroborated with other evidence and the trial court as well as the High
Court has correctly placed reliance upon the dying declarations of the
prosecutrix to record the conviction.

Insertion of the iron rod:

190. Presently, we shall advert to the contentions raised as regards
the use of iron rod for causing recto-vaginal injury. The case of the
prosecution is that the accused, in most inhumane and unfeeling manner,
inserted iron rod in the rectum and vagina of the prosecutrix and took out
the internal organs of the prosecutrix from the vaginal and anal opening
while pulling out the said iron rod. They also took out the internal
organs of the prosecutrix by inserting iron rod in the vagina of the
prosecutrix thereby causing dangerous injuries. Two iron rods, Ex.P-49/1
and Ex.P-49/2, were recovered vide seizure memo Ex.PW-74/G by the
Investigating Officer, PW-80, at the instance of accused Ram Singh (since
deceased). As per Ex.PW-49/A, the internal injuries sustained by the
victim were like vaginal tear, profused bleeding from vagina, rectal tear
communicating with vaginal tear and other injuries.

191. PW-50, Dr. Raj Kumar Chejara, and the surgery team operated the
prosecutrix in the intervening night of 16/17.12.2012 and the operative
findings are as under:

collection of around 500ml of blood in peritoneal cavity
stomach pale,
duodenum contused
jejunum contused bruised at whole of the length and lacerated
transected at many places. First transaction was 5cm away from DJ
junction. Second one was 2 feet from the DJ, after that there was
transaction and laceration at many places. Jejunal loop was of doubtful
viability. Lieum – whole lieum was totally contused and it was of doubtful
viability. Distanl lieum was completely detached from the mesentry till ICJ
(ileocaecal junction). It was completely devascularized.
Large bowel was also contused, bruised and of doubtful viability.
Descending colon was lacerated vertically downward in such a manner that it
was completely opened.

Sigmoid colon rectum was lacerated at many places. Linearlyu, mucosa was
detached completely at places, a portion of it around 10cm was prolapsing
through perineal wound.

Liver and spleen was normal.

Both sides retro peritoneal (posterior wall of the abdomen) haematoma
present.

Mesentry and omentum was totally contused and bruised.
Vaginal tear present, recto vaginal septum was completely torn.

192. PW-80, SI Pratibha Sharma, the Investigating Officer, deposed
before the trial court that accused Ram Singh had led her inside the bus,
Ex.P1 and had taken out two iron rods from the shelf of the driver’s cabin.
One of the rods, 59 cm in length, was primarily used for changing
punctured tyres; it was hooked from one end and chiseled from the other.
It also had multiple serrations on both the ends. The other rod was of
silver colour, hollow and 70 cm long. This rod formed part of a hydraulic
jack and was used as its lever, Ex.PW49/G. The rods were blood stained and
the recovered rods were sealed with the seal of PS and were deposited in
the Malkhana. On 24.12.2012, the said iron rods along with the sample seal
were sent to CFSL, CBI for examination through SI Subhash, PW-74, vide RC
No. 178/21/12, proved as Ex.PW-77/R. The DNA report prepared by Dr. B.K.
Mohapatra, PW-45, suggests that the DNA profile developed from the
bloodstains from both the iron rods is consistent with the DNA profile of
the prosecutrix.

193. Mr. Sharma, learned counsel for the appellants, has countered
the prosecution case on the use of iron rods. He has drawn support from the
medical records and the testimony of the witnesses as also the prosecutrix
to assert the aforesaid submission. He submits that the prosecution has
fabricated the story as regards the use of iron rods only to falsely
implicate all the accused in the death of the prosecutrix. The defence has
refuted the use of iron rods by the accused on the ground that the
informant as well as the prosecutrix did not mention about the use of iron
rods in their first statements. The main contention of the accused is that
the prosecutrix herself, in her first statement given to Dr. Rashmi Ahuja,
PW-49, Ex. PW-49/A, failed to disclose the use of iron rods. He relies on
the absence of the words ‘iron rods’ in Ex.PW-49/A to fortify this
submission. He contends that as recorded by PW-49, the prosecutrix was in a
fit state of mind for she even gave her residential address after
undergoing the traumatic experience, but she failed to mention that the
accused persons also used the iron rods on her, a fact that would have had
a bearing on her treatment.

194. The aforesaid proponement is not sustainable as MLC, Ex.PW49/A,
of the prosecutrix suggests that she was brought to the hospital in a
traumatized state with grievous injuries and she was cold and clammy, i.e.,
whitish (due to vasoconstriction) and had lost a lot of blood. As per Ex.PW-
49/A, the prosecutrix was sure of intercourse to have been committed twice
along with rectal penetration whereafter she did not remember intercourse.
It is worthy to note that she was oscillating between consciousness and
unconsciousness at the time of the incident and there was loss of lot of
blood by the time she had reached the hospital which is evident from Ex.
PW49/B-MLC. A victim who has just suffered a ghastly and extremely
frightening incident cannot be expected to immediately come out of the
state of shock and state the finest details of the incident. The subsequent
dying declarations of the prosecutrix corroborated by the medical evidence
cannot be disregarded merely on the ground that the use of iron rods is not
substantiated by the prosecutrix’s first statement.

195. The gravity and hideousness of the injuries caused to the
prosecutrix, as has already been discussed above, clearly shows the use of
iron rods by the accused. The injuries caused to the prosecutrix by
incessantly and abominably injuring her private parts using the concerned
iron rods were so grave that death was the inevitable consequence. As
already noted, both the iron rods, Ex.P-49/1 and Ex.P-49/2, were recovered
at the instance of accused Ram Singh from inside the concerned bus. The DNA
profile developed from the blood stains obtained from the iron rods is also
consistent with the DNA profile of the prosecutrix. In such circumstances,
merely because the finger prints of the accused were not obtained from the
iron rods, it cannot be concluded that the accused were not linked with the
concerned iron rods. Accused Ram Singh himself had the iron rods recovered
to the Investigating Officer. Furthermore, the dying declaration of the
prosecutrix, which is highly reliable, clearly establishes the horrendous
use of iron rods by the accused persons.

196. The iron rods were sent for forensic examination to the CFSL.
The DNA profile developed from the blood stains obtained from the iron rods
recovered at the instance of accused Ram Singh was found to be of female
origin and were found to be consistent with the DNA profile of the
prosecutrix. Hence, the factum of insertion of iron rods in the private
parts of the prosecutrix is also fortified by the scientific evidence.

197. PW-1, in his chief examination, deposed that he was severely
assaulted by the accused with iron rods on his head and the rest of his
body. It is submitted that as per MLC of PW-1, Ex.PW-51/A, the nature of
injuries sustained by PW-1 were simple. It is contended that if PW-1 was
beaten with the iron rod in the manner alleged by him, he would have
sustained more serious injuries. It is canvassed that PW-1 sustained only
simple injuries which leads to an inference that the iron rod was not used
in the manner stated by the prosecution. Of course, as per Ex.PW-51/A, PW-1
sustained simple injuries but as seen from Ex.PW-51/A, there was also nasal
bleeding from his nose and PW-1 was also vomiting. Merely because the
injuries sustained by PW-1 were opined to be of simple nature, the use of
iron rods cannot be doubted.

198. Learned counsel for the appellants further stressed on the
point that PW-1 neither in his MLC, Ex. PW-51/A, nor in his complaint,
Ex.PW1/A, mentioned the use of iron rod; the description of bus or the
names of the accused. In this regard, it has to be kept in mind that the
purpose of FIR is mainly to set the criminal law in motion and not to lay
down every minute detail and the entire gamut of the evidence relating to
the case and, therefore, non-mention of use of iron rods in the FIR does
not remotely create a dent in the case of the prosecution. When the
subsequent statements of the prosecutrix well corroborated by the medical
evidence are available, it is completely immaterial that the statement of
PW-1 does not mention the use of iron rods. Thus, PW-1’s omission to state
the factum of use of iron rods in his complaint or MLC is not fatal to the
case of the prosecution.

199. It is apposite to state here that non-mention of the use of
iron rods in PW-1’s statement has been a ground for giving rise to
suspicion of his testimony. We find it difficult to comprehend as to how PW-
1 could have been aware of any use of iron rods against the prosecutrix. PW-
1 was being held by the accused towards the front of the bus, while the
prosecutrix was being raped at the rear side of the bus and the lights of
the bus also had been turned off. His statement in his complaint, Ex.PW-
1/A, that he heard the prosecutrix shouting and crying and that her voice
was oscillating is consistent with the narration of facts as also the
medical records.

200. The second statement of the prosecutrix recorded in Ex.PW-27/A
by PW-27, Smt. Usha Chaturvedi, has detailed the account of the entire
incident specifying the role of each accused; gang rape/unnatural sex
committed upon her; and the injuries caused in her vagina and rectum by use
of iron rod and by inserting of hands by the accused are mentioned. This
statement, in fact, bears the date and signature of the prosecutrix and
records that the accused committed gang rape on her, inserted iron rod in
the vagina and through anal opening causing injuries to the internal organs
of the prosecutrix. The subsequent statement of the prosecutrix also
affirms the above facts. That apart, as per the medical opinion Ex.PW-49/G
given by PW-49, the recto-vaginal injury of the prosecutrix could be caused
by the rods recovered from the bus.

Anatomy argument

201. Learned counsel for the appellants also submitted that if the
rods purported to be used had actually been inserted through the vagina, it
would have first destroyed the uterus before the intestines were pulled
out. It was submitted that there were no rods related injuries in her
uterus and medical science too does not assist the prosecution in their
claim that the iron rods were used as a weapon for penetration. Mr. Sharma
placed reliance on:

1. the first OT notes, Ex. PW-50/A that were made following the first
operation of the prosecutrix on 17.12.2012 and where the following was
recorded:

“uterus, B/L tubes and ovaries seen and healthy”

2. the case sheet of the operation conducted on 19.12.2012, presented as
Ex. PW-50/D, wherein the following was recorded:

“Gynae findings

… Cx, vaginal vault and ant vaginal wall (H) …”

3. the post-mortem report, Ex. PW-34/A, that was prepared in Mount
Elizabeth Hospital, Health Science Authority, Singapore, by the Autopsy
doctor, Dr. Paul Chui on 29.12.2012 and where the following was recorded:
“Uterus, Tubes and Ovaries

Uterus, tubes and ovaries were present in their normal anatomical
positions. The uterus measured 8cm x 5cm x 3.5cm. Thin fibrinopurulent
adhesions were present on the serosal surfaces of the uterus and the
adnexae. Cervix appeared normal and the os was closed. There were no
cervical erosions and no haemorrhages on the intra-vaginal aspect of the
cervix. Cut sections showed thin endometrium and normal myometrium. Tubes
were normal. Both ovaries were normal in size. Cut sections of both ovaries
showed corpus lutea, the largest of which was present in the right ovary.”

The learned counsel for the appellants submit that that if the
doctors in the surgery team did not find the uterus damaged, then it cannot
be claimed that the rod was inserted in her private parts and intestines
were pulled out.

202. The aforesaid submission can be singularly rejected without
much discussion on the foundation that a question to that effect was not
put to the doctors in their respective cross-examinations. However, instead
of summary rejection, we shall deal with it for the sake of our
satisfaction and also to meet the contention. While it may be so that the
uterus, tubes and the cervix were not damaged, that does not mean that the
intestines could not have been damaged as they have been. It stands to
reason based on common understanding and medical science to allay this
contention. First, it is nowhere the stance that the rod was inserted only
through the vagina. The prosecutrix herself had stated in her dying
declarations that she was raped through the vagina as also the anus, Ex. PW-
27/A. The anus is directly connected to the intestines via the rectum and,
thus, deep penetration by use of a rod or other long object could have
caused injuries to the bowels/intestines.

203. To appreciate the above contention, it is necessary to
understand the anatomy and position of the uterus. We may profitably refer
to the following excerpts from ‘Gray’s Anatomy: Descriptive and Applied’,
34th Edn. [Orient Longman Publication] at pages 1572 and 1579:
“THE UTERUS: The uterus, or womb, is a hollow, thick-walled, muscular organ
situated in the lesser pelvis between the urinary bladder in front and the
rectum behind. Into its upper part the uterine tubes open one on each side,
while below, its cavity communicates with that of the vagina. When the ova
are discharged from the ovaries, they are carried to the uterine cavity
through the uterine tubes. If an ovum be fertilized it embeds itself in the
uterine wall and is normally retained in the uterus until prenatal
development is completed, the uterus undergoing changes in size and
structure to accommodate itself to the needs of the growing embryo. After
parturition the uterus returns almost to its former condition, though it is
somewhat larger than in the virgin state. For general descriptive purposes
the adult virgin uterus is taken as the type form.

In the virgin state the uterus is flattened from before backwards and is
pear-shaped, with the narrow end directed downwards and backwards. It lies
between the bladder below and in front, and the sigmoid colon and rectum
above and behind, and is completely below the level of the pelvic inlet.

The long axis of the uterus usually lies approximately in the axis of the
pelvic inlet (p.440), but as the organ is freely movable its position
varies with the state of distension of the bladder and rectum. Except when
much displaced by a distended bladder, it forms almost a right angle with
the vagina, since the axis of the vagina correspond to the axes of the
cavity and outlet of the lesser pelvis (p. 440)” (at page 1572)

“THE VAGINA: The vagina is a canal which extends from the vestibule, or
cleft between the labia minora, to the uterus, and is situated, behind the
bladder and urethra, and in front of the rectum and anal canal; it is
directed upwards and backwards, its axis forming with that of the uterus an
angle of over ninety degrees, opening forwards …” (at page 1579)

“And ‘A Fascimile: Gray’s Anatomy’ (at page 723) [Black Rose Publications]

“THE VAGINA”
…………

Relations: Its anterior surface is concave, and in relation with the base
of the bladder, and with the urethra. Its posterior surface is convex, and
connected to the anterior wall of the rectum, for the lower three-fourths
of its extent….”

The aforesaid excerpts establish that the vagina and uterus are
almost at right angles to each other and the rectum is only separated by a
wall of tissue. The pelvic cavity as set forth in the diagram in the book
supports the same.

204. The exhibits relating to injuries may be noted. OT notes from
17.12.2012 and 19.12.2012 read as under:

“OT Notes:

PW 50/B: Call received from Dr. Gaurav and Dr. Piyush at approx. 4.00 a.m.
from noty OT.

Immediately reached OT and reviewed the details of internal injury (as
mentioned in OT notes) the condition of the small and large bowel extremely
bad for any definitive repair. The condition explained to the mother of
the patient and the police officials present. Case discussed with Dr. S.K.
Jain. Int. I/C telephonically.”

205. The operative findings which are seen from the examination done
by the Gynaecologist and the Surgeons are:

“Perineal

Abdominal findings: Rectum is longitudinally torn on anterior aspect in
continuation with tear. This tear is continuing upward involving sigmoid
colon descending colon which is splayed open. The margins are edematous.

There are multiple longitudinal tear in the mucosa of rectosigmoid area.

Transverse colon was also torn and gangrenous.

Hepatic flexure ascending colon and caecum were gangrenous and multiple
perforation at many places.

Terminal item approximately 1½ feet loosely hanging in the abdominal
cavity. It was avulsed from its mesentery and was nonviable.

Rest of small bowel was nonenlistend with only patens of mucosa at places
and border of the mesentery was contused. This contused mesentery border
initially appeared (during first surgery) as contused small bowel.

Jejunostomy stoma was gangrenous for approximately 2 cm.

Stomach and duodenum was distended but healthy.

Surgical Procedure:

Resection of gangrenous terminal ileum, caecum, appendix, ascending colon,
hepatic flexure and transverse colon was done.

Resection of necrotic jejunal stoma with closure of duodenojejunal flexure
in two layers by 3-0 viaeny.

Diverting lateral tube dudoenostomy (with 18F Folley’s catheter) brought
through right flank.

Tube gastrostomy was added as another decompressive measures (28 size
apotere tube was used) Tube gastrostomy was brought and from previous
jejunostomy site.

Abdominal drain placed in pelvis.

Rectal sheath closed by using No. 1 prolene interrupted sutures.

Skin closed by using 1-0 nylone.

Perineal wound packed with Betadine soaked gauze piece.

T-Bandage applied

ASD done for abdominal wound.

Patient tolerated procedure and was shifted back to ICU-I.

Post OP Advise

NPO

CRTA

IVF as per CVP and output by ICU team.

Injection menopenum Limezolid to be continued as before.

Injection metronidazole 100ml IV TDS.

Injection Pantoprozole 20 mg IV OD

Strict I/O charting.

Rest of the treatment as advised by ICU team.”

206. From the nature of the injuries noted in the OT Notes, the
rectum was longitudinally torn and transverse colon was torn. From the
Post-Mortem Certificate, the uterus was found in position (no injuries to
uterus). If the rod was inserted in the vagina, having regard to the fact
that the injury within the vagina was only in the posterior surface, it
indicates that the rod was pushed inside with a downward force and not
upward (which could have resulted in injury to the uterus) and it perhaps
tunnelled its way through the vagina into the rectal cavity and the bowels.
Therefore, merely because no injuries to the uterus of the victim were
noticed, that does not lead to the conclusion that iron rod was not used.
Thus, the submission that has been raised with immense enthusiasm and
ambition to create a concavity in the case of the prosecution on this score
deserves to be repelled and we do so.

Analysis of evidence pertaining to DNA

207. Having dealt with the aspect pertaining to insertion of rod, it
is apposite to advert to the medical evidence and post mortem report. We
have, while dealing with other aspects, referred to certain aspects
including DNA analysis of medical evidence but the same requires to be
critically dealt with as the prosecution has placed hevy reliance upon it.

208. DNA is the abbreviation of Deoxyribo Nucleic Acid. It is the
basic genetic material in all human body cells. It is not contained in red
blood corpuscles. It is, however, present in white corpuscles. It carries
the genetic code. DNA structure determines human character, behaviour and
body characteristics. DNA profiles are encrypted sets of numbers that
reflect a person’s DNA makeup which, in forensics, is used to identify
human beings. DNA is a complex molecule. It has a double helix structure
which can be compared with a twisted rope ‘ladder’.

209. The nature and characteristics of DNA had been succinctly
explained by Lord Justice Phillips in Regina v. Alan James Doheny Gary
Adams[83]. In the above case, the accused were convicted relying on
results obtained by comparing DNA profiles obtained from a stain left at
the scene of the crime with DNA profiles obtained from a sample of blood
provided by the appellant. In the above context, with regard to DNA, the
following was stated by Lord Justice Phillips:

“Deoxyribonucleic acid, or DNA, consists of long ribbon-like molecules, the
chromosomes, 46 of which lie tightly coiled in nearly every cell of the
body. These chromosomes – 23 provided from the mother and 23 from the
father at conception, form the genetic blueprint of the body. Different
sections of DNA have different identifiable and discrete characteristics.
When a criminal leaves a stain of blood or semen at the scene of the crime
it may prove possible to extract from that crime stain sufficient sections
of DNA to enable a comparison to be made with the same sections extracted
from a sample of blood provided by the suspect. This process is complex and
we could not hope to describe it more clearly or succintly than did Lord
Taylor C.J. in the case of Deen (transcript:December 21, 1993), so we shall
gratefully adopt his description.

“The process of DNA profiling starts with DNA being extracted from the
crime stain and also from a sample taken from the suspect. In each case the
DNA is cut into smaller lengths by specific enzymes. The fragments produced
are sorted according to size by a process of electrophoresis. This involves
placing the fragments in a gel and drawing them electromagnetically along a
track through the gel. The fragments with smaller molecular weight travel
further than the heavier ones. The pattern thus created is transferred from
the gel onto a membrane. Radioactive DNA probes, taken from elsewhere,
which bind with the sequences of most interest in the sample DNA are then
applied. After the excess of the DNA probe is washed off, an X-ray film is
placed over the membrane to record the band pattern. This produces an auto
radiograph which can be photographed. When the crime stain DNA and the
sample DNA from the suspect have been run in separate tracks through the
gel, the resultant auto-radiographs can be compared. The two DNA profiles
can then be said either to match or not.””

210. In the United States, in an early case Frye v. United
States[84], it was laid down that scientific evidence is admissible only if
the principle on which it is based is substantially established to have
general acceptance in the field to which it belonged. The US Supreme Court
reversed the above formulation in Daubert v. Merrell Dow Pharmaceuticals,
Inc.[85] stating thus:

“11. Although the Frye decision itself focused exclusively on “novel”
scientific techniques, we do not read the requirements of Rule 702 to apply
specially or exclusively to unconventional evidence. Of course, well-
established propositions are less likely to be challenged than those that
are novel, and they are more handily defended. Indeed, theories that are so
firmly established as to have attained the status of scientific law, such
as the laws of thermodynamics, properly are subject to judicial notice
under Fed.Rule Evid.201.

13. This is not to say that judicial interpretation, as opposed to
adjudicative fact finding, does not share basic characteristics of the
scientific endeavor: “The work of a judge is in one sense enduring and in
another ephemeral… In the endless process of testing and retesting, there
is a constant rejection of the dross and a constant retention of whatever
is pure and sound and fine.” B.Cardozo, The nature of the Judicial Process
178, 179 (1921).”

211. The principle was summarized by Blackmun, J., as follows:
“To summarize: “general acceptance” is not a necessary precondition to the
admissibility of scientific evidence under the Federal Rules of Evidence,
but the Rules of Evidence—especially Rule 702—do assign to the trial judge
the task of ensuring that an expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand. Pertinent evidence based on
scientifically valid principles will satisfy those demands.

The inquiries of the District Court and the Court of Appeals focused
almost exclusively on “general acceptance,” as gauged by publication and
the decisions of other courts. Accordingly, the judgment of the Court of
Appeals is vacated and the case is remanded for further proceedings
consistent with this opinion.”

212. After the above judgment, the DNA Test has been frequently
applied in the United States of America. In District Attorney’s Office for
the Third Judicial District et al. v. William G. Osborne[86], Chief Justice
Roberts of the Supreme Court of United States, while referring to the DNA
Test, stated as follows:

“DNA testing has an unparalleled ability both to exonerate the wrongly
convicted and to identify the guilty. It has the potential to significantly
improve both the criminal justice system and police investigative
practices. The Federal Government and the States have recognized this, and
have developed special approaches to ensure that this evidentiary tool can
be effectively incorporated into established criminal procedure-usually but
not always through legislation.

… … ….

Modern DNA testing can provide powerful new evidence unlike anything
known before. Since its first use in criminal investigations in the mid-
1980s, there have been several major advances in DNA technology,
culminating in STR technology. It is now often possible to determine
whether a biological tissue matches a suspect with near certainty. While of
course many criminal trials proceed without any forensic and scientific
testing at all, there is no technology comparable to DNA testing for
matching tissues when such evidence is at issue.”

213. DNA technology as a part of Forensic Science and scientific
discipline not only provides guidance to investigation but also supplies
the Court accrued information about the tending features of identification
of criminals. The recent advancement in modern biological research has
regularized Forensic Science resulting in radical help in the
administration of justice. In our country also like several other developed
and developing countries, DNA evidence is being increasingly relied upon by
courts. After the amendment in the Criminal Procedure Code by the insertion
of Section 53A by Act 25 of 2005, DNA profiling has now become a part of
the statutory scheme. Section 53A relates to the examination of a person
accused of rape by a medical practitioner.

214. Similarly, under Section 164A inserted by Act 25 of 2005, for
medical examination of the victim of rape, the description of material
taken from the person of the woman for DNA profiling is must. Section 53A
sub-section (2) as well as Section 164(A) sub-section (2) are to the
following effect:

“Section 53A. Examination of person accused of rape by Medical
Practitioner.-

(1) … … … …

(2) The registered medical practitioner conducting such examination shall,
without delay, examine such person and prepare a report of his examination
giving the following particulars, namely:-

the name and address of the accused and of the person by whom he was
brought,

the age of the accused,

marks of injury, if any, on the person of the accused,

the description of material taken from the person of the accused for DNA
profiling, and

other material particulars in reasonable detail.

Section 164A. Medical Examination of the victim of rape.-

(1) … … … …

(2) The registered medical practitioner, to whom such woman is sent, shall,
without delay, examine her person and prepare a report of his examination
giving the following particulars, namely:-

the name and address of the woman and of the person by whom she was
brought;

the age of the woman;

the description of material taken from the person of the woman for DNA
profiling;

marks of injury, if any, on the person of the woman;

general mental condition of the woman; and

other material particulars in reasonable detail.”

215. This Court had the occasion to consider various aspects of DNA
profiling and DNA reports. K.T. Thomas, J. in Kamti Devi (Smt.) and another
v. Poshi Ram[87], observed:

“10. We may remember that Section 112 of the Evidence Act was enacted at a
time when the modern scientific advancements with deoxyribonucleic acid
(DNA) as well as ribonucleic acid (RNA) tests were not even in
contemplation of the legislature. The result of a genuine DNA test is said
to be scientifically accurate. …”

216. In Pantangi Balarama Venkata Ganesh v. State of Andhra
Pradesh[88], a two-Judge Bench had explained as to what is DNA in the
following manner:

“41. Submission of Mr Sachar that the report of DNA should not be relied
upon, cannot be accepted. What is DNA? It means:

“Deoxyribonucleic acid, which is found in the chromosomes of the cells of
living beings is the blueprint of an individual. DNA decides the
characteristics of the person such as the colour of the skin, type of hair,
nails and so on. Using this genetic fingerprinting, identification of an
individual is done like in the traditional method of identifying
fingerprints of offenders. The identification is hundred per cent precise,
experts opine.”

There cannot be any doubt whatsoever that there is a need of quality
control. Precautions are required to be taken to ensure preparation of high
molecular weight DNA, complete digestion of the samples with appropriate
enzymes, and perfect transfer and hybridization of the blot to obtain
distinct bands with appropriate control. (See article of Lalji Singh,
Centre for Cellular and Molecular Biology, Hyderabad in DNA profiling and
its applications.) But in this case there is nothing to show that such
precautions were not taken.

42. Indisputably, the evidence of the experts is admissible in evidence in
terms of Section 45 of the Evidence Act, 1872. In cross-examination, PW 46
had stated as under:

“If the DNA fingerprint of a person matches with that of a sample, it means
that the sample has come from that person only. The probability of two
persons except identical twins having the same DNA fingerprint is around 1
in 30 billion world population.””

217. In Santosh Kumar Singh v. State Through CBI[89], which was a
case of a young girl who was raped and murdered, the DNA reports were
relied upon by the High Court which were approved by this Court and it was
held thus:

“71. We feel that the trial court was not justified in rejecting the DNA
report, as nothing adverse could be pointed out against the two experts who
had submitted it. We must, therefore, accept the DNA report as being
scientifically accurate and an exact science as held by this Court in Kamti
Devi v. Poshi Ram (supra). In arriving at its conclusions the trial court
was also influenced by the fact that the semen swabs and slides and the
blood samples of the appellant had not been kept in proper custody and had
been tampered with, as already indicated above. We are of the opinion that
the trial court was in error on this score. We, accordingly, endorse the
conclusions of the High Court on Circumstance 9.”

218. In Inspector of Police, Tamil Nadu v. John David[90], a young
boy studying in MBBS Course was brutally murdered by his senior. The torso
and head were recovered from different places which were identified by the
father of the deceased. For confirming the said facts, the blood samples of
the father and mother of the deceased were taken which were subject to DNA
test. From the DNA, the identification of the deceased was proved.
Paragraph 60 of the decision is reproduced below:

“60. … The said fact was also proved from the DNA test conducted by PW 77.
PW 77 had compared the tissues taken from the severed head, torso and limbs
and on scientific analysis he has found that the same gene found in the
blood of PW1 and Baby Ponnusamy was found in the recovered parts of the
body and that therefore they should belong to the only missing son of PW

1.”

219. In Krishan Kumar Malik v. State of Haryana[91], in a gang rape
case when the prosecution did not conduct DNA test or analysis and matching
of semen of the appellant-accused with that found on the undergarments of
the prosecutrix, this Court held that after the incorporation of Section 53-
A in CrPC, it has become necessary for the prosecution to go in for DNA
test in such type of cases. The relevant paragraph is reproduced below:
“44. Now, after the incorporation of Section 53-A in the Cr.P.C w.e.f
23.06.2006, brought to our notice by the learned counsel for the respondent
State, it has become necessary for the prosecution to go in for DNA test in
such type of cases, facilitating the prosecution to prove its case against
the accused. Prior to 2006, even without the aforesaid specific provision
in CrPC the prosecution could have still restored to this procedure of
getting the DNA test or analysis and matching of semen of the appellant
with that found on the undergarments of the prosecutrix to make it a
foolproof case, but they did not do so, thus they must face the
consequences.”

220. In Surendra Koli v. State of Uttar Pradesh and others[92], the
appellant, a serial killer, was awarded death sentence which was confirmed
by the High Court. While confirming the death sentence, this Court relied
on the result of the DNA test conducted on the part of the body of the
deceased girl. Para 12 is reproduced below:-

“12. The DNA test of Rimpa by CDFD, a pioneer institute in Hyderabad
matched with that of blood of her parents and brother. The doctors at AIIMS
have put the parts of the deceased girls which have been recovered by the
doctors of AIIMS together. These bodies have been recovered in the
presence of the doctors of AIIMS at the pointing out by the accused
Surendra Koli. Thus, recovery is admissible under Section 27 of the
Evidence Act.”

221. In Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v.
State of Maharashtra[93], the accused was awarded death sentence on charges
of killing large number of innocent persons on 26th November, 2008 at
Bombay. The accused with others had come from Pakistan using a boat ‘Kuber’
and several articles were recovered from ‘Kuber’. The stains of sweat,
saliva and other bodily secretions on those articles were subjected to DNA
test and the DNA test matched with several accused.

The Court observed:

“333. It is seen above that among the articles recovered from Kuber were a
number of blankets, shawls and many other items of clothing. The stains of
sweat, saliva and other bodily secretions on those articles were subjected
to DNA profiling and, excepting Imran Babar (deceased Accused 2), Abdul
Rahman Bada (deceased Accused 5), Fahadullah (deceased Accused 7) and
Shoaib (deceased Accused 9), the rest of six accused were connected with
various articles found and recovered from the Kuber. The appellant’s DNA
matched the DNA profile from a sweat stain detected on one of the jackets.
A chart showing the matching of the DNA of the different accused with DNA
profiles from stains on different articles found and recovered from the
Kuber is annexed at the end of the judgment as Schedule III.”

222. In Sandeep v. State of Uttar Pradesh[94], the facts related to
the murder of pregnant paramour/girlfriend and unborn child of the
accused. The DNA report confirmed that the appellant was the father of the
unborn child. The Court, relying on the DNA report, stated as follows:

“67. In the light of the said expert evidence of the Junior Scientific
Officer it is too late in the day for the appellant Sandeep to contend that
improper preservation of the foetus would have resulted in a wrong report
to the effect that the accused Sandeep was found to be the biological
father of the foetus received from the deceased Jyoti. As the said
submission is not supported by any relevant material on record and as the
appellant was not able to substantiate the said argument with any other
supporting material, we do not find any substance in the said submission.
The circumstance, namely, the report of DNA in having concluded that
accused Sandeep was the biological father of the recovered foetus of Jyoti
was one other relevant circumstance to prove the guilt of the said
accused.”

223. In Rajkumar v. State of Madhya Pradesh[95], the Court was
dealing with a case of rape and murder of a 14 year old girl. The DNA
report established the presence of semen of the appellant in the vaginal
swab of the prosecutrix. The conviction was recorded relying on the DNA
report. In the said context, the following was stated:

“8. The deceased was 14 years of age and a student in VIth standard which
was proved from the school register and the statement of her father Iknis
Jojo (PW1). Her age has also been mentioned in the FIR as 14 years. So far
as medical evidence is concerned, it was mentioned that the deceased
prosecutrix was about 16 years of age. So far as the analysis report of the
material sent and the DNA report is concerned, it revealed that semen of
the appellant was found on the vaginal swab of the deceased. The clothes of
the deceased were also found having appellant’s semen spots. The hair which
were found near the place of occurrence were found to be that of the
appellant.”

224. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and
another[96], the appellant, father of the child born to his wife,
questioned the paternity of the child on the ground that she did not stay
with him for the last two years. The Court directed for DNA test. The DNA
result opined that the appellant was not the biological father of the
child. The Court also had the occasion to consider Section 112 of the
Evidence Act which raises a presumption that birth during marriage is
conclusive proof of legitimacy. The Court relied on the DNA test holding
the DNA test to be scientifically accurate. The pertinent observations are
extracted below:

“19. The husband’s plea that he had no access to the wife when the child
was begotten stands proved by the DNA test report and in the face of it, we
cannot compel the appellant to bear the fatherhood of a child, when the
scientific reports prove to the contrary. We are conscious that an innocent
child may not be bastardised as the marriage between her mother and father
was subsisting at the time of her birth, but in view of the DNA test
reports and what we have observed above, we cannot forestall the
consequence. It is denying the truth. “Truth must triumph” is the hallmark
of justice.

20. As regards the authority of this Court in Kamti Devi, this Court on
appreciation of evidence came to the conclusion that the husband had no
opportunity whatsoever to have liaison with the wife. There was no DNA test
held in the case. In the said background i.e. non-access of the husband to
the wife, this Court held that the result of DNA test “is not enough to
escape from the conclusiveness of Section 112 of the Act.” The judgment has
to be understood in the factual scenario of the said case. The said
judgment has not held that DNA test is to be ignored. In fact, this Court
has taken note of the fact that DNA test is scientifically accurate. We
hasten to add that in none of the cases referred to above, this Court
confronted with a situation in which a DNA test report, in fact, was
available and was in conflict with the presumption of conclusive proof of
legitimacy of the child under Section 112 of the Evidence Act. In view of
what we have observed above, these judgments in no way advance the case of
the respondents.”

From the aforesaid authorities, it is quite clear that DNA report
deserves to be accepted unless it is absolutely dented and for non-
acceptance of the same, it is to be established that there had been no
quality control or quality assurance. If the sampling is proper and if
there is no evidence as to tampering of samples, the DNA test report is to
be accepted.

225. In order to establish a clear link between the accused persons
and the incident at hand, the prosecution has also adduced scientific
evidence in the form of DNA, fingerprint and bite mark analysis.

226. Various samples, for the purpose of DNA profiling, were lifted
from the person of the prosecutrix; the informant; the accused, their
clothes/ articles; the dumping spot; the iron rods; the ashes of partly
burnt clothes; as well as from the offending bus. PW-45, Dr. B.K.
Mohapatra, analysed the said DNA profiles and submitted his report thereof.
In his report, he concluded that the samples were authentic and capable of
establishing the identities of the persons concerned beyond reasonable
doubt.

227. After establishing the identities of each of the accused
persons, the informant and the prosecutrix through DNA analysis, the DNA
profiles generated from the remaining samples, where the identity of
biological material found thereon needed to be ascertained, were matched
with the DNA profiles of the prosecutrix, the informant and the accused,
generated earlier from known samples. Such an analysis cogently linked each
of the accused with the victims as also with the crime scene. A summary of
the findings in the report submitted by PW-45, Dr. B.K. Mohapatra, is as
under:

|“S.No. |Accused |DNA EVIDENCE |
|1 |Ram Singh |Rectal swab from the prosecutrix contained |
| | |DNA of male origin, which was found |
| | |consistent with the DNA developed from the |
| | |blood sample of this accused. |
| | | |
| | |DNA profile developed from the blood stains |
| | |from the underwear, T-shirt and slippers of |
| | |this accused was found consistent with the |
| | |DNA of the prosecutrix. |
|2 |Mukesh |DNA profile developed from the blood stains |
| | |from the pants, T-shirt and jacket of this |
| | |accused was found consistent with the DNA of |
| | |the prosecutrix. |
|3 |Akshay |Breast swab of the prosecutrix contained DNA |
| | |of male origin which was found consistent |
| | |with the DNA of this accused. |
| | | |
| | |DNA profile developed from the blood stains |
| | |from the jeans of this accused was found |
| | |consistent with the DNA of the prosecutrix. |
|4 |Vinay |DNA profile developed from the blood stains |
| | |from the underwear, jacket and slippers of |
| | |this accused was found consistent with the |
| | |DNA of the prosecutrix. |
|5 |Pawan |DNA profile developed from the blood stains |
| | |from the sweater and shoes and slippers of |
| | |this accused was found consistent with the |
| | |DNA of the prosecutrix.” |

228. Further, a summary of the DNA analysis of the biological
samples lifted from the material objects such as the bus, the iron rods,
and the ash and unburnt pieces of clothes is also worth producing here:

|“Serial |Identity of the |Findings of DNA Analysis |
|No. |victim | |
| |Informant |The DNA profile developed from burnt |
| | |clothes pieces was found to be of |
| | |male origin and was consistent with |
| | |the DNA profile of complainant. |
| | | |
| | |The bunch of DNA profile developed |
| | |from hair and blood stained pieces of|
| | |paper recovered from the bus was |
| | |found consistent with the DNA profile|
| | |of complainant. |
| | | |
| | |The DNA profile developed from blood |
| | |stained dried leaves collected from |
| | |the place where both the victims were|
| | |thrown matched with the DNA profile |
| | |of complainant. |
| |Prosecutrix |The DNA profile developed |
| | |from blood stains from both the iron |
| | |rods recovered at the |
| | |instance of accused Ram Singh from |
| | |bus was of female origin and was |
| | |consistent with the DNA profile of |
| | |prosecutrix. |
| | |The DNA profile developed from blood |
| | |stains from curtains of the bus |
| | |matched with the DNA profile of |
| | |prosecutrix. |
| | |The DNA profile developed from blood |
| | |stains from seat covers was found |
| | |consistent with the DNA profile of |
| | |prosecutrix. |
| | |DNA profile developed from blood |
| | |stains from the bunch of the hair |
| | |recovered from floor of the bus below|
| | |sixth row seat, blood stains prepared|
| | |from the roof of the bus near back |
| | |gate, blood stains prepared from the |
| | |floor of the bus near back gate, |
| | |blood stains taken from side of back |
| | |stairs of the bus, and blood stains |
| | |taken from the inner side of the back|
| | |door of the bus was found consistent |
| | |with the DNA profile of prosecutrix. |

229. PW-45, Dr. B.K. Mohapatra, has clearly testified in his cross-
examination that all the experiments conducted by him confirmed to the
guidelines and methodology documented in the Working Procedure Manuals of
the laboratory which have been validated and recommended for use in the
laboratory. He further added that once a DNA profile is generated, its
accuracy is 100%. The trial court and the High Court have consistently
noted that the counsel for the defence did not raise any substantial ground
to challenge the DNA report during the cross-examination of PW-45. In such
circumstances, there is no reason to declare the DNA report as inaccurate,
especially when it clearly links the accused persons with the incident.

230. Mr. Sharma, learned counsel appearing for appellants – Mukesh
and Pawan Kumar Gupta, submitted that in the insant case, the DNA test
cannot be treated to be accurate, for there was blood transfusion as the
prosecutrix required blood and when there is mixing of blood, the DNA
profiling is likely to differ. It is seemly to note, nothing had been put
to the expert in his cross-examination in this regard. As the authorities
relating to DNA would show, if the quality control is maintained, it is
treated to be quite accurate and as the same has been established, we are
compelled to repel the said submission of Mr. Sharma.

The evidence relating to finger print analysis:

231. Next aspect that is required to be adverted is the evidence of
fingerprint analysis adduced by the prosecution to establish the identity
of the accused persons. By virtue of the finger print analysis, the
prosecution has tried mainly to establish the presence of the accused in
the offending bus. On 17.12.2012 and 18.12.2012, a team of experts from the
CFSL had lifted chance finger prints from the concerned bus, Ex.P-1, at
Thyagraj Stadium. On 28.12.2012, PW-78, Inspector Anil Sharma of P.S.
Vasant Vihar, the then S.H.O. of Police Station Vasant Vihar, requested the
Director, CFSL for taking digital palm prints and foot prints of all the
accused persons vide his letter Ex.PW-46/C. Pursuant to the said request
made by PW-78, Inspector Anil Sharma, the CFSL on 31.12.2012 took the
finger/palm prints and foot prints of the accused persons at Tihar Jail.
After comparing the chance prints lifted from the bus with the finger
prints/palm prints and foot prints of all the accused persons, PW-46, Shri
A.D. Shah, Senior Scientific Officer (Finger Prints), CFSL, CBI, submitted
his report, Ex.PW-46/D.

232. As per the report, Ex.PW-46/D, the result of the aforesaid
examination of the Finger Print Division of the CFSL, CBI, New Delhi was
that the chance prints of accused Vinay Sharma were found on the bus in
question. The relevant portion of the report is as under:
“RESULT OF EXAMINATION:

1. The chance print marked as Q.1 is identical with left palmprint specimen
of Vinay Sharma S/o Sh.Hari Ram Sharma marked here as LPS-28 on the slip
marked here as S.28 (Matching ridge characteristics have been found in
their relative positions in the chance palmprint and specimen palm print.
This forms the basis of the opinion that these prints are identical. Eight
of them have been marked with projected red lines with their detailed
description are placed at Annexure-1)

II. The chance print marked as Q.4 is identical with right thumb
impression of Vinay Sharma S/o Sh.Hari Ram Sharma marked here as RTS-23 on
the slip marked here as S.23 (Matching ridge characteristics have been
found in their relative positions in the chance print and specimen finger
print. This forms the basis of the opinion that these prints are identical.
Eight of them have been marked with projected red lines with their detailed
description are placed at Annexure-2).”

The above report incontrovertibly proves that accused Vinay was present in
the bus at the time of the incident. Be it noted, the other chance prints
were found to be unfit for comparison or different from specimen print.

The Odontology report

233. Now, we shall analyse the Odontology report. In today’s world,
Odontology is a branch of forensic science in which dental knowledge is
applied to assist the criminal justice delivery system. S. Keiser-Nielsen,
an authority on Forensic Odontology defines the basic concept of Forensic
Odontology in the following words:

“A. Forensic odontology is that branch of odontology which in the
interests of justice deals with the proper handling and examination of
dental evidence and with the proper evaluation and presentation of dental
findings. Only a dentist can handle and examine dental evidence with any
degree of accuracy; therefore, this field is above all a dental field.”

234. Professor Neilsen, elaborating on Forensic Odontology, further
states:

“B. There are three reasons for considering forensic odontology a well-
defined and more or less independent subject:1) it has objectives different
from those at which conventional dental education aims; 2) forensic dental
work requires investigations and considerations different from those
required in ordinary dental practice; and 3) forensic dental reports and
statements have to be presented in accordance with certain legal
formalities in order to be of value to those requesting aid.

The area of forensic odontology consists of three major fields of
activity:1) the examination and evaluation of injuries to teeth, jaws, and
oral tissues from various causes: 2) the examination of bite marks with a
view to the subsequent elimination or possible identification of a suspect
as the originator; and 3) the examination of dental remains (whether
fragmentary or complete, and including all types of dental restoration)
from unknown persons or bodies for the purpose of identification.”

235. In the instant case, the prosecution has relied upon the
odontology report, i.e., bite mark analysis report prepared by PW-71, Dr.
Ashith B. Acharya, to link the incident with the accused persons. The
Odontology report links accused Ram Singh and accused Akshay with the crime
in question.

236. Dr. K.S. Narayan Reddy, in his book, Medical Jurisprudence and
Toxicology (Law, Practice and Procedure), Third Edition, 2010, Chapter VIII
page 268, has extensively dealt with human bites, their patterns, the
manner in which they should be lifted with a swab and moistened with
sterile water and the manner in which such swabs need to be handled is
delineated along with their usefulness in identification. The High Court
has also referred to the same. It is as follows:

“They are useful in identification because the alignment of teeth is
peculiar to the individual. Bite marks may be found in materials left at
the place of crime e.g., foodstuffs, such as cheese, bread, butter, fruit,
or in humans involved in assaults, when either the victim or the accused
may show the marks, usually on the hands, fingers, forearms, nose and
ears.”

237. After making the aforesaid observations, the author dwells upon
the various methods used for bite mark analysis including the photographic
method, which method was utilized in the instant case. The photographic
method is described as under:

“Photographic method: The bite mark is fully photographed with two scales
at right angle to one another in the horizontal plane. Photographs of the
teeth are taken by using special mirrors which allow the inclusion of all
the teeth in the upper or lower jaws in one photograph. The photographs of
the teeth are matched with photographs or tracings of the teeth. Tracings
can be made from positive casts of a bite impression, inking the cutting
edges of the front teeth. These are transferred to transparent sheets, and
superimposed over the photographs, or a negative photograph of the teeth is
superimposed over the positive photograph of the bite. Exclusion is easier
than positive matching.”

238. In the present case, the photographs of bite marks taken by PW-
66, Shri Asghar Hussein, of different parts of the body of the prosecutrix
were examined by PW-71, Dr. Ashith B. Acharya. The photographs depicted the
bite marks on the body of the prosecutrix. The said bite marks found on the
body of the victim were compared with the dental models of the suspects.
The analysis showed that at least three bite marks were caused by accused
Ram Singh, whereas one bite mark has been identified to have been most
likely caused by accused Akshay. An excerpt from the report, Ex. PW- 71/C,
of PW-71, Dr. Ashith B. Acharya, has been extracted by the High Court. It
reads thus:

“…….. There is absence of any unexplainable discrepancies between the
bite marks on Photograph No. 4 and the biting surfaces of one of the
accused person’s teeth, namely Ram Singh. Therefore, there is reasonable
medical certainty that the teeth on the dental models of the accused person
named Ram Singh caused the bite marks visible on Photograph No 4; also the
bite marks on Photograph Nos.1 and 2 show some degree of specificity to
this accused person’s teeth by virtue of a sufficient number of concordant
points, including some corresponding unconventional/ individual
characteristics. Therefore, the teeth on the dental models of the accused
person with the name Ram Singh probably also caused the bite marks visible
on Photograph Nos.1 and 2……..

x x x x x The comparison also shows that there is a concordance in terms of
general alignment and angulation of the biting surfaces of the teeth of the
lower jaw on the dental models of the accused person with the name Akshay
and the corresponding bite marks visible on Photograph No.5. In particular,
the comparison revealed concordance between the biting surface of the teeth
on the lower jaw of the dental models of the accused person with the name
Akshay and the bite mark visible on Photograph No.5 in relation to the
rotated left first incisor whose mesial surface pointed towards the tongue.
Overall, the bite mark shows some degree of specificity to the accused
person’s teeth by virtue of a number of concordant points, including one
corresponding unconventional/ individual characteristic. There is an
absence of any unexplainable discrepancies between the bite mark and the
biting surfaces of this accused person’s teeth. Therefore, the teeth on the
dental models of the accused person with the name Akshay probably caused
the bite marks visible on Photograph No.5.”

239. Be it noted, the present is a case where the victim’s body
contained various white bite marks. Bite mark analysis play an important
role in the criminal justice system. Advanced development of technology
such as laser scanning, scanning electron microscopy or cone beam computed
tomography in forensic odontology is utilized to identify more details in
bite marks and in the individual teeth of the bite. Unlike fingerprints
and DNA, bite marks lack the specificity and durability as the human teeth
may change over time. However, bite mark evidence has other advantages in
the criminal justice system that links a specific individual to the crime
or victim. For a bite mark analysis, it must contain abundant information
and the tooth that made the mark must be quite distinctive.

240. Bite marks in skin are photographed in cases where the suspect
is apprehended. A thorough dental combination is administered after dental
examination of the suspect. Final comparison of the details of the
original mark with the dentation of the suspect is done by experts.

241. The bite marks generally include only a limited number of
teeth. The teeth and oral structure of the accused are examined by experts
and, thereafter, bite marks are compared and reports are submitted.
Forensic Odontology is a science and the most common application of
Forensic Odontology is for the purpose of identification of persons from
their tooth structure.

242. Forensic Odontology has established itself as an important and
indispensable science in medico-legal matters and expert evidence through
various reports which have been utilized by courts in the administration of
justice. In the case at hand, the report is wholly credible because of
matching of bite marks with the tooth structure of the accused persons and
there is no reason to view the same with any suspicion. Learned counsel for
the appellants would only contend that the whole thing has been stage-
managed. We are not impressed by the said submission, for the evidence
brought on record cogently establish the injuries sustained by the
prosecutrix and there is consistency between the injuries and the report.
We are not inclined to accept the hypothesis that bite marks have been
managed.

Acceptability of the plea of alibi

243. Presently, we shall deal with the plea of alibi as the same has
been advanced with immense conviction. It is well settled in law that when
a plea of alibi is taken by an accused, the burden is upon him to establish
the same by positive evidence after the onus as regards the presence on the
spot is established by the prosecution. In this context, we may usefully
reproduce a few paragraphs from Binay Kumar Singh v. State of Bihar[97]:
“22. We must bear in mind that an alibi is not an exception (special or
general) envisaged in the Penal Code, 1860 or any other law. It is only a
rule of evidence recognised in Section 11 of the Evidence Act that facts
which are inconsistent with the fact in issue are relevant. Illustration

(a) given under the provision is worth reproducing in this context:

‘The question is whether A committed a crime at Calcutta on a certain date.
The fact that, on that date, A was at Lahore is relevant.”

23. The Latin word alibi means ‘elsewhere’ and that word is used for
convenience when an accused takes recourse to a defence line that when the
occurrence took place he was so far away from the place of occurrence that
it is extremely improbable that he would have participated in the crime. It
is a basic law that in a criminal case, in which the accused is alleged to
have inflicted physical injury to another person, the burden is on the
prosecution to prove that the accused was present at the scene and has
participated in the crime. The burden would not be lessened by the mere
fact that the accused has adopted the defence of alibi. The plea of the
accused in such cases need be considered only when the burden has been
discharged by the prosecution satisfactorily. But once the prosecution
succeeds in discharging the burden it is incumbent on the accused, who
adopts the plea of alibi, to prove it with absolute certainty so as to
exclude the possibility of his presence at the place of occurrence. When
the presence of the accused at the scene of occurrence has been established
satisfactorily by the prosecution through reliable evidence, normally the
court would be slow to believe any counter-evidence to the effect that he
was elsewhere when the occurrence happened. But if the evidence adduced by
the accused is of such a quality and of such a standard that the court may
entertain some reasonable doubt regarding his presence at the scene when
the occurrence took place, the accused would, no doubt, be entitled to the
benefit of that reasonable doubt. For that purpose, it would be a sound
proposition to be laid down that, in such circumstances, the burden on the
accused is rather heavy. It follows, therefore, that strict proof is
required for establishing the plea of alibi. …”
[underlining is ours]

244. The said principle has been reiterated in Gurpreet Singh v.
State of Haryana[98], Shaikh Sattar v. State of Maharashtra[99], Jitender
Kumar v. State of Haryana[100] and Vijay Pal (supra).

245. We had earlier indicated that in their Section 313 CrPC
statements, the accused have advanced the plea of alibi. Accused Pawan
Kumar Gupta @ Kaalu has taken the plea of alibi stating, inter alia, that
throughout the evening of 16.12.2012 till late night, he was in the DDA
District Park, Hauz Khas, Opposite IIT Gate, New Delhi, watching a musical
event organised in connection with Christmas Celebration and that he was
never in the bus, Ex.P1, and had not committed any offence with the
prosecutrix or with the informant.

246. Before coming to the defence evidence led by him, we may refer
to the answers given by him in response to the questions put to him in his
statement under Section 313 CrPC wherein he has admitted that mobile No.
9711927157 belongs to him. He further stated that he had consumed liquor in
the evening of 16.12.2012 and had accompanied accused Vinay Sharma to the
musical event at DDA District Park where he took more liquor and fell
unconscious and was later brought to his house by his father and uncle. He
stated that he went out in the evening of 16.12.2012 and saw a quarrel
between accused Vinay Sharma and accused Ram Singh (since deceased). Then
he returned to his jhuggi. After sometime, he came out of his jhuggi and
saw accused Vinay Sharma, his sister, mother and others going to a musical
party and so, he also went with them and took more liquor in the party and
even lost his mobile phone. Strangely enough, in his supplementary
statement recorded on 16.08.2013 under Section 313 CrPC, he stated that he
was present in the said party with his family members and friends and that
a video clip was prepared by one Ram Babu, DW-13, and that he does not
remember if he had accompanied accused Vinay Sharma to the said park on
that evening. It is in contradiction to the stand taken by him in his
earlier statement recorded under Section 313 CrPC.

247. Accused Pawan examined his father, DW-2, Shri Hira Lal Ram, who
deposed that on 16.12.2012 about 7:15 p.m., when he came to his house, he
was informed by his daughter that accused Pawan had gone to DDA District
Park, Hauz Khas. It is in contradiction to the deposition made by the other
defence witnesses who have said that accused Vinay Sharma and his family
members had left Ravi Dass Camp, Sector-3, R.K. Puram, New Delhi, about
8:00/8:30 p.m. and that accused Pawan had accompanied them. Accused Pawan
also said so in his initial statement under Section 313 CrPC.

248. DW-4, Shri Gyan Chand, the maternal uncle of accused Pawan,
deposed that he brought accused Pawan Gupta @ Kaalu to the jhuggi from the
DDA District Park and saw one Ram Charan warming his hands on a bonfire
just outside his jhuggi who came and asked him about the well- being of
accused Pawan. Ram Charan, DW-3, however, deposed that about 8:30/9:00
p.m., he was sitting inside his jhuggi with its door open and he saw
accused Pawan being brought by his uncle in drunken state. This is yet
again in contradiction to what has been deposed by the other defence
witnesses who said that accused Pawan Gupta and accused Vinay Sharma had
rather left Ravi Dass Camp, Sector-3, R.K. Puram, New Delhi about 8:00/8:30
p.m. for the DDA District Park.

249. DW-16, a shopkeeper of the locality, had deposed that he had
seen the vehicle of Shri Gyan Chand about 9:00/9:30 p.m. on 16.12.2012 when
accused Pawan Gupta was brought in drunken condition and was taken to his
jhuggi. Initially, he failed to mention if Shri Hira Ram was accompanying
Shri Gyan Chand.

250. Though the witnesses have also deposed about the taking away of
accused Pawan by 3/4 persons on 17.12.2012, yet that plea too is in
contradiction to the arrest memo Ex.PW-60/A wherein the accused is stated
to have been arrested on 18.12.2012 about 1:15 p.m. at the instance of
accused Ram Singh (since deceased).

251. Hence, there exist contradictions in the statements of the
defence witnesses produced on behalf of accused Pawan Gupta (a): qua the
timing when the accused had left his jhuggi at Ravi Dass Camp on the
fateful night of 16.12.2012 inasmuch as some of the witnesses deposed that
accused Pawan left for DDA District Park at 8:00/8:30 p.m. and some others
deposed that they saw him being brought to his jhuggi about 8:30/9:00 p.m.;

(b) qua the fact if DW-2 had gone with DW-1 to the park to fetch his son;
and (c) qua the fact if accused Pawan went to the park with accused Vinay
Sharma or not.

252. Accused Akshay Kumar Singh @ Thakur, in his statement under
Section 313 CrPC, stated that he was not in Delhi on the fateful night and
that on 15.12.2012, he had left Delhi for his village in Mahabodhi Express
on the ticket of his brother, Abhay, along with his brother’s wife and
nephew. He produced certain witnesses in his defence. DW-11, Shri
Chavinder, an auto driver from his village, deposed that he had brought
accused Akshay Kumar Singh @ Thakur and his family members from Anugrah
Narayan Railway Station, District Aurangabad, Bihar to his native village
Karmalahang, P.S. Tandwa, in his own auto on 16.12.2012 at 10:00 a.m. It is
interesting to note that he does not remember about any other
passenger/native who shared his auto on that day. DW-13, Sh. Raj Mohan
Singh, the father-in-law of the accused, deposed that when he reached
accused Akshay’s house, he found his son-in-law being implicated in a rape
case allegedly committed on 16.12.2012. It probably shows that DW-13 had
gone to meet Akshay Kumar Singh @ Thakur only when he had come to know
about his implication in the rape case and when accused Akshay Kumar Singh
@ Thakur was on the run. It is an admitted fact that the Chowkidar of P.S.
Tandwa had met father-in-law of the accused on 20.12.2012 and had informed
him about the implication of accused Akshay for the first time. If it was
so, then DW-13, Shri Raj Mohan, must have visited the house of accused
Akshay Kumar Singh @ Thakur either on 20.12.2012 or on 21.12.2012.

253. DW-12, DW-14 and DW-15 are all relatives of accused Akshay
Kumar Singh @ Thakur and, as observed by both the courts, they tried to
wriggle him out of the messy situation, as is the natural instinct of the
family members. However, it is to be seen that during the evidence of DW-
14, wife of accused Akshay Kumar Singh @ Thakur, she was interrupted from
answering by accused Akshay from behind on more than one occasion.
Similarly, DW-15, the sister-in-law of the accused, who had allegedly
accompanied the accused to her native village, mysteriously, was not aware
as to why her husband Abhay who was to accompany her on 15.12.2012 to the
native village did not accompany her. She was not aware of the reason which
made her husband stay behind in Delhi. Being the wife, she was expected to
know this, at least.

254. While weighing the plea of ‘alibi’, the same has to be weighed
against the positive evidence led by the prosecution, i.e., not only the
substantive evidence of PW-1 and the dying declarations, Ex.PW-27/A and
Ex.PW-30/D-1, but also against the scientific evidence, viz., the DNA
analysis, finger print analysis and bite marks analysis, the accuracy of
which is scientifically acclaimed. Considering the inconsistent and
contradictory nature of the evidence of ‘alibi’ led by the accused against
the positive evidence of the prosecution, including the scientific one, we
hold that the accused have miserably failed to discharge their burden of
absolute certainty qua their plea of ‘alibi’. The plea taken by them
appears to be an afterthought and rather may be read as an additional
circumstance against them.

255. In response to the questions put to him in his statement under
Section 313 CrPC, accused Vinay had admitted that mobile No. 8285947545,
Ex.DW10/1, belongs to his mother and its SIM was lost prior to 16.12.2012
and that on 16.12.2012, at 9:30 p.m., his friend Vipin had taken his phone
to the DDA District Park and had returned it the next morning without SIM
card and memory card.

256. In response to question No. 221, he stated that about 8:00/8:30
p.m., he went to see accused Ram Singh and he had a scuffle/exchange of
fist blow and then he returned to his jhuggi. Thereafter, he left for
musical party with his sister, mother and others. He did not say if his
father had accompanied them. He also told that about 11:30 p.m., he had
returned to his jhuggi.

257. It is worthy to note that the prosecution had proved the Call
Detail Record, Ex.PW-22/B, of the phone of accused Vinay Sharma, having SIM
No. 8285947545, admittedly in the name of his mother, Smt. Champa Devi, but
in the possession of accused Vinay Sharma in the evening of 16.12.2012 and
allegedly snatched by one Vipin in the said music party and returned to him
in the morning of 17.12.2012 without SIM card and memory card. The Call
Detail Record Ex.PW-22/B does show that the accused had been making calls
to one particular number, viz., 8601274533 from 15.12.2012 till 20:19:37 of
17.12.2012. The authenticity of the CDR is proved under Section 65-B of the
Indian Evidence Act. If the accused was not having a SIM card in his phone
No. 8285947545, then how could he have called from this SIM on 15.12.2012,
then on 16.12.2012 and in the morning of 17.12.2012 till about 8:23:42 p.m.

258. The accused rather said that his SIM and memory card were not
in his phone when it was returned by his friend Vipin and that the phone
was not with him at 9:55:21 when it registered a call for 58 seconds and
when his location was found near IGI Airport, i.e., the road covered by the
Route Map, Ex.PW-80/H, where the bus, Ex.P1, was moving on that night.
Further, if as per accused Vinay Sharma he had no memory card and SIM card
in his mobile phone, then the question of making of a video clip from his
mobile phone by his friend DW-10, Shri Ram Babu, does not arise. Even his
personal search memo Ex.PW-60/D does not show that the said mobile phone,
when seized, had any memory card in it. The intention of the accused
appears to be to wriggle himself out of explaining the receipt of call on
his mobile at 9:55 p.m. on 16.12.2012.

259. After referring to the decision in Ram Singh and others v. Col.
Ram Singh[101], the trial Court has held that accused Vinay had miserably
failed to prove the authenticity of the video clip in terms of the above
judgment. The accused had failed to show if DW-10, Ram Babu, aged 15 years,
was ever competent to record the clip and how such device was preserved.
Admittedly by him, the memory card was not in the phone when returned to
him by his friend, Vipin. It is also not shown in the seizure memo Ex.PW-
60/D that the mobile, Ex.DW-10/1, was seized along with memory card. Thus,
it raises a doubt as to how and by whom this memory card was later inserted
in his phone, Ex.DW-10/1, and how and when the video clip was taken and
whether there was any tampering, etc. and thus, the compliance of Section
65-B of the Indian Evidence Act was mandatory in these circumstances to
ensure the purity of the evidence and in its absence, it would be difficult
to rely upon such evidence.

260. Even otherwise, in the alternative, the properties of mobile
Ex.DW-10/1 show the timing of the video clip as 8:16 p.m. of 16.12.2012
which is patently false because as per the defence witnesses, accused Vinay
Sharma with his family had left Ravi Dass Camp at 8:00/8:30 p.m. and as per
Smt. Champa Devi, DW-5, it takes about one hour on foot to reach the DDA
District Park and, thus, even if we believe their theory, then also accused
Vinay Sharma and accused Pawan Gupta @ Kaalu were not in the park at 8:16
p.m. on 16.12.2012.

261. Vinay Sharma’s mother, Smt. Champa Devi, DW-5, deposed that her
son, accused Vinay Sharma, had gone to meet accused Ram Singh (since
deceased), about 8:00 p.m. on 16.12.2012 and he had a quarrel with Ram
Singh, he was beaten and then the accused returned to his jhuggi.
Thereafter, accused Vinay Sharma accompanied her to DDA District Park, Hauz
Khas, Opposite IIT Gate, New Delhi to watch a musical programme and stayed
in the park till late in the night. His mother does not speak if her
husband had also accompanied her to the said DDA District Park but DW-6
deposed that his son had returned about 8:00 p.m. after the quarrel and
then they had gone to the said DDA District Park. DW-7, Shri Kishore Kumar
Bhat, also deposed that about 8:00/8:30 p.m., he was in his jhuggi when the
father of accused Vinay Sharma with his children came to his jhuggi and
they all went to DDA District Park. He has also stated that a musical
programme was organized by St. Thomas Church, Sector-2, R.K. Puram, New
Delhi, in the said DDA District Park, Hauz Khas, on that night.

262. DW-9, Shri Manu Sharma, deposed that he went with accused Vinay
Sharma to reason with accused Ram Singh (since deceased) but accused Vinay
Sharma had stated that his brother had accompanied him to meet accused Ram
Singh (since deceased). Further, DW-9, Manu Sharma, stated that he had
accompanied accused Vinay Sharma to the musical event but accused Vinay
Sharma did not say so.

263. Hence, as per the statement of accused Vinay Sharma (under
Section 313 CrPC) and as per the statements of the defence witnesses,
accused Vinay Sharma and his family with accused Pawan Gupta @ Kaalu had
left Ravi Dass Camp about 8:15 p.m. to 8:30 p.m. and as per DW-5, Smt.
Champa Devi, it takes about an hour to reach the DDA District Park, Hauz
Khas, on foot, so even according to them, they allegedly reached the park
about 9:15 p.m. or 9:30 p.m. Thus, from this angle too, the video clip
showing the accused in the park on 16.12.2012 about 8:16 p.m. appears to
have been tampered.

264. PW-83, Shri Angad Singh, the Deputy Director (Horticulture),
DDA, had deposed that no such permission was ever granted by any authority
to organize any such function in the evening of 16.12.2012 in the said DDA
District Park, Hauz Khas, New Delhi and that no function was ever organized
in the park on 16.12.2012 by anyone. PW-84, Father George Manimala of St.
Thomas Church, as also PW-85, Brother R.P. Samual, Secretary, Ebenezer
Assembly Church, deposed that their Church(es) never organized any musical
programme/event in the DDA District Park, Hauz Khas, in the evening of
Sunday, i.e., on 16.12.2012. Rather, they deposed that on Sundays, there is
always a mass prayer in the church and there is no question of organizing
any programme outside the Church premises and that even otherwise, they
have their own space/lawn within the Church premises where they can hold
such type of programmes/functions.

265. Though Shri Singh, learned counsel for the respective
appellants, tried to press upon a document, Ex.PW-84/B, a programme
pamphlet of St. Thomas Church wherein it was mentioned that the Church was
holding programmes of “Carol Singing” from 10.12.2012 to 23.12.2012 at 7:00
p.m. at public places, yet in view of the categorical denial by PW-84 and
PW-85 that any such programme was organized by the Church on 16.12.2012 in
the DDA District Park, opposite IIT Gate, Hauz Khas, New Delhi, the plea
has no substance.

266. It is settled in law that while raising a plea of ‘alibi’, the
burden squarely lies upon the accused person to establish the plea
convincingly by adducing cogent evidence. The plea of ‘alibi’ that accused
Vinay Sharma and accused Pawan Gupta @ Kaalu had attended the alleged
musical programme in the evening of 16.12.2012 in the DDA District Park,
Hauz Khas, opposite IIT Gate, New Delhi, has been rightly rejected by the
trial court which has been given the stamp of approval by the High Court.

Criminal conspiracy

267. The next aspect that we intend to address pertains to criminal
conspiracy. The accused persons before us were charge-sheeted for the
offence of criminal conspiracy within the meaning of Section 120A IPC apart
from other offences. The trial court found all the accused guilty of the
offence under Section 120B IPC and awarded life imprisonment alongwith a
fine of Rs. 5,000/- to each of the convicts. The High Court has also
affirmed their conviction under Section 120B after recording concurrent
findings.

268. Before analysing the present facts with reference to Section
120A IPC in order to find out whether the charge of criminal conspiracy is
proved in respect of each of the accused, it is pertinent to note the
actual nature and purport of Section 120A IPC and allied provisions.
Section 120A IPC as contained in Chapter V-A defines the offence of
criminal conspiracy. The provision was inserted in the IPC by virtue of
Criminal Law (Amendment) Act, 1913. Section 120A IPC reads as under:
“120A. Definition of criminal conspiracy:- When two or more persons agree
to do, or cause to be done,- (1) an illegal act, or (2) an act which is not
illegal by illegal means, such an agreement is designated a criminal
conspiracy: Provided that no agreement except an agreement to commit an
offence shall amount to a criminal conspiracy unless some act besides the
agreement is done by one or more parties to such agreement in pursuance
thereof.

Explanation- It is immaterial whether the illegal act is the ultimate
object of such agreement, or is merely incidental to that object.”

269. Section 120B being pertinent is reproduced below:

“120B. Punishment of criminal conspiracy –
(1) Whoever is a party to a criminal conspiracy to commit an offence
punishable with death, imprisonment for life or rigorous imprisonment for a
term of two years or upwards, shall, where no express provision is made in
this Code for the punishment of such a conspiracy, be punished in the same
manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal
conspiracy to commit an offence punishable as aforesaid shall be punished
with imprisonment of either description for a term not exceeding six
months, or with fine or with both.”

270. The underlying purpose for the insertion of Sections 120A and
120B IPC was to make a mere agreement to do an illegal act or an act which
is not illegal by illegal means punishable under law. The criminal
thoughts in the mind when take concrete shape of an agreement to do or
cause to be done an illegal act or an act which is not illegal by illegal
means than even if nothing further is done an agreement is designated as a
criminal conspiracy. The proviso to Section 120A engrafts a limitation
that no agreement except an agreement to commit an offence shall amount to
a criminal conspiracy unless some act besides the agreement is done by one
or more parties to such agreement in pursuance thereof.

271. By insertion of Chapter V-A in IPC, the understanding of
criminal conspiracy in the Indian context has become akin to that in
England. The illegal act may or may not be done in pursuance of an
agreement but the mere formation of an agreement is an offence and is
punishable. The law relating to conspiracy in England has been put forth in
Halsbury’s Laws of England (vide 5th Ed. Vol.25, page 73) as under:

“73. Matters common to all conspiracies. There are statutory common law
offences of conspiracy. The essence of the offences of both statutory and
common law conspiracy is the fact of combination by agreement. The
agreement may be express or implied, or in part express and in part
implied. The conspiracy arises and the offence is committed as soon as the
agreement is made; and the offence continues to be committed so long as the
combination persists, that is until the conspiratorial agreement is
terminated by completion of its performance or by abandonment or
frustration or however it may be. The actus reus in a conspiracy is
therefore the agreement for the execution of the unlawful conduct, not the
execution of it. It is not enough that two or more persons pursued the same
unlawful object at the same time or in the same place; it is necessary to
show a meeting of minds, a consensus to effect an unlawful purpose. It is
not, however, necessary that each conspirator should have been in
communication with every other.”

272. The English law on ‘conspiracy’ has been succinctly explained
by Russell on Crimes (12th Ed. Vol. 1 page 202) in the following passage:
“The gist of the offence of conspiracy then lies, not in doing the act, or
effecting the purpose for which the conspiracy is formed, nor in attempting
to do them, nor in inciting others to do them, but in the forming of the
scheme or agreement between the parties. Agreement is essential. Mere
knowledge, or even discussion, of the plan is not, per se enough.”

273. Coleridge J. in R. v. Murphy[102] explained ‘conspiracy’ in the
following words:

“… I am bound to tell you, that although the common design is the root of
the charge, it is not necessary to prove that these two parties came
together and actually agreed in terms to have this common design, and to
pursue it by common means, and so to carry it into execution. This is not
necessary, because in any cases of the most clearly established
conspiracies there are no means of proving any such thing and neither law
nor common sense requires that it should be proved. If you find that these
two persons pursued by their acts the same object, often by the same means,
one performing one part of an act, and the other another part of the same
act, so as to complete it, with a view to the attainment of the object
which they were pursuing, you will be at liberty to draw the conclusion
that they have been engaged in a conspiracy to effect that object. The
question you have to ask yourselves is, ‘had they this common design, and
did they pursue it by these common means the design being unlawful?”

274. Lord Brampton of the House of Lords in Quinn v. Leatham[103]
had aptly defined conspiracy which definition was engrafted in Sections
120A and 120B IPC. Following was stated by the House of Lords:
“‘A conspiracy consists not merely in the intention of two or more, but in
the agreement of two or more, to do an unlawful act, or to do a lawful act
by unlawful means. So long as such a design rests in intention only, it is
not indictable. When two agree to carry it into effect, the very plot is an
act in itself, and the act of each of the parties, promise against promise,
actus contra actum, capable of being enforced, if lawful; and punishable of
for a criminal object, or for the use of criminal means’.”

275. A perusal of the above shows that in order to constitute an
offence of criminal conspiracy, two or more persons must agree to do an
illegal act or an act which if not illegal by illegal means. This Court on
several occasions has explained and elaborated the element of conspiracy as
contained in our penal law. In Noor Mohammad Mohd. Yusuf Momin vs State of
Maharashtra[104], this Court has observed:

“Criminal conspiracy postulates an agreement between two or more persons to
do, or cause to be done an illegal act or an act which is not illegal, by
illegal means. It differs from other offences in that mere agreement is
made an offence even if no step is taken to carry out that agreement.
Though there is close association of conspiracy with incitement and
abetment the substantive offence of criminal conspiracy is somewhat wider
in amplitude than abetment by conspiracy as contemplated by Section
107, I.P.C. A conspiracy from its very nature is generally hatched in
secret. It is, therefore, extremely rare that direct evidence in proof of
conspiracy can be forthcoming from wholly disinterested, quarters or from
utter strangers. But, like other offences, criminal conspiracy can be
proved by circumstantial evidence.”

276. In E.G. Barsay v. State of Bombay[105], the following was
stated:

”…… The gist of the offence is an agreement to break the law. The parties
to such an agreement will be guilty of criminal conspiracy, though the
illegal act agreed to be done has not been done. So too, it is not an
ingredient of the offence that all the parties should agree to do a single
illegal act. It may comprise the commission of a number of acts. Under
Section 43 of the Indian Penal Code, an act would be illegal if it is an
offence or if it is prohibited by law. Under the first charge the accused
are charged with having conspired to do three categories of illegal acts,
and the mere fact that all of them could not be convicted separately in
respect of each of the offences has no relevancy in considering the
question whether the offence of conspiracy has been committed. They are all
guilty of the offence of conspiracy to do illegal acts, though for
individual offences all of them may not be liable.

277. A three-Judge Bench in Yash Pal Mittal v. State of Punjab[106]
had noted the ingredients of the offence of criminal conspiracy and held:
“10. The main object of the criminal conspiracy in the first charge is
undoubtedly cheating by personation. The other means adopted, inter alia,
are preparation or causing to be prepared spurious passports; forging or
causing to be forged entries and endorsements in that connection; and use
of or causing to be used forged passports as genuine in order to facilitate
travel of persons abroad. The final object of the conspiracy in the first
charge being the offence of cheating by personation, as we find, the other
offences described therein are steps, albeit, offences themselves, in aid
of the ultimate crime. The charge does not connote plurality of objects of
the conspiracy. That the appellant himself is not charged with the ultimate
offence, which is the object of the criminal conspiracy, is beside the
point in a charge under Section 120-B IPC as long as he is a party to the
conspiracy with the end in view. Whether the charges will be ultimately
established against the accused is a completely different matter within the
domain of the trial court.

11. The principal object of the criminal conspiracy in the first charge is
thus “cheating by personation”, and without achieving that goal other acts
would be of no material use in which any person could be necessarily
interested. That the appellant himself does not personate another person is
beside the point when he is alleged to be a collaborator of the conspiracy
with that object. We have seen that some persons have been individually and
specifically charged with cheating by personation under Section 419 IPC.
They were also charged along with the appellant under Section 120-B IPC.
The object of criminal conspiracy is absolutely clear and there is no
substance in the argument that the object is merely to cheat simpliciter
under Section 417, IPC.”

278. Certainly, entering into an agreement by two or more persons to
do an illegal act or legal act by illegal means is essential to the offence
of criminal conspiracy as has been rightly emphasized by this Court in
Kehar Singh and Ors. v. State (Delhi Administration)[107]. In the said
case, the court further stressed upon the relevance of circumstantial
evidence in proving conspiracy as direct evidence in such cases is almost
impossible to adduce.

279. In the said case, K. Jagannatha Shetty, J., in his concurring
opinion, has also elaborated the concept of conspiracy to the following
effect:

“274. It will be thus seen that the most important ingredient of the
offence of conspiracy is the agreement between two or more persons to do an
illegal act. The illegal act may or may not be done in pursuance of
agreement, but the very agreement is an offence and is punishable.
Reference to Sections 120-A and 120-B IPC would make these aspects clear
beyond doubt. Entering into an agreement by two or more persons to do an
illegal act or legal act by illegal means is the very quintessence of the
offence of conspiracy.

275. Generally, a conspiracy is hatched in secrecy and it may be difficult
to adduce direct evidence of the same. The prosecution will often rely on
evidence of acts of various parties to infer that they were done in
reference to their common intention. The prosecution will also more often
rely upon circumstantial evidence. The conspiracy can be undoubtedly proved
by such evidence direct or circumstantial. But the court must enquire
whether the two persons are independently pursuing the same end or they
have come together in the pursuit of the unlawful object. The former does
not render them conspirators, but the latter does. It is, however,
essential that the offence of conspiracy requires some kind of physical
manifestation of agreement. The express agreement, however, need not be
proved. Nor actual meeting of two persons is necessary. Nor it is necessary
to prove the actual words of communication. The evidence as to transmission
of thoughts sharing the unlawful design may be sufficient. Gerald Orchard
of University of Canterbury, New Zealand explains the limited nature of
this proposition:

“Although it is not in doubt that the offence requires some physical
manifestation of agreement, it is important to note the limited nature of
this proposition. The law does not require that the act of agreement take
any particular form and the fact of agreement may be communicated by words
or conduct. Thus, it has been said that it is unnecessary to prove that the
parties ‘actually came together and agreed in terms’ to pursue the unlawful
object; there need never have been an express verbal agreement, it being
sufficient that there was ‘a tacit understanding between conspirators as to
what should be done’.”

276. I share this opinion, but hasten to add that the relative acts or
conduct of the parties must be conscientious and clear to mark their
concurrence as to what should be done. The concurrence cannot be inferred
by a group of irrelevant facts artfully arranged so as to give an
appearance of coherence. The innocuous, innocent or inadvertent events and
incidents should not enter the judicial verdict. We must thus be strictly
on our guard.”

280. In Saju v. State of Kerala[108], explaining the concept of
conspiracy, this Court stated the following:

“7. To prove the charge of criminal conspiracy the prosecution is required
to establish that two or more persons had agreed to do or caused to be
done, an illegal act or an act which is not legal, by illegal means. It is
immaterial whether the illegal act is the ultimate object of such crime or
is merely incidental to that object. To attract the applicability of
Section 120-B it has to be proved that all the accused had the intention
and they had agreed to commit the crime. There is no doubt that conspiracy
is hatched in private and in secrecy for which direct evidence would rarely
be available…

10. It has thus to be established that the accused charged with criminal
conspiracy had agreed to pursue a course of conduct which he knew was
leading to the commission of a crime by one or more persons to the
agreement, of that offence. Besides the fact of agreement the necessary
mens rea of the crime is also required to be established.”

281. In Mir Nagvi Askari v. Central Bureau of Investigation[109],
this Court reiterated the various facets of ‘criminal conspiracy’ and laid
down as follows:

“60. Criminal conspiracy, it must be noted in this regard, is an
independent offence. It is punishable separately. A criminal conspiracy
must be put to action; for so long as a crime is generated in the mind of
the accused, the same does not become punishable. Thoughts even criminal in
character, often involuntary, are not crimes but when they take a concrete
shape of an agreement to do or caused to be done an illegal act or an act
which is not illegal, by illegal means then even if nothing further is
done, the agreement would give rise to a criminal conspiracy.

61. The ingredients of the offence of criminal conspiracy are:

(i) an agreement between two or more persons;

(ii) an agreement must relate to doing or causing to be done either (a) an
illegal act; (b) an act which is not illegal in itself but is done by
illegal means.

Condition precedent for holding the accused persons to be guilty of a
charge of criminal conspiracy must, therefore, be considered on the anvil
of the fact which must be established by the prosecution viz. meeting of
minds of two or more persons for doing or causing to be done an illegal act
or an act by illegal means.

62. The courts, however, while drawing an inference from the materials
brought on record to arrive at a finding as to whether the charges of the
criminal conspiracy have been proved or not, must always bear in mind that
a conspiracy is hatched in secrecy and it is difficult, if not impossible,
to obtain direct evidence to establish the same. The manner and
circumstances in which the offences have been committed and the accused
persons took part are relevant. For the said purpose, it is necessary to
prove that the propounders had expressly agreed to it or caused it to be
done, and it may also be proved by adduction of circumstantial evidence
and/or by necessary implication. (See Mohd. Usman Mohammad Hussain Maniyar
v. State of Maharashtra[110].)

282. In Pratapbhai Hamirbhai Solanki v. State of Gujrat and
another[111], this Court explained the ingredients of ‘criminal conspiracy’
as under:

“21. At this stage, it is useful to recapitulate the view this Court has
expressed pertaining to criminal conspiracy. In Damodar v. State of
Rajasthan[112], a two-Judge Bench after referring to the decision in Kehar
Singh v. State (Delhi Admn.) and State of Maharashtra v. Som Nath
Thapa[113], has stated thus:

“15. … The most important ingredient of the offence being the agreement
between two or more persons to do an illegal act. In a case where criminal
conspiracy is alleged, the court must inquire whether the two persons are
independently pursuing the same end or they have come together to pursue
the unlawful object. The former does not render them [pic]conspirators but
the latter does. For the offence of conspiracy some kind of physical
manifestation of agreement is required to be established. The express
agreement need not be proved. The evidence as to the transmission of
thoughts sharing the unlawful act is not (sic*) sufficient. A conspiracy is
a continuing offence which continues to subsist till it is executed or
rescinded or frustrated by choice of necessity. During its subsistence
whenever any one of the conspirators does an act or a series of acts, he
would be held guilty under Section 120-B of the Penal Code, 1860.”

22. In Ram Narayan Popli v. CBI[114] while dealing with the conspiracy the
majority opinion laid down that:

“342. … The elements of a criminal conspiracy have been stated to be: (a)
an object to be accomplished, (b) a plan or scheme embodying means to
accomplish that object, (c) an agreement or understanding between two or
more of the accused persons whereby, they become definitely committed to
cooperate for the accomplishment of the object by the means embodied in the
agreement, or by any effectual means, and (d) in the jurisdiction where the
statute required an overt act.”

It has been further opined that:

“342. … The essence of a criminal conspiracy is the unlawful combination
and ordinarily the offence is complete when the combination is framed. … no
overt act need be done in furtherance of the conspiracy, and that the
object of the combination need not be accomplished, in order to constitute
an indictable offence. Law making conspiracy a crime is designed to curb
immoderate power to do mischief which is gained by a combination of the
means. The encouragement and support which co-conspirators give to one
another rendering enterprises possible which, if left to individual effort,
would have been impossible, furnish the ground for visiting conspirators
and abettors with condign punishment. The conspiracy is held to be
continued and renewed as to all its members wherever and whenever any
member of the conspiracy acts in furtherance of the common design.”

The two-Judge Bench proceeded to state that:

“342. … For an offence punishable under Section 120-B, the prosecution need
not necessarily prove that the perpetrators expressly agree to do or cause
to be done illegal act; the agreement may be proved by necessary
implication. Offence of criminal conspiracy has its foundation in an
agreement to commit an offence. A conspiracy consists not merely in the
intention of two or more, but in the agreement of two or more to do an
unlawful act by unlawful means.”

23. In the said case it has been highlighted that in the case of conspiracy
there cannot be any direct evidence. The ingredients of offence are that
there should be an agreement between persons who are alleged to conspire
and the said agreement should be for doing an illegal act or for doing by
illegal means an act which itself may not be illegal. Therefore, the
essence of criminal conspiracy is an agreement to do an illegal act and
such an agreement can be proved either by direct evidence or by
circumstantial evidence or by both, and it is a matter of common experience
that direct evidence to prove conspiracy is rarely available. Therefore,
the circumstances proved before, during and after the occurrence have to be
considered to decide about the complicity of the accused.”

283. As already stated, in a criminal conspiracy, meeting of minds
of two or more persons for doing an illegal act is the sine qua non but
proving this by direct proof is not possible. Hence, conspiracy and its
objective can be inferred from the surrounding circumstances and the
conduct of the accused. Moreover, it is also relevant to note that
conspiracy being a continuing offence continues to subsist till it is
executed or rescinded or frustrated by the choice of necessity. In K. R.
Purushothaman  v. State of Kerala[115], the Court has made the following
observations with regard to the formation and rescission of an agreement
constituting criminal conspiracy:

“To constitute a conspiracy, meeting of minds of two or more persons for
doing an illegal act or an act by illegal means is the first and primary
condition and it is not necessary that all the conspirators must know each
and every detail of the conspiracy. Neither is it necessary that every one
of the conspirators takes active part in the commission of each and every
conspiratorial acts. The agreement amongst the conspirators can be inferred
by necessary implication. In most of the cases, the conspiracies are proved
by the circumstantial evidence, as the conspiracy is seldom an open affair.
The existence of conspiracy and its objects are usually deduced from the
circumstances of the case and the conduct of the accused involved in the
conspiracy. While appreciating the evidence of the conspiracy, it is
incumbent on the court to keep in mind the well-known rule governing
circumstantial evidence viz. each and every incriminating circumstance must
be clearly established by reliable evidence and the circumstances proved
must form a chain of events from which the only irresistible conclusion
about the guilt of the accused can be safely drawn, and no other hypothesis
against the guilt is possible. Criminal conspiracy is an independent
offence in the Penal Code. The unlawful agreement is sine qua non for
constituting offence under the Penal Code and not an accomplishment.
Conspiracy consists of the scheme or adjustment between two or more persons
which may be express or implied or partly express and partly implied. Mere
knowledge, even discussion, of the plan would not per se constitute
conspiracy. The offence of conspiracy shall continue till the termination
of agreement.”

284. After referring to a catena of judicial pronouncements and
authorities, a three-Judge Bench of this Court in State through
Superintendent of Police, CBI/SIT v. Nalini and others[116] summarised the
principles relating to criminal conspiracy as under:
“Some of the broad principles governing the law of conspiracy may be
summarized though, as the name implies, a summary cannot be exhaustive of
the principles.

“1. Under Section 120A IPC offence of criminal conspiracy is committed when
two or more persons agree to do or cause to be done an illegal act or legal
act by illegal means. When it is legal act by illegal means overt act is
necessary. Offence of criminal conspiracy is exception to the general law
where intent alone does not constitute crime. It is intention to commit
crime and joining hands with persons having the same intention. Not only
the intention but there has to be agreement to carry out the object of the
intention, which is an offence. The question for consideration in a case is
did all the accused had the intention and did they agree that the crime be
committed. It would not be enough for the offence of conspiracy when some
of the accused merely entertained a wish, howsoever, horrendous it may be,
that offence be committed.

2. Acts subsequent to the achieving of object of conspiracy may tend to
prove that a particular accused was party to the conspiracy. Once the
object of conspiracy has been achieved, any subsequent act, which may be
unlawful, would not make the accused a part of the conspiracy like giving
shelter to an absconder.

3. Conspiracy is hatched in private or in secrecy. It is rarely possible to
establish a conspiracy by direct evidence. Usually, both the existence of
the conspiracy and its objects have to be inferred from the circumstances
and the conduct of the accused.

4. Conspirators may, for example, be enrolled in a chain – A enrolling B, B
enrolling C, and so on; and all will be members of a single conspiracy if
they so intend and agree, even though each member knows only the person who
enrolled him and the person whom he enrolls. There may be a kind of
umbrella-spoke enrollment, where a single person at the center doing the
enrolling and all the other members being unknown to each other, though
they know that there are to be other members. These are theories and in
practice it may be difficult to tell whether the conspiracy in a particular
case falls into which category. It may, however, even overlap. But then
there has to be present mutual interest. Persons may be members of single
conspiracy even though each is ignorant of the identity of many others who
may have diverse role to play. It is not a part of the crime of conspiracy
that all the conspirators need to agree to play the same or an active role.

5. When two or more persons agree to commit a crime of conspiracy, then
regardless of making or considering any plans for its commission, and
despite the fact that no step is taken by any such person to carry out
their common purpose, a crime is committed by each and every one who joins
in the agreement. There has thus to be two conspirators and there may be
more than that. To prove the charge of conspiracy it is not necessary that
intended crime was committed or not. If committed it may further help
prosecution to prove the charge of conspiracy.

6. It is not necessary that all conspirators should agree to the common
purpose at the same time. They may join with other conspirators at any time
before the consummation of the intended objective, and all are equally
responsible. What part each conspirator is to play may not be known to
everyone or the fact as to when a conspirator joined the conspiracy and
when he left.

7. A charge of conspiracy may prejudice the accused because it is forced
them into a joint trial and the court may consider the entire mass of
evidence against every accused. Prosecution has to produce evidence not
only to show that each of the accused has knowledge of object of conspiracy
but also of the agreement. In the charge of conspiracy court has to guard
itself against the danger of unfairness to the accused. Introduction of
evidence against some may result in the conviction of all, which is to be
avoided. By means of evidence in conspiracy, which is otherwise
inadmissible in the trial of any other substantive offence prosecution
tries to implicate the accused not only in the conspiracy itself but also
in the substantive crime of the alleged conspirators. There is always
difficulty in tracing the precise contribution of each member of the
conspiracy but then there has to be cogent and convincing evidence against
each one of the accused charged with the offence of conspiracy. As observed
by Judge Learned Hand that “this distinction is important today when many
prosecutors seek to sweep within the dragnet of conspiracy all those who
have been associated in any degree whatever with the main offenders”.

8. As stated above it is the unlawful agreement and not its accomplishment,
which is the gist or essence of the crime of conspiracy. Offence of
criminal conspiracy is complete even though there is no agreement as to the
means by which the purpose is to be accomplished. It is the unlawful
agreement, which is the graham of the crime of conspiracy. The unlawful
agreement which amounts to a conspiracy need not be formal or express, but
may be inherent in and inferred from the circumstances, especially
declarations, acts, and conduct of the conspirators. The agreement need not
be entered into by all the parties to it at the same time, but may be
reached by successive actions evidencing their joining of the conspiracy.

9. It has been said that a criminal conspiracy is a partnership in crime,
and that there is in each conspiracy a joint or mutual agency for the
prosecution of a common plan. Thus, if two or more persons enter into a
conspiracy, any act done by any of them pursuant to the agreement is in
contemplation of law, the act of each of them and they are jointly
responsible therefore. This means that everything said, written or done by
any of the conspirators in execution or furtherance of the common purpose
is deemed to have been said, done, or written by each of them. And this
joint responsibility extends not only to what is done by any of the
conspirators pursuant to the original agreement but also to collateral acts
incident to and growing out of the original purpose. A conspirator is not
responsible, however, for acts done by a co-conspirator after termination
of the conspiracy. The joinder of a conspiracy by a new member does not
create a new conspiracy nor does it change the status of the other
conspirators, and the mere fact that conspirators individually or in groups
perform different tasks to a common end does not split up a conspiracy into
several different conspiracies.

10. A man may join a conspiracy by word or by deed. However, criminal
responsibility for a conspiracy requires more than a merely passive
attitude towards an existing conspiracy. One who commits an overt act with
knowledge of the conspiracy is guilty. And one who tacitly consents to the
object of a conspiracy and goes along with other conspirators, actually
standing by while the others put the conspiracy into effect, is guilty
though he intends to take no active part in the crime.”

285. The rationale of conspiracy is that the required objective
manifestation of disposition of criminality is provided by the act of
agreement. Conspiracy is a clandestine activity. Persons generally do not
form illegal covenants openly. In the interest of security, a person may
carry out his part of a conspiracy without even being informed of the
identity of his co-conspirators. An agreement of this kind can rarely be
shown by direct proof; it must be inferred from the circumstantial evidence
of co-operation between the accused. What people do is, of course,
evidence of what lies in their minds. To convict a person of conspiracy,
the prosecution must show that he agreed with others that they would
together accomplish the unlawful object of the conspiracy. [See: Firozuddin
Basheeruddin and others v. State of Kerala[117]]

286. In Suresh Chandra Bahri v. State of Bihar[118], this Court
reiterated that the essential ingredient of criminal conspiracy is the
agreement to commit an offence. After referring to the judgments in Noor
Mohd. Mohd. Yusuf Momi (supra) and V.C. Shukla v. State (Delhi Admn.)[119],
it was held in S.C. Bahri (supra) as under:

“[A] cursory look to the provisions contained in Section 120-A reveals that
a criminal conspiracy envisages an agreement between two or more persons to
commit an illegal act or an act which by itself may not be illegal but the
same is done or executed by illegal means. Thus the essential ingredient of
the offence of criminal conspiracy is the agreement to commit an offence.
In a case where the agreement is for accomplishment of an act which by
itself constitutes an offence, then in that event no overt act is necessary
to be proved by the prosecution because in such a fact-situation criminal
conspiracy is established by proving such an agreement. In other words,
where the conspiracy alleged is with regard to commission of a serious
crime of the nature as contemplated in Section 120-B read with the proviso
to sub-section (2) of Section 120-A IPC, then in that event mere proof of
an agreement between the accused for commission of such a crime alone is
enough to bring about a conviction under Section 120-B and the proof of any
overt act by the accused or by any one of them would not be necessary. The
provisions in such a situation do not require that each and every person
who is a party to the conspiracy must do some overt act towards the
fulfilment of the object of conspiracy, the essential ingredient being an
agreement between the conspirators to commit the crime and if these
requirements and ingredients are established the act would fall within the
trapping of the provisions contained in Section 120-B since from its very
nature a conspiracy must be conceived and hatched in complete secrecy,
because otherwise the whole purpose may be frustrated and it is common
experience and goes without saying that only in very rare cases one may
come across direct evidence of a criminal conspiracy to commit any crime
and in most of the cases it is only the circumstantial evidence which is
available from which an inference giving rise to the conclusion of an
agreement between two or more persons to commit an offence may be
legitimately drawn.”

287. From the law discussed above, it becomes clear that the
prosecution must adduce evidence to prove that:

the accused agreed to do or caused to be done an act;

such an act was illegal or was to be done by illegal means within the
meaning of IPC;

irrespective of whether some overt act was done by one of the accused in
pursuance of the agreement.

288. In the case at hand, the prosecution has examined PW-82 to
prove the charges of conspiracy and for further identification of all the
accused persons in the bus on the date of the incident. He has also been
presented to support the prosecution case that immediately preceding the
fateful incident, all the accused persons had, in execution of their
conspiracy, been robbing/merry-making with passengers on the road.

289. The defence has controverted the testimony of PW-82 on several
aspects which has already been discussed before. It has been alleged that
Ram Adhar, PW-82, is a planted witness who was brought in by the
investigators to fill the lacunae, if any, in their investigation and to
further make a strong case against the accused persons. The defence has
further denied the presence of accused Mukesh at the scene of the crime.
Accused Vinay and accused Akshay have also raised the plea of alibi which
has been dealt with separately by us. Regardless of the fact that we have
found the testimony of PW-82 to be creditworthy, even if the same is not
taken into account for the purpose of establishing that the accused acted
in concert with each other to commit heinous offences against the victim,
the testimony of PW-1 coupled with the dying declarations of the
prosecutrix irrefragably establish the charge under Section 120B against
all the accused persons.

290. First of all, in order to prove the presence of all the accused
on board the bus where the entire incident took place, the prosecution has
relied upon the testimony of PW-1, PW-82, PW-16 and, most importantly, the
dying declarations of the prosecutrix.

291. As per the records, PW-82 has testified to the effect that on
the date of the incident, about 8:30 p.m., he had boarded the concerned bus
from Munirka Bus Stand, New Delhi, on noticing that the conductor of the
bus sought commuters for Khanpur. However, he was later informed that he
would be dropped at Nehru Place instead of Khanpur. When PW-82 tried to get
down the bus, he was wrongfully confined, attacked by the persons inside
the bus who robbed him of his belongings, viz., Rs.1500/- in cash and a
mobile phone, and he was then thrown out of the moving bus. During the
trial, PW-82 has identified all the four accused persons, viz., Akshay
Kumar Singh @ Thakur, Pawan Gupta, Vinay Sharma and accused Mukesh, present
in the concerned bus at the time of the incident. PW-82 had lodged the
complaint on 18.12.2012 on the basis of which FIR No. 414 of 2012 was
registered at P.S. Vasant Vihar, New Delhi under Sections 365, 397, 342
IPC.

292. Learned senior counsel for the State, Mr. Luthra, has submitted
that PW-82 had been examined to establish the conduct of the accused on the
aspect of conspiracy and also to establish the identity of the accused
persons before the trial court. It was further submitted that PW-82, Ram
Adhar, identified all the four accused in the court, namely, Akshay Kumar
Singh @ Thakur, Pawan Gupta, Vinay Sharma and Mukesh besides two others
present inside the bus and also identified Mukesh as driving the bus and
stated that others took him inside the bus and robbed him and attacked him.

293. The contention of the appellants is that the testimony of PW-82
is not bereft of doubt for several reasons, namely, a) delay in lodging
FIR, b) non-examination of Sanjiv Bhai as a witness, c) he has stated that
he heard the person with the burnt hand say “Mukesh, tez chalao”, d) apart
from that, he does not mention that he heard the names of any of the
accused, and e) he had not visited a doctor/hospital despite stating that
he had injuries on his face which prevented him from registering an FIR.

294. Regarding the alleged incident of attack on PW-82 by the
accused, it was submitted that the said case against the accused ended in
conviction and the same is pending in appeal. In respect of the
credibility of the testimony of PW-82 as to the commission of the offence,
we are not inclined to take into account the evidence of PW-82 except on
one limited aspect, that is, the presence of the accused in the bus, Ex.P1,
on the night of 16.12.2012 since PW-82’s presence in the bus on the night
of 16.12.2012 is admitted. In his statement under Section 313 CrPC, Mukesh-
A2 admitted that PW-82 had boarded the offending bus prior to the boarding
of the bus by the informant and the victim. The relevant portion of his
statement is extracted as under:

“Q.211: It is in evidence against you that PW82 Shri Ram Adhar deposed that
on 16.12.2012 after finishing his carpenter’s work at a shop at Munirka
till about 8:30 PM, he boarded a white colour bus from sabji Market across
the road of my work place. The helper of the bus was calling the passenger
by saying “khanpur-khanpur”. As PW82 boarded the bus, one of the occupants
told him that the bus is going to Nehru Place. As PW82 tried to get down,
one person whose one limb was having burn injuries, gave beating to him.
The other person pulled him inside the bus towards the back side and they
all gave beating to him and removed his belongings i.e. one mobile with two
sims and Rs.1500/-. The sim card numbers were 9999095739 and 9971612554.
What do you have to say?

Ans: It is correct that PW82 Shri Ram Adhar had boarded the bus Ex.P1 on
16.12.2012 prior to the boarding of the bus Ex.P1 by the complainant and
the victim. He boarded the bus from Sabji Mandi at Sector-4 on the main
road. He went on the back side of the bus but after sometime he was made
to deboard the bus at IIT flyover by accused Akshay as he had no money to
pay the fare. At that time accused Akshay, accused Ram Singh, since
deceased, accused Vinay accused Pawan along with JCL were present in the
bus and I was driving it.”
[underlining added]

The presence of PW-82 in Ex.P1 bus prior to the boarding of the bus by the
informant, PW-1, and the victim and the presence of all the accused in the
bus is, thus, established by the prosecution.

295. The evidence of PW-81, Dinesh Yadav, the owner of the offending
bus, indicates accused Ram Singh, A-1, (since deceased) as the driver of
the bus and Akshay Kumar as the cleaner of the bus which is further shown
in the attendance register of the bus exhibited as Ex.PW-80/K. The evidence
of PW-81, Dinesh Yadav, is corroborated by the entries made in the
attendance register where in the driver’s page at Sl. No. 5, the name of
accused Ram Singh (since deceased) is written against bus No. 0149 and at
Sl.No. 15, the name of Akshay is written as helper against bus No. 0149.
As stated earlier, the bus bearing Registration No.DL-1PC-0149 was one of
the buses hired by Birla Vidya Niketan School, Pushp Vihar, New Delhi and
the fact that the driver of the bus at the relevant time was Ram Singh is
sought to be proved by the prosecution through the testimony of PW-16,
Rajeev Jakhmola, Manager (Administration) of the said school. The said
witness has testified that one Dinesh Yadav, PW-81, had provided seven
buses to the school including bus bearing No. DL-1PC-0149 for the purpose
of ferrying the children of the school. The driver of this bus was one Ram
Singh, son of Mange Lal. The documents relating to the bus including the
photocopies of the agreement between the school and the bus contractor,
copy of the driving licence of Ram Singh, A-1, and the letter of
termination dated 18.12.2012 with “Yadav Travels” were furnished to the
Investigating Officer, SI Pratibha Sharma, vide his letter dated
25.12.2012, exhibited as Ex.PW-16/A (colly.). From the evidence of PW-16,
Rajeev Jakhmola, it stands proved that the bus in question was routinely
driven by Ram Singh (since deceased). The statement of PW-16, Rajeev
Jakhmola, is corroborated by the testimony of PW-81, Dinesh Yadav.
Significantly, PW-81, Dinesh Yadav, further testified:

“This bus was being parked by accused Ram Singh near his house because this
bus was attached with the school and also with an office as a chartered bus
and that the accused used to pick up the students early in the morning.”

296. The testimony of PW-13, Brijesh Gupta, who was an auto driver
and also resident of jhuggi at Ravi Dass Camp from where the offending bus
was seized is also relevant to prove the presence of the accused in the
bus. He stated in his evidence that A-1, Ram Singh (since deceased), is the
brother of A-2, Mukesh, and that both resided in the jhuggi at Ravi Dass
camp and that Ram Singh used to drive the said bus and park it in the night
near his jhuggi. PW-13, in his evidence, deposed that on the night of
16.12.2012, about 11:30 p.m., when he returned to his jhuggi after plying
his auto, he saw accused Mukesh, A-2, taking water in some can inside a
white colour bus and washing it from inside. He also noticed some clothes
and pieces of curtains being burnt in the fire.

297. In his questioning under Section 313 CrPC, 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 CrPC reads
as under:

“Q2. It is in evidence against you that PW1 further deposed that they
inquired from 4-5 auto rickshaw-walas to take them to Dwarka, but they all
refused. At about 9 PM they reached at Munirka bus stand and found a white
colour bus on which “Yadav” was written. A boy in the bus was calling for
commuters for Dwarka/Palam Mod. PW1 noticed yellow and green line/strips
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”.

Q4: 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; PW1
further identified your co-accused Ram Singh (since deceased), and Akshay
Kumar to be the person who were sitting in the driver’s cabin alongwith 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 PW1 entered the bus;
PW1 has also deposed before the court that the conductor who was calling
him and his friend/prosecutrix to board the bus Ex.P1 was not among the
accused person being tried in this court.

Ans: Accused Pawan and accused Vinay Sharma were sitting on my back side 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.

Q5: It is in evidence against you that after entering the bus PW1 noticed
that seats cover of the bus were of red colour and it had yellow colour
curtains and the windows of the bus had black film on it. The windows were
at quite a height as in luxury buses. As PW1 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. PW1 paid an amount of Rs.20/-
as bus fare to the conductor i.e. Rs.10/- per head. What do you have to
say?

Ans: It is correct that the windows of the bus Ex.P1 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 alongwith Ram Singh had already taken the bus from R.K.Puram. I was
called by Ram Singh on phone to come at Munirka.”

298. A-3, Akshay @ Thakur, in his statement under Section 313 CrPC,
has admitted that he was working with A-1, Ram Singh (since deceased), in
the offending bus, Ex.P1, as a helper. He has also admitted therein that
he had joined A-1, Ram Singh (since deceased), on 03.11.2012. The relevant
portion of his statement under Section 313 CrPC is extracted hereunder:
“Q.210: It is in evidence against you that PW81 Shri Dinesh Yadav is the
owner of the bus Ex.P1 and that he has employed accused Ram Singh, since
deceased, as the driver of the bus in the month of December, 2012 and you
accused Akshay was working as helper in the said bus. Further, he deposed
that on 25.12.2012 he had handed over the documents relating to the bus to
the investigating officer, seized vide memo Ex.PW80/K. The copy of the
challan and copy of the notice are collectively Ex.P-81/1 and the register
on which “Yadav Travels 2012” is written is Ex.P-81/2. He also identified
the driving license Ex.P-74/1 of his driver, accused Ram Singh, since
deceased. He further deposed that the bus Ex.P1 used to ply in Birla Vidya
Niketan as well as chartered bus and used to take the office-goers from
Delhi and drop them at Noida every morning and evening. What do you have
to say?

Ans: It is correct that I was working as a helper in the bus Ex.P1. I
joined Ram Singh, since deceased as helper on 3.11.2012 but I left the
company of Ram Singh on 15.12.2012 at about 10.30 AM and I left for my
village at 11:30 am and I went to New Delhi Railway Station and I left
Delhi in the train at about 2:30 P.M.”

299. DW-5, Smt. Champa Devi, is the mother of Vinay Sharma, A-4.
She has stated in her evidence that her son, Vinay Sharma, A-4, who
returned home at 4:00 p.m. on 16.12.2012, went in search of A-1 on hearing
about the misbehaviour of A-1, Ram Singh (since deceased), with his sister
and was able to trace him by 8:00 p.m. and that her son Vinay Sharma, A-4,
had quarreled with Ram Singh, A-1. She has deposed in her evidence that her
son Vinay Sharma returned bleeding from his mouth and after some time they
had left to the DDA District Park to attend a musical programme where they
had met A-5, Pawan alias Kaalu, alongwith two others.

300. The prosecution has, thus, established that the accused were
associated with each other. The criminal acts done in furtherance of
conspiracy is established by the sequence of events and the conduct of the
accused. An important facet of the law of conspiracy is that apart from it
being a distinct offence, all conspirators are liable for the acts of each
other of the crime or crimes which have been committed as a result of the
conspiracy. Section 10 of the Indian Evidence Act which reads as under is
relevant in this context:

“10. Things said or done by conspirator in reference to common design.-
Where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything
said, done or written by any one of such persons in reference to their
common intention, after the time when such intention was first entertained
by any one of them, is a relevant fact as against each of the persons
believed to so conspiring, as well for the purpose of proving the existence
of the conspiracy as for the purpose of showing that any such person was a
party to it.”

301. Section 10 of the Indian Evidence Act begins with the phrase
“where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence” which implies that if prima facie
evidence of the existence of a conspiracy is given and accepted, the
evidence of acts and statements made by any one of the conspirators in
furtherance of the common intention is admissible against all. In the facts
of the present case, the prima facie evidence of the existence of
conspiracy is well established.

302. The informant, PW-1, has also deposed as to the clarity of the
entire incident. He has identified all the accused to be present in the bus
when he had boarded the same with the prosecutrix. He has maintained that
he saw three persons sitting in the driver’s cabin who were moving in and
out of the cabin. Both the informant and the prosecutrix had sensed some
sort of hostility and strangeness in the behaviour of the accused. But, as
they had paid for the ticket, they quietly kept sitting. Soon they found
that the lights in the bus were put off and the accused Ram Singh (since
deceased) and accused Akshay came near them to ask where PW1 was heading
with the prosecutrix at that odd time of the evening. PW-1, on objecting to
such a query, was beaten and pinned down by the accused. Thereafter, all
the accused, one after the other, committed rape and unnatural sex on the
prosecutrix using iron rods which has been explicitly described by the
prosecutrix herself in her dying declarations recorded by PW-27, Sub-
Divisional Magistrate, and PW-30, Metropolitan Magistrate. The relevant
portion of the second dying declaration of the prosecutrix as contained in
Ex.PW-27/A is as under:

“Q.09 Iske baad kya hua? Kripya vistaar se bataiye.

Ans.09 Paanch minute baad jab bus Malai Mandir ke pul par chadi toh
conductor ne bus ke darwaze bandh kar diye aur andar ki batiya bujha di aur
mere dost ke paas akar galiyan dene lage aur marne lage. Usko 3-4 logo ne
pakad liya aur mujh ko baki log mujhe bus ke peechey hisey mein le gaye aur
mere kapde faad diye aur bari-2 se rape kiya. Lohey ki rod se mujhe mere
paet par maara aur poore shareer par danto se kata. Is se pehle mere dost
ka saman – mobile phone, purse, credit card debit card, ghadi aadi cheen
liye. But total chhey (6) log the jinhoney bari-bari se oral (oral) vaginal
(through vagina) aur pichhey se (anal) balatkar kiya. In logo ne lohe ki
rod ko mere shareer ke andar vaginal/guptang aur guda (pichhey se) (through
rectum) dala aur phir bahar bhi nikala. Aur mere guptango haath aur lohe ki
rod dal kar mere shareer ke andruni hisson ko bahar nikala aur chot
pahunchayi. Chhey logo ne bari-bari se mere saath kareeb ek ghante tak
balatkar kiya. Chalti huyi bus mein he driver badalta raha taaki woh bhi
balatkar kar sake.”

303. The chain of events described by the prosecutrix in her dying
declarations coupled with the testimonies of the other witnesses clearly
establish that as soon as the informant and the prosecutrix boarded the
bus, the accused persons formed an agreement to commit heinous offences
against the victim. Forcefully having sexual intercourse with the
prosecutrix, one after the other, inserting iron rod in her private parts,
dragging her by her hair and then throwing her out of the bus all establish
the common intent of the accused to rape and murder the prosecutrix. The
trial court has rightly recorded that the prosecutrix’s alimentary canal
from the level of duodenum upto 5 cm of anal sphincter was completely
damaged. It was beyond repair. Causing of damage to the jejunum is
indicative of the fact that the rod was inserted through the vagina and/or
anus upto the level of jejunum. Further, septicemia was the direct result
of multiple internal injuries. Moreover, the prosecutrix has also
maintained in her dying declaration that the accused persons were exhorting
that the prosecutrix had died and she be thrown out of the bus. Ultimately,
both the prosecutrix as well as the informant were thrown out of the moving
bus through the front door by the accused after having failed to throw them
through the rear door. The conduct of the accused in committing heinous
offences with the prosecutrix in concert with each other and thereafter
throwing her out of the bus in an unconscious state alongwith PW-1
unequivocaly bring home the charge under Section 120B in case of each of
them. The criminal acts done in furtherance of the conspiracy is evident
from the acts and also the words uttered during the commission of the
offence. Therefore, we do not have the slightest hesitation in holding that
the trial court and the High Court have correctly considered the entire
case on the touchstone of well-recognised principles for arriving at the
conclusion of criminal conspiracy. The prosecution has been able to unfurl
the case relating to criminal conspiracy by placing the materials on record
and connecting the chain of circumstances. The relevant evidence on record
lead to a singular conclusion that the accused persons are liable for
criminal conspiracy and their confessions to counter the same deserve to be
repelled.

Summary of conclusions:

304. From the critical analysis, keen appreciation of the evidence
and studied scrutiny of the oral evidence and other materials, we arrive at
the following conclusions:

i. The evidence of PW-1 is unimpeachable and it deserves to be relied
upon.

ii. The accused persons alongwith the juvenile in conflict with law were
present in the bus when the prosecutrix and her friend got into the bus.

iii. There is no reason or justification to disregard the CCTV footage,
for the same has been duly proved and it clearly establishes the
description and movement of the bus.

iv. The arrest of the accused persons from various places at different
times has been clearly proven by the prosecution.

v. The personal search, recoveries and the disclosure leading to
recovery are in consonance with law and the assail of the same on the
counts of custodial confession made under torture and other pleas are
highly specious pleas and they do not remotely create a dent in the said
aspects.

vi. The contention raised by the accused persons that the recoveries on
the basis of disclosure were a gross manipulation by the investigating
agency and deserve to be thrown overboard does not merit acceptance.

vii. The relationship between the parties having been clearly established,
their arrest gains more credibility and the involvement of each accused
gains credence.

viii. The dying declarations, three in number, do withstand close scrutiny
and they are consistent with each other.

ix. The stand that the deceased could not have given any dying
declaration because of her health condition has to be repelled because the
witnesses who have stated about the dying declarations have stood embedded
to their version and nothing has been brought on record to discredit the
same. That apart, the dying declaration by gestures has been proved beyond
reasonable doubt.

x. There is no justification in any manner whatsoever to think that PW-1
and the deceased would falsely implicate the accused-appellants and leave
the real culprits.

xi. The dying declarations made by the deceased have received
corroboration from the oral and documentary evidence and also enormously
from the medical evidence.

xii. The DNA profiling, which has been done after taking due care for
quality, proves to the hilt the presence of the accused persons in the bus
and their involvement in the crime. The submission that certain samples
were later on taken from the accused and planted on the deceased to prove
the DNA aspect is noted only to be rejected because it has no legs to stand
upon.

xiii. The argument that the transfusion of blood has the potentiality to
give rise to two categories of DNA or two DNAs is farthest from truth and
there is no evidence on that score. On the contrary, the evidence in
exclusivity points to the matching of the DNA of the deceased with that of
the accused on many aspects. The evidence brought on record with regard to
finger prints is absolutely impeccable and the trial court and the High
Court have correctly placed reliance on the same and we, in our analysis,
have found that there is no reason to disbelieve the same.

xiv. The scientific evidence relating to odontology shows how far the
accused have proceeded and where the bites have been found and definitely,
it is extremely impossible to accept the submission that it has been a
manipulation by the investigating agency to rope in the accused persons.

xv. The evidence brought on record as regards criminal conspiracy stands
established.

In view of the aforesaid summation, the inevitable conclusion is
that the prosecution has proved the charges leveled against the appellants
beyond reasonable doubt.

Sentencing procedure and compliance of Section 235(2) CrPC:

305. Now we shall proceed to sentencing. A submission was raised
that provisions of Section 235(2) CrPC was not complied with. The said
provision reads as follows:

“235. Judgment of acquittal or conviction

(1) …..

(2) If the accused is convicted, the Judge shall, unless he proceeds in
accordance with the provisions of Section 360, hear the accused on the
question of sentence, and then pass sentence on him according to law.”

306. While discussing Section 235(2) CrPC, this Court, in Santa
Singh v. State of Punjab[120], observed as follows:

“4. …. the hearing contemplated by Section 235(2) is not confined merely to
hearing oral submissions, but it is also intended to give an opportunity to
the prosecution and the accused to place before the court facts and
material relating to various factors bearing on the question of sentence
and if they are contested by either side, then to produce evidence for the
purpose of establishing the same.”

307. A three-Judge Bench in Dagdu and others v. State of
Maharashtra[121] considered the object and scope of Section 235(2) CrPC and
held that:

“79. But we are unable to read the judgment in Santa Singh as laying down
that the failure on the part of the Court, which convicts an accused, to
hear him on the question of sentence must necessarily entail a remand to
that Court in order to afford to the accused an opportunity to be heard on
the question us sentence. The Court, on convicting an accused, must
unquestionably hear him on the qustion of sentence. But if, for any reason,
it omits to do so and the accused makes a grievance of it in the higher
court, it would be open to that Court to remedy the breach by giving a
hearing to the accused on the question of sentence. That opportunity has to
be real and effective, which means that the accused must be permitted to
adduce before the Court all the data which he desires to adduce on the
question of sentence. The accused may exercise that right either by
instructing his counsel to make oral submissions to the Court or he may, on
affidavit or otherwise, place in writing before the Court whatever he
desires to place before it on the question of sentence. The Court may, in
appropriate cases, have to adjourn the matter in order to give to the
accused sufficient time to produce the necessary data and to make his
contentions on the question of sentence. That, perhaps, must inevitably
happen where the conviction is recorded for the first time by a higher
court.

80. Bhagwati, J. has observed in his judgment that care ought to be taken
to ensure that the opportunity of a hearing on the question of sentence is
nut abused and turned into an instrument for unduly protracting the
proceedings. The material on which the accused proposes to rely may
therefore, according to the learned Judge, be placed before the Court by
means of an affidavit. Fazal Ali, J., also observes that the courts must be
vigilant to exercise proper control over their proceedings, that the
accused must not be permitted to adopt dilatory tactics under the cover of
the new right and that what Section 235(2) contemplates is a short and
simple opportunity to place the necessary material before the Court. These
observations show that for a proper and effective implementation of the
provision contained in Section 235(2), it is not always necessary to remand
the matter to the court which has recorded the conviction. The fact that in
Santa Singh this Court remanded the matter to the Sessions Court does not
spell out the ratio of the judgment to be that in every such case there has
to be a remand. Remand is an exception, not the rule, and ought therefore
to be avoided as far as possible in the interests of expeditious, though
fair, disposal of cases.”

308. Mr. Raju Ramachandran, learned amicus curiae, submitted that
the sentence passed by the trial court that has been confirmed by the High
Court ought to be set aside as they have not followed the fundamental norms
of sentencing and have not been guided by the paramount beacons of
legislative policy discernible from Section 354(3) and Section 235(2) CrPC.
It is urged by him that the import of Section 235 CrPC is not only to hear
the submissions orally but also to afford an opportunity to the prosecution
and the defence to place the relevant material having bearing on the
question of sentence. Learned amicus curiae would submit that the trial
court as well as the High Court has failed to put any of the accused
persons to notice on the question of imposition of death sentence; that
sufficient time was not granted to reflect on the question of death
penalty; that none of the accused persons were heard in person; that the
learned trial Judge has failed to elicit those circumstances of the accused
which would have a bearing on the question of sentence, especially the
mitigating factors in a case where death penalty is imposed; that no
separate reasons were ascribed for the imposition of death penalty on each
of the accused; and that it was obligatory on the part of the learned trial
Judge to individually afford an opportunity to the accused persons.
Learned amicus curiae would submit that the learned trial Judge has
pronounced the sentence in a routine manner which vitiates the sentence
inasmuch as the solemn duty of the sentencing court has not been kept in
view. Mr. Ramachandran had emphatically put forth that denial of an
individualized sentencing process results in the denial of Articles 14 and
21 of the Constitution of India. Mr. Luthra, learned senior counsel for the
respondent-State, submitted that the learned trial Judge had heard the
accused persons and there has been compliance with Section 235(2) CrPC and
the High Court has appositely concurred with the same.

309. Be it stated, after hearing the learned counsel for the both
sides and the learned amicus curiae, the Court, on 03.02.2017, passed the
following order:

“After the argument for the accused persons by Mr. M.L. Sharma and Mr. A.P.
Singh, learned counsel were advanced, we thought it appropriate to hear the
learned friends of the Court and, accordingly, we have heard Mr. Raju
Ramachandran and Mr. Sanjay R. Hegde, learned senior counsel. It is worthy
to note here that Mr. Hegde, learned senior counsel argued on the
sustainability of the conviction on many a ground and submitted a written
note of submission. Mr. Ramachandran, learned senior counsel, inter alia,
emphasized on the aspect of sentence imposed by the trial court which has
been confirmed under Section 366 Cr.P.C. While arguing with regard to the
imposition of the capital punishment on the accused persons, one of the
main submissions of Mr. Ramachandran was that neither the trial court nor
the High Court has followed the mandate enshrined under Section 235(2) of
the Code of Criminal Procedure. Section 235(2) Cr.P.C. reads as follows:-

“235. Judgment of acquittal or conviction.- (1) After hearing arguments and
points of law (if any), the Judge shall give a judgment in the case. (2) If
the accused is convicted, the Judge shall, unless he proceeds in accordance
with the provisions of section 360, hear the accused on the question of
sentence, and then pass sentence on him according to law.”

Referring to the procedure adopted by the trial court, it was urged by Mr.
Ramachandran that the learned trial Judge had not considered the
aggravating and mitigating circumstances, as are required to be considered
in view of the Constitution Bench decision in Bachan Singh vs. State of
Punjab[122], and further there has been a failure of the substantive law,
inasmuch as there has been weighing of the mitigating or the aggravating
circumstances in respect of each individual accused. Learned senior counsel
contended that Section 235(2) Cr.P.C. is not a mere formality and in a case
when there are more than one accused, it is obligatory on the part of the
learned trial Judge to hear the accused individually on the question of
sentence and deal with him. As put forth by Mr. Ramachandran, the High
Court has also failed to take pains in that regard. To bolster his
submission, he has commended us to the authority in Santa Singh vs. The
State of Punjab. In the said case, Bhagwati, J. dealt with the anatomy of
Section 235 Cr.P.C., the purpose and purport behind it and, eventually,
came to hold that:-

“Law strives to give them social and economic justice and it has,
therefore, necessarily to be weighted in favour of the weak and the
exposed. This is the new law which judges are now called upon to administer
and it is, therefore, essential that they should receive proper training
which would bring about an orientation in their approach and outlook,
stimulate sympathies in them for the vulnerable sections of the community
and inject a new awareness and sense of public commitment in them. They
should also be educated in the new trends in penology and sentencing
procedures so that they may learn to use penal law as a tool for reforming
and rehabilitating criminals and smoothening out the uneven texture of the
social fabric and not as a weapon, fashioned by law, for protecting and
perpetuating the hegemony of one class over the other. Be that as it may,
it is clear that the learned Sessions Judge was not aware of the provision
in section 235(2) and so also was the lawyer of the appellant in the High
Court unaware of it. No inference can, therefore, be drawn from the
omission of the appellant to raise this point, that he had nothing to Say
in regard to the sentence and that consequently no prejudice was caused to
him.”

Thereafter, the learned Judge opined that non-compliance goes to the
very root of the matter and it results in vitiating the sentence imposed.
Eventually, Bhagwati, J. set aside the sentence of death and remanded the
case to the court of session with a direction to pass appropriate sentence
after giving an opportunity to the appellant therein to be heard in regard
to the question of sentence in accordance with the provision contained in
Section 235(2) Cr.P.C. as interpreted by him.

In the concurring opinion, Fazal Ali, J., ruled thus:-

“The last point to be considered is the extent and import of the word
“hear” used in Section 235(2) of the 1973 Code. Does it indicate, that the
accused should enter into a fresh trial by producing oral and documentary
evidence on the question of the sentence which naturally will result in
further delay of the trial? The Parliament does not appear to have intended
that the accused should adopt dilatory tactics under the cover of this new
provision but contemplated that a short and simple opportunity has to be
given to the accused to place materials if necessary by leading evidence
before the Court bearing on the question of sentence and a consequent
opportunity to the prosecution to rebut those materials. The Law Commission
was fully aware of this anomaly and it accordingly suggested thus:

“We are aware that a provision for an opportunity to give evidence in this
respect may necessitate an adjournment; and to avoid delay adjournment, for
the purpose should, ordinarily be for not more than 14 days. It may be so
provided in the relevant clause. It may not be practicable to keep up to
the time-limit suggested by the Law Commission with mathematical accuracy
but the Courts must be vigilant to exercise proper control over the
proceedings so that the trial is not unavoidably or unnecessarily delayed.”

The said decision was considered by a three-Judge Bench in Dagdu and
Others vs. State of Maharashtra (1977) 3 SCC 68. The three-Judge Bench
referred to the law laid down in Santa Singh (supra) and opined that the
mandate of Section 235 (2) Cr.P.C. has to be obeyed in letter and spirit.
However, the larger Bench thought that Santa Singh (supra) does not lay
down as a principle that failure on the part of the Court which convicts an
accused, to hear him on the question of sentence must necessarily entail a
remand to that Court in order to afford the accused an opportunity to be
heard on the question of sentence. Chandrachud, J. (as His Lordship then
was) speaking for the Bench ruled thus:-

“The Court, on convicting an accused, must unquestionably hear him on the
question of sentence. But if, for any reason, it omits to do so and the
accused makes a grievance of it in the higher court, it would be open to
that Court to remedy the breach by giving a hearing to the accused on the
question of sentence. That opportunity has to be real and effective, which
means that the accused must be permitted to adduce before the Court all the
data which he desires to adduce on the question of sentence. The accused
may exercise that right either by instructing his counsel to make oral
submissions to the Court or he may, on affidavit or otherwise, place in
writing before the Court whatever he desires to place before it on the
question of sentence. The Court may, in appropriate cases, have to adjourn
the matter in order to give to the accused sufficient time to produce the
necessary data and to make his contentions on the question of sentence.
That, perhaps, must inevitably happen where the conviction is recorded for
the first time by a higher court.”

It is seemly to note here that Mr. Ramachandran has also commended us
to a three-Judge Bench decision in Malkiat Singh and Others vs. State of
Punjab (1991) 4 SCC 341, wherein the three-Judge Bench ruled that
sufficient time has to be given to the accused or the prosecution on the
question of sentence, to show the grounds on which the prosecution may
plead or the accused may show that the maximum sentence of death may be the
appropriate sentence or the minimum sentence of life imprisonment may be
awarded, as the case may be.

Learned senior counsel has also drawn our attention to a two-Judge
Bench decision in Ajay Pandit alias Jagdish Dayabhai Patel and Another vs.
State of Maharashtra (2012) 8 SCC 43, wherein the matter was remanded to
the High Court. Mr. Ramachandran has drawn our attention to paragraph 47 of
the said authority. It reads as follows:-

“Awarding death sentence is an exception, nor the rule, and only in the
rarest of rare cases, the court could award death sentence. The state of
mind of a person awaiting death sentence and the state of mind of a person
who has been awarded life sentence may not be the same mentally and
psychologically. The court has got a duty and obligation to elicit relevant
facts even if the accused has kept totally silent in such situations. In
the instant case, the High Court has not addressed the issue in the correct
perspective bearing in mind those relevant factors, while questioning the
accused and, therefore, committed a gross error of procedure in not
properly assimilating and understanding the purpose and object behind
Section 235(2) CrPC.”

Having considered all the authorities, we find that there are two modes,
one is to remand the matter or to direct the accused persons to produce
necessary data and advance the contention on the question of sentence.
Regard being had to the nature of the case, we think it appropriate to
adopt the second mode. To elaborate, we would like to give opportunity
before conclusion of the hearing to the accused persons to file affidavits
along with documents stating about the mitigating circumstances. Needless
to say, for the said purpose, it is necessary that the learned counsel, Mr.
M.L. Sharma and his associate Ms. Suman and Mr. A.P. Singh and his
associate Mr. V.P. Singh should be allowed to visit the jail and
communicate with the accused persons and file the requisite affidavits and
materials.

At this juncture, Mr. M.L. Sharma, learned counsel has submitted that
on many a occasion, he has faced difficulty as he had to wait in the jail
to have a dialogue with his clients. Mr. Sidharth Luthra, learned senior
counsel has submitted that if this Court directs, Mr. M.L. Sharma and Mr.
A.P. Singh, learned counsel and their associate Advocates can visit the
jail at 2.45 p.m. each day and they shall be allowed to enter the jail
between 3.00 p.m. to 3.15 p.m. and can spend time till 5.00 p.m. Needless
to say, they can commence their visits from 7th February, 2017, and file
the necessary separate affidavits and documents. After the affidavits are
made ready by the learned counsel for the accused persons, they can
intimate about the same to Mr. Luthra, who in his turn, shall intimate the
same to the Superintendent of Jail, who shall make arrangement for a Notary
so that affidavits can be notarized, treating this as a direction of this
Court. Needless to say, while the learned counsel will be discussing with
the accused persons, the meeting shall be held in separate rooms inside the
jail premises so that they can have a free discussion with the accused
persons. Needless to say, they can reproduce in verbatim what the accused
persons tell them in the affidavit. The affidavits shall be filed by 23rd
February, 2017.

We may hasten to add that after the affidavits come on record, a date
shall be fixed for hearing of the affidavits and pertaining to quantum of
sentence if, eventually, the conviction is affirmed. The learned counsel
for the prosecution, needless to say, is entitled to file necessary
affidavits with regard to the circumstances or reasons for sustenance of
the sentence. Additionally, the prosecution is given liberty to put forth
in the affidavit any refutation, after the copies of the affidavits by the
learned counsel for the accused persons are served on him. For the said
purpose, a week’s time is granted. Needless to say, the matter shall be
heard on sentence, after affidavits from both the sides are brought on
record. The date shall be given at 2.00 p.m. on 6th February, 2017. For the
present, the matter stands adjourned to 4th February, 2017, for hearing.

Let a copy of the order be handed over to Mr. Sidharth Luthra by 4th
February, 2017, who shall get it translated in Hindi and give it to the
Superintendent of Jail, who in his turn, shall hand over it to the accused
persons and, simultaneously, explain the purport and effect of the order.

The Superintendent of Jail is also directed to submit a report with
regard to the conduct of the accused persons while they are in custody.”

310. After passing of the said order, the hearing continued and on
13.02.2017, the following order was passed:

“Mr. A.P. Singh, learned counsel has concluded his arguments. After his
conclusion of the arguments, as per our order, dated 3.2.2017, affidavits
are required to be filed by 23.2.2017. Let the affidavits be filed by that
date. Mr. Siddharth Luthra, learned senior counsel appearing for the State
shall file the affidavit by 2nd March, 2017. Registry is directed to hand
over copies of the affidavits to Mr. K. Parameshwar, learned counsel
assisting Mr. Raju Ramachandran, learned senior counsel and Mr. Anil Kumar
Mishra-I, learned counsel assisting Mr. Sanjay Kumar Hegde, learned senior
counsel (Amicus Curiae).

Mr. Luthra, learned senior counsel shall make arrangements for visit
of Mr. A.P. Singh and Mr. Manohar Lal Sharma, learned counsel for the
petitioners even on Saturday and sunday. He shall intimate our order to the
jail authorities so that they can arrange the visit of Mr. A.P. Singh and
Mr. Manohar Lal Sharma on Saturday and Sunday.

Let the matter be listed on 3.3.2017 for hearing on the question of
sentence, aggravating and mitigating circumstances on the basis of the
materials brought on record by learned counsel for the parties.”

311. In pursuance of the aforesaid order, affidavits on behalf of
the appellants have been filed. It is necessary to note that the learned
counsel for the appellants addressed the Court on the basis of affidavits
on 06.03.2017 and the order passed on that date is extracted hereunder:

“Mr. A.P. Singh, learned counsel has filed affidavits on behalf of the
three accused persons, namely, Pawan Kumar Gupta, Vinay Sharma and Akshay
Kumar Singh and Mr. M.L. Sharma, learned counsel has filed the affidavit on
behalf of Mukesh. Be it noted, Mr. A.P. Singh, learned counsel has filed
the translated version of the affidavits and Mr. Manohar Lal Sharma,
learned counsel has filed the original version in Hindi as well as the
translated one.

At this juncture, Mr. Raju Ramachandran, learned senior counsel who has
been appointed as Amicus Curiae to assist the Court, submitted that two
aspects are required to be further probed to comply with the order dated
3.2.2017 inasmuch as this Court has taken the burden on itself for
compliance of Section 235(2) of the Code of Criminal Procedure. Learned
senior counsel would point out that the affidavit filed by Mukesh does not
cover many aspects, namely, socio-economic background, criminal
antecedents, family particulars, personal habits, education, vocational
skills, physical health and his conduct in the prison.

Mr. Manohar Lal Sharma, learned counsel submits that a report was
asked for from the Superintendent of Jail with regard to the conduct of the
accused persons while they are in custody, but the same has not directly
been filed by the Superintendent of Jail.

Mr. Siddharth Luthra, learned senior counsel for the respondent-
State, would, per contra, contend that he has filed the affidavit and the
affidavit contains the report of the Superintendent of Jail.

In our considered opinion, the Superintendent of Jail should have
filed the report with regard to the conduct of the accused persons since
they are in custody for almost four years. That would have thrown light on
their conduct. Let the report with regard to their conduct be filed by the
Superintendent of Jail in a sealed cover in the Court on the next date of
hearing.

As far as the affidavit filed by Mukesh is concerned, Mr. Sharma,
learned counsel stated that he will keep the aspects which are required to
be highlighted in mind and file a further affidavit within a week hence.

The direction issued on the earlier occasion with regard to the visit of
jail by the learned counsel for the parties shall remain in force till the
next date of hearing.

Let the matter be listed at 2.00 p.m. on 20.3.2017. The report of the
Superintendent of Jail, as directed hereinabove, shall be filed in Court on
that date.”

312. Thereafter, the matter was heard on 20.03.2017 and the
following order came to be passed:

“Mr. M.L. Sharma, learned counsel has filed an additional affidavit
of the petitioner, Mukesh and Mr. A.P. Singh, learned counsel has filed
affidavits for the petitioners, Pawan Kumar Gupta, Vinay Kumar Sharma, and
Akshay Kumar Singh.

Mr. Siddharth Luthra, learned senior counsel has produced two sealed
covers containing the reports submitted by Superintendent of the Central
Jail No.2 and the Superintendent of Central Jail No.4 in respect of the
petitioners who are in the respective jails. Two sealed covers are opened
in presence of the learned counsel for the parties. They be kept on record.

Registry is directed to supply a copy of the aforesaid reports to Mr.
M.L. Sharma and Mr. A.P. Singh, learned counsel for the petitioners.
Registry shall also supply a copy thereof to Mr. K. Parameshwar, learned
counsel assisting Mr. Raju Ramachandran, learned Amicus Curiae and Mr. Anil
Kumar Mishra-I, learned counsel assisting Mr. Sanjay R. Hegde, learned
Amicus Curiae. A copy of the report shall also be handed over to Ms.
Supriya Juneja, learned counsel assisting Mr. Siddharth Luthra, learned
senior counsel, for he does not have a copy as the reports have been
produced before us in the sealed covers.

Mr. Siddharth Luthra, learned senior counsel prays for and is granted three
days time to file a status report and argue the matter.”

Delineation as regards the imposition of sentence

313. Be it noted, we have heard the learned counsel appearing for
the parties, Mr. Luthra, learned senior counsel for the respondent-State,
Mr. Ramachandran and Mr. Hegde on the question of sentence. Before we
advert to the principles for imposition of sentence, we think it
appropriate to deal with the affidavits filed by the accused. For the sake
of convenience, it is necessary to make a summary of the affidavits.

314. Accused Mukesh, A-2, filed his statement, written in his own
hand-writing in Hindi, denying his involvement in the occurrence and
pleading innocence. He stated that on 17.12.2012, he was picked up from his
house at Karoli, Rajasthan and brought to Delhi where the police tortured
him and threatened to kill him. Therefore, he acted as per the direction of
the police and V.K. Anand, Advocate. He further stated that he is
uneducated and poor, but not a criminal and if he is acquitted, he would go
back to Karoli, Rajasthan and would take care of his parents.

315. Accused Akshay Kumar Singh, A-3, has stated that he hails from
a naxal affected area in District Aurangabad, Bihar and due to poverty, he
could not continue his studies beyond 9th class. He has stated that his
aged father Shri Saryu Singh and mother, Smt. Malti Devi, are dependent on
him. He has further stated that he is married to Punita Devi since 2010 and
they have a son, now aged about six years. He further stated that due to
poverty and lack of adequate opportunity in home town, he came to Delhi in
the month of November 2012 to earn his livelihood. To maintain his
dependants which include his parents, wife and child, he started working as
a cleaner in the concerned bus at a wage of Rs.50/- per day. He reiterated
his plea of alibi asserting that he had left Delhi on 15.12.2012 in
Mahabodhi Express accompanied by his sister-in-law, Sarita Devi, and went
to his native place Karmalahang where he was arrested. He further stated
that after his confinement in Tihar Jail, he has been maintaining good
behaviour and is working hard as a labourer in the prison to maintain his
family.

316. Accused Vinay Sharma, A-4, in his affidavit stated that he was
born in Kapiya Kalan, Tehsil Rudra Nagar, District Basti, Uttar Pradesh and
that his parents used to work as labourers and that his family is very
poor. The accused stated that he used to take care of his grandfather who
was a religious saint and up to July, 2012, he was studying at his native
place in Uttar Pradesh and only after July, 2012, he came to Delhi to
pursue his further studies. He has stated that he got himself admitted to
the University of Delhi, School of Open Learning, Delhi and to earn his
livelihood, he worked as a part-time instructor in gym and also as a
seasonal waiter in hotels and marriage ceremonies at night. Accused Vinay
Sharma further stated that he has to take care of his ailing parents and
also his younger sisters and younger brother, who are totally dependent on
him. In his affidavit, he reiterated his plea of alibi asserting that on
the fateful day, he had participated in the Christmas celebration and was
enjoying there with his family. The accused has further stated that he has
no criminal antecedents and after his confinement in Tihar Jail, he has
maintained good behaviour and has also organized various musical programmes
and his paintings are displayed in Tihar Jail.

317. Accused Pawan Gupta, A-5, filed his affidavit stating that he
comes from a very poor family where his father used to sell fruits on the
road for their living. He further stated that he is a resident of Cluster
Jhuggi Basti and was assisting his father in selling fruits on a cart. The
accused also illustrated the ailing condition of his family stating that
his parents are heart patients and his mother is a handicapped person
suffering from BP and thyroid. He also stated that his younger sister,
Dimple Gupta, was under depression on account of the false implication of
her brother in the present case and could not tolerate humiliation by the
society and she has committed suicide on 09.02.2013. Apart from that, he
has to look after his dependant parents and two other sisters, one married
and the other unmarried and aged 17 years, and one younger brother. On
behalf of accused Pawan Gupta, fervent plea was made that he has no prior
criminal antecedent and after being confined to Central Jail, Tihar, he is
trying to reform himself into a better person.

318. Mr. Ramachandran, learned amicus curiae, criticized the
sentence, placed reliance on Bachan Singh v. State of Punjab[123] and
submitted that the trial court and the High Court have committed the error
of not applying the doctrine of equality which prescribes similar treatment
to similar persons and stated that the Court in Bachan Singh (supra) has
categorically held that the extreme penalty can be inflicted only in
gravest cases of extreme culpability; in making the choice of sentence, in
addition to the circumstances of the offence, due regard must be paid to
the circumstances of the offender also; and that the mitigating
circumstances referred therein are undoubtedly relevant and must be given
great weight in the determination of sentence. Further placing reliance on
Machhi Singh v. State of Punjab[124], it is submitted by learned amicus
curiae that in the said case, the Court held that a balance sheet of the
aggravating and mitigating circumstances should be drawn up and the
mitigating circumstances should be accorded full weightage and a just
balance should be struck between the aggravating and mitigating
circumstances. He further pointed out number of decisions wherein this
Court has given considerable weight to the circumstances of the criminal
and commuted the sentence to life imprisonment.

319. Mr. Ramachandran further urged that in the present case, the
decision in Bachan Singh (supra) was completely disregarded and the trial
court, while sentencing the accused, only placed emphasis on the brutal and
heinous nature of the crime and the mitigating factors including the
possibility of reform and rehabilitation were ruled out on the basis of the
nature of the crime and not on its own merits. It is further contended by
him that in Sangeet and another v. State of Haryana[125] and Shankar
Kisanrao Khade v. State of Maharashtra[126], the decisions, i.e., Shiv v.
High Court of Karnataka[127], B.A.Umesh v. Registrar General, High Court
of Karnataka[128] and Dhananjoy Chaterjee v. State of West Bengal[129],
relied upon by the Special Public Prosecutor and the High Court, have been
doubted by this Court.

320. Learned amicus curiae has further propounded that sentencing
and non-consideration of the mitigating circumstances are violative of
Articles 14 and 21 of the Constitution. It is his submission that the
prosecution’s argument on aggravating circumstances gets buttressed by the
material on record while the plea of mitigating circumstances rests solely
on arguments and this imbalance is a serious violation of the doctrine of
fairness and reasonableness enshrined in Article 14 of the Constitution;
that there should be a fair and principle-based sentencing process in death
penalty cases by which a genuine and conscious attempt is made to
investigate and evaluate the circumstances of the criminal; that the fair
and principled approaches are facets of Article 14; and that if the
enumeration and evaluation of mitigating factors are left only to the
accused or his counsel and the Court does not accord a principle-based
treatment, the imposition of death penalty will be rendered the norm and
not the exception, which is an inversion of the Bachan Singh (supra) logic
and a serious violation of Article 21 of the Constitution.

321. Mr. Ramachandran submitted that the trial court and the High
Court failed to pay due regard to the mitigating factors; that the courts
have committed the mistake of rejecting the mitigating factors by reasoning
that it may not be sufficient for awarding life sentence; and that the
courts have not considered all the mitigating factors cumulatively to
arrive at the conclusion whether the case fell within the rarest of rare
category. He has referred to the Constitution Bench decision in Triveniben
v. State of Gujarat[130] wherein Shetty, J. in his concurring opinion,
opined that death sentence cannot be given if there is any one mitigating
circumstance in favour of the accused and all circumstances of the case
should be aggravating and submitted that this line of judicial thought has
been completely ignored by the High Court and the trial court.

322. Learned amicus curiae further contended that the attribution of
individual role with respect to the iron rod, which was a crucial
consideration in convicting the accused under Section 302 IPC, was not
considered by the trial court or the High Court in the sentencing process
and stressed that when life imprisonment is the norm and death penalty the
exception, the lack of individual role has tobe regarded as a major
mitigating circumstance. In this regard, reliance has been placed by him
on Karnesh Singh v. State of U.P.[131], Ronny v. State of Maharashtra[132],
Nirmal Singh v. State of Haryana[133] and Sahdeo v. State of U.P[134].

323. Mr. Ramachandran has also contended that subsequent to the
pronouncement in Machhi Singh (supra), there are series of decisions by
this Court where the Court has given considerable weight to the concept of
reformation and rehabilitation and commuted the sentence to life
imprisonment. According to him, young age is a mitigating factor and this
Court has taken note of the same in Raghubir Singh v. State of
Haryana[135], Harnam Singh v. State of Uttar Pradesh[136], Amit v. State of
Maharashtra[137], Rahul v. State of Maharashtra[138], Rameshbhai Chandubhai
Rathod v. State of Gujarat[139], Santosh Kumar Bariyar v. State of
Maharashtra[140], Sebastian v. State of Kerala[141], Santosh Kumar Singh
(supra), Rameshbhai Chandubhai Rathod II v. State of Gujarat[142], Amit v.
State of Uttar Pradesh[143] and Lalit Kumar Yadav v. State of Uttar
Pradesh[144]. That apart, it is urged by him that when the crime is not
pre-meditated, the same becomes a mitigating factor and that has been taken
note of by this Court in the authorities in Akhtar v State of Uttar
Pradesh[145], Raju v. State of Haryana[146] and Amrit Singh v. State of
Punjab[147].

324. Learned amicus curiae would further urge that when the criminal
antecedents are lacking and the prosecution has not been able to say about
that the appellants deserve imposition of lesser sentence. For the said
purpose, he has commended us to the authorities in Nirmal Singh (supra),
Raju v. State of Haryana (supra), Amit v. State of Maharashtra (supra),
Surender Pal v. State of Gujarat[148], Rameshbhai Chandubhai Rathod II
(supra), Amit v. State of Uttar Pradesh (supra), Anil v. State of
Maharashtra[149] and Lalit Kumar Yadav v. State of Uttar Pradesh[150].

325. Learned senior counsel has emphasized on the reform,
rehabilitation and absence of any continuing threat to the collective which
are factors to be taken into consideration for the purpose of commutation
of death penalty to life imprisonment. In this regard, learned senior
counsel has drawn inspiration from the decisions in Ronny (supra), Nirmal
Singh (supra), Bantu v. State of Madhya Pradesh[151], Lehna (supra), Rahul
(supra), Santosh Kumar Bariyar (supra), Santosh Kumar Singh (supra), Rajesh
Kumar v. State[152], Amit v. State of Uttar Pradesh (supra), Ramnaresh v.
State of Chhattisgarh[153], Sandesh v. State of Maharashtra[154] and Lalit
Kumar Yadav (supra).

326. Mr. Ramachandran has also submitted that the present case
should be treated as a special category as has been held in Swamy
Shradhananda (2) v. State of Karnataka[155] and the recent Constitution
Bench decision in Union of India v. Sriharan[156]. It is urged by him that
in many a case, this Court has exercised the said discretion. Learned
senior counsel in that regard has drawn our attention to the pronouncements
in Rameshbhai Chandubhai Rathod (supra), Neel Kumar v. State of
Haryana[157], Ram Deo Prasad v. State of Bihar[158], Chhote Lal v.State of
Madhya Pradesh[159], Anil v. State of Maharashtra (supra), Rajkumar (supra)
and Selvam v. State[160].

327. Mr. Hegde, learned friend of the Court, canvassed that the
theory of reformation cannot be ignored entirely in the obtaining factual
matrix in view of the materials brought on record. Learned senior counsel
would contend that imposition of death penalty would be extremely harsh and
totally unwarranted inasmuch as the case at hand does not fall in the
category of rarest of rare case. That apart, it is contended by him that
the entire incident has to be viewed from a different perspective, that is,
the accused persons had the bus in their control, they were drunk, and
situation emerged where the poverty-stricken persons felt empowered as a
consequence of which the incident took place and considering the said
aspect, they may be imposed substantive custodial sentence for specific
years but not death penalty. Additionally, it is submitted by him that in
the absence of pre-meditation to commit a crime of the present nature, it
would not invite the harshest punishment.

328. Mr. Luthra, learned senior counsel, has referred to the reports
of the Superintendent of Jail that the conduct of the accused persons in
the jail has been absolutely non-satisfactory and non-cooperative and the
diabolic nature of the crime has shaken the collective conscience.
According to him, the diabolic nature of the crime has nothing to do with
poverty, for it was not committed for alleviation of poverty but to satiate
their sexual appetite and enormous perversity. He would submit that this
would come in the category of rarest of the rare cases in view of the law
laid down in Sevaka Perumal v. State of Tamil Nadu[161], Kamta Tiwari v.
State of Madhya Pradesh[162], State of U.P. v. Satish[163], Holiram
Bordoloi v. State of Assam[164], Ankush Maruti Shinde v. State of
Maharashtra[165], Sundar v. State[166] and Mohfil Khan v. State of
Jharkhand[167].

329. It is also submitted by Mr. Luthra that mitigating
circumstances are required to be considered in the light of the offence
and not alone on the backdrop of age and family background. For this
purpose, he has relied upon Deepak Rai v. State of Bihar[168] and
Purshottam Dashrath Borate v. State of Maharashtra[169].

330. Mr. Sharma and Mr. Singh, learned counsel for the appellants,
would submit that the conduct of the accused persons shows reformation as
there are engaged in educating themselves and also they have been
participating in affirmative and constructive activities adopted in jail
and so, death penalty should not be affirmed and should be commuted. Mr.
Sharma, learned counsel appearing for the accused Mukesh, submits that he
is not connected with the crime in question. It is put forth that the case
at hand cannot be regarded as rarest of the rare cases and, therefore, the
maximum punishment that can be given should be for a specific period.

331. Presently, we shall proceed to analyse the aforesaid aspect.
In Bachan Singh (supra), the Court held thus:

“(a) The normal rule is that the offence of murder shall be punished with
the sentence of life imprisonment. The court can depart from that rule and
impose the sentence of death only if there are special reasons for doing
so. Such reasons must be recorded in writing before imposing the death
sentence.

(b) While considering the question of sentence to be imposed for the
offence of murder under Section 302 of the Penal Code, the court must have
regard to every relevant circumstance relating to the crime as well as the
criminal. If the court finds, but not otherwise, that the offence is of an
exceptionally depraved and heinous character and constitutes, on account of
its design and the manner of its execution, a source of grave danger to the
society at large, the court may impose the death sentence.”

332. In the said case, the Court, after referring to the authority
in Furman v. Georgia[170], noted the suggestion given by the learned
counsel about the aggravating and the mitigating circumstances. The
aggravating circumstances suggested by the counsel read as follows:

“Aggravating circumstances: A court may, however, in the following cases
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; or

(c) if the murder is of a member of any of the armed forces of the Union or
of a member of any police force or of any public servant and was committed—

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member
or public servant in the lawful discharge of his duty as such member or
public servant whether at the time of murder he was such member or public
servant, as the case may be, or had ceased to be such member or public
servant; or

(d) if the murder is of a person who had acted in the lawful discharge of
his duty under Section 43 of the Code of Criminal Procedure, 1973, or who
had rendered assistance to a Magistrate or a police officer demanding his
aid or requiring his assistance under Section 37 and Section 129 of the
said Code.”

After reproducing the same, the Court opined:

“Stated broadly, there can be no objection to the acceptance of these
indicators but as we have indicated already, we would prefer not to fetter
judicial discretion by attempting to make an exhaustive enumeration one way
or the other.”

333. Thereafter, the Court referred to the suggestions pertaining to
mitigating circumstances:

“Mitigating circumstances.—In the exercise of its discretion in the above
cases, the court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or
emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be
sentenced to death.

(3) The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The
State shall by evidence prove that the accused does not satisfy the
conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed
that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another
person.

(7) That the condition of the accused showed that he was mentally defective
and that the said defect impaired his capacity to appreciate the
criminality of his conduct.”

The Court then observed:

“We will do no more than to say that these are undoubtedly relevant
circumstances and must be given great weight in the determination of
sentence.”

334. In the said case, the Court has also held thus:

“It is, therefore, imperative to voice the concern that courts, aided by
the broad illustrative guide-lines indicated by us, will discharge the
onerous function with evermore scrupulous care and humane concern, directed
along the highroad of legislative policy outlined in Section 354(3) viz.
that for persons convicted of murder, life imprisonment is the rule and
death sentence an exception. A real and abiding concern for the dignity of
human life postulates resistance to taking a life through law’s
instrumentality. That ought not to be done save in the rarest of rare cases
when the alternative option is unquestionably foreclosed.”

335. In Machhi Singh (supra), a three-Judge Bench has explained the
concept of ‘rarest of the rare cases’ by observing thus:
“The reasons why the community as a whole does not endorse the humanistic
approach reflected in ‘death sentence-in-no-case’ doctrine are not far to
seek. In the first place, the very humanistic edifice is constructed on the
foundation of ‘reverence for life’ principle. When a member of the
community violates this very principle by killing another member, the
society may not feel itself bound by the shackles of this doctrine.
Secondly, it has to be realised that every member of the community is able
to live with safety without his or her own life being endangered because of
the protective arm of the community and on account of the rule of law
enforced by it. The very existence of the rule of law and the fear of being
brought to book operates as a deterrent for those who have no scruples in
killing others if it suits their ends. Every member of the community owes a
debt to the community for this protection.”

336. Thereafter, the Court has adverted to the aspects of the
feeling of the community and its desire for self-preservation and opined
that the community may well withdraw the protection by sanctioning the
death penalty. What has been ruled in this regard is worth reproducing:
“But the community will not do so in every case. It may do so ‘in the
rarest of rare cases’ when its collective conscience is so shocked that it
will expect the holders of the judicial power centre to inflict death
penalty irrespective of their personal opinion as regards desirability or
otherwise of retaining death penalty.”

337. It is apt to state here that in the said case, stress was laid
on certain aspects, namely, the manner of commission of the murder, the
motive for commission of the murder, anti-social or socially abhorrent
nature of the crime, magnitude of the crime and personality of the victim
of murder.

338. After so enumerating, the propositions that emerged from Bachan
Singh (supra) were culled out which are as follows:

“The following propositions emerge from Bachan Singh case:

“(i) The extreme penalty of death need not be inflicted except in 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 an exception. In
other words 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.”

339. The three-Judge Bench further opined that to apply the said
guidelines, the following questions are required to be answered:
“(a) Is there something uncommon about the crime which renders 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 death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offender?”

In the said case, the Court upheld the extreme penalty of death in
respect of three accused persons.

340. The Court in Haresh Mohandas Rajput v. State of
Maharashtra[171], while dealing with the situation where the death sentence
is warranted, referred to the guidelines laid down in Bachan Singh (supra)
and the principles culled out in Machhi Singh (supra) and opined as
follows:

“19. In Machhi Singh v. State of Punjab this Court expanded the “rarest of
rare” formulation beyond the aggravating factors listed in Bachan Singh to
cases where the “collective conscience” of the community is so shocked that
it will expect the holders of the judicial power centre to inflict the
death penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining the death penalty, such a penalty
can be inflicted. But the Bench in this case underlined that full weightage
must be accorded to the mitigating circumstances in a case and a just
balance had to be struck between the aggravating and the mitigating
circumstances.”

After so stating, the Court ruled thus:

“20. The rarest of the rare case” comes when a convict would be a menace
and threat to the harmonious and peaceful coexistence of the society. The
crime may be heinous or brutal but may not be in the category of “the
rarest of the rare case”. There must be no reason to believe that the
accused cannot be reformed or rehabilitated and that he is likely to
continue criminal acts of violence as would constitute a continuing threat
to the society. The accused may be a menace to the society and would
continue to be so, threatening its peaceful and harmonious coexistence. The
manner in which the crime is committed must be such that it may result in
intense and extreme indignation of the community and shock the collective
conscience of the society. Where an accused does not act on any spur-of-the-
moment provocation and indulges himself in a deliberately planned crime and
[pic]meticulously executes it, the death sentence may be the most
appropriate punishment for such a ghastly crime. The death sentence may be
warranted where the victims are innocent children and helpless women. Thus,
in case the crime is committed in a most cruel and inhuman manner which is
an extremely brutal, grotesque, diabolical, revolting and dastardly manner,
where his act affects the entire moral fibre of the society e.g. crime
committed for power or political ambition or indulging in organised
criminal activities, death sentence should be awarded. (See C. Muniappan v.
State of T.N[172]., Dara Singh v. Republic of India[173], Surendra Koli v.
State of U.P.[174], Mohd. Mannan[175] and Sudam v. State of
Maharashtra[176].)

21. Thus, it is evident that for awarding the death sentence, there must be
existence of aggravating circumstances and the consequential absence of
mitigating circumstances. As to whether the death sentence should be
awarded, would depend upon the factual scenario of the case in hand.”

341. This Court, while dealing with the murder of a young girl of about
18 years in Dhananjoy Chatterjee (supra), took note of the fact that the
accused was a married man of 27 years of age, the principles stated in
Bachan Singh’s case and further took note of the rise of violent crimes
against women in recent years and, thereafter, on consideration of the
aggravating factors and mitigating circumstances, opined that:
“In our opinion, the measure of punishment in a given case must depend upon
the atrocity of the crime; the conduct of the criminal and the defenceless
and unprotected state of the victim. Imposition of appropriate punishment
is the manner in which the courts respond to the society’s cry for justice
against the criminals. Justice demands that courts should impose punishment
befitting the crime so that the courts reflect public abhorrence of the
crime. The courts must not only keep in view the rights of the criminal but
also the rights of the victim of crime and the society at large while
considering imposition of appropriate punishment.”

342. After so stating, the Court took note of the fact that the
deceased was a school-going girl and it was the sacred duty of the
appellant, being a security guard, to ensure the safety of the inhabitants
of the flats in the apartment but to gratify his lust, he had raped and
murdered the girl in retaliation which made the crime more heinous.
Appreciating the manner in which the barbaric crime was committed on a
helpless and defenceless school-going girl of 18 years, the Court came to
hold that the case fell in the category of rarest of the rare cases and,
accordingly, affirmed the capital punishment imposed by the High Court.

343. In Laxman Naik v. State of Orissa[177], the Court commenced the
judgment with the following passage:

“The present case before us reveals a sordid story which took place
sometime in the afternoon of February 17, 1990, in which the alleged sexual
assault followed by brutal and merciless murder by the dastardly and
monstrous act of abhorrent nature is said to have been committed by the
appellant herein who is none else but an agnate and paternal uncle of the
deceased victim Nitma, a girl of the tender age of 7 years who fell a prey
to his lust which sends shocking waves not only to the judicial conscience
but to everyone having slightest sense of human values and particularly to
the blood relations and the society at large”.

344. It is worthy to note that in the said case, the High Court had
dismissed the appellant’s appeal and confirmed the death sentence awarded
to him. While discussing as regards the justifiability of the sentence,
the Court referred to the decision in Bachan Singh’s case and opined that
there were absolutely no mitigating circumstances and, on the contrary, the
facts of the case disclosed only aggravating circumstances against the
appellant. Elaborating further, the Court held thus:
“The hard facts of the present case are that the appellant Laxman is the
uncle of the deceased and almost occupied the status and position that of a
guardian. Consequently the victim who was aged about 7 years must have
reposed complete confidence in the appellant and while reposing such faith
and confidence in the appellant must have believed in his bona fides and it
was on account of such a faith and belief that she acted upon the command
of the appellant in accompanying him under the impression that she was
being taken to her village unmindful of the preplanned unholy designs of
the appellant. The victim was a totally helpless child there being no one
to protect her in the desert where she was taken by the appellant misusing
her confidence to fulfil his lust. It appears that the appellant had
preplanned to commit the crime by resorting to diabolical methods and it
was with that object that he took the girl to a lonely place to execute his
dastardly act.”

After so stating, the Court, while affirming the death sentence, opined
that:

“ …….The victim of the age of Nitma could not have even ever resisted the
act with which she was subjected to. The appellant seems to have acted in a
beastly manner as after satisfying his lust he thought that the victim
might expose him for the commission of the offence of forcible rape on her
to the family members and others, the appellant with a view to screen
[pic]the evidence of his crime also put an end to the life of innocent girl
who had seen only seven summers. The evidence on record is indicative of
the fact as to how diabolically the appellant had conceived of his plan and
brutally executed it and such a calculated, cold-blooded and brutal murder
of a girl of a very tender age after committing rape on her would
undoubtedly fall in the category of rarest of the rare cases attracting no
punishment other than the capital punishment and consequently we confirm
the sentence of death imposed upon the appellant for the offence under
Section 302 of the Penal Code.”

345. Kamta Tiwari (supra) is a case where the appellant was
convicted for the offences punishable under Sections 363, 376, 302 and 201
of IPC and sentenced to death by the learned trial Judge and the same was
affirmed by the High Court. In appeal, the two-Judge Bench referred to the
propositions culled out in Machhi Singh (supra) and expressed thus:

“Taking an overall view of all the facts and circumstances of the instant
case in the light of the above propositions we are of the firm opinion that
the sentence of death should be maintained. In vain we have searched for
[pic]mitigating circumstances — but found aggravating circumstances
aplenty. The evidence on record clearly establishes that the appellant was
close to the family of Parmeshwar and the deceased and her siblings used to
call him ‘Tiwari Uncle’. Obviously her closeness with the appellant
encouraged her to go to his shop, which was near the saloon where she had
gone for a haircut with her father and brother, and ask for some biscuits.
The appellant readily responded to the request by taking her to the nearby
grocery shop of Budhsen and handing over a packet of biscuits apparently as
a prelude to his sinister design which unfolded in her kidnapping, brutal
rape and gruesome murder — as the numerous injuries on her person testify;
and the finale was the dumping of her dead body in a well. When an innocent
hapless girl of 7 years was subjected to such barbaric treatment by a
person who was in a position of her trust his culpability assumes the
proportion of extreme depravity and arouses a sense of revulsion in the
mind of the common man. In fine, the motivation of the perpetrator, the
vulnerability of the victim, the enormity of the crime, the execution
thereof persuade us to hold that this is a “rarest of rare” cases where the
sentence of death is eminently desirable not only to deter others from
committing such atrocious crimes but also to give emphatic expression to
society’s abhorrence of such crimes.”

346. In Bantu v. State of Uttar Pradesh[178], a five year old minor
girl was raped and murdered and the appellant was awarded death sentence by
the trial Court which was affirmed by the High Court. This Court found the
appellant guilty of the crime and, thereafter, referred to the principles
stated in Bachan Singh, Machhi Singh (supra) and Devender Pal Singh v.
State of A.P.[179] and eventually came to hold that the said case fell in
the rarest of the rare category and the capital punishment was warranted.
Being of this view, the Court declined to interfere with the sentence.

347. In Rajendra Pralhadrao Wasnik v. State of Maharashtra[180], the
appellant was awarded sentence of death by the learned trial Judge which
was confirmed by the High Court, for he was found guilty of the offences
punishable under Sections 376(2)(f), 377 and 302 IPC. In the said case,
the prosecution had proven that the appellant had lured a three year old
minor girl child on the pretext of buying her biscuits and then raped her
and eventually, being apprehensive of being identified, killed her. In
that context, while dismissing the appeal, the Court ruled thus:
“37. When the Court draws a balance sheet of the aggravating and mitigating
circumstances, for the purposes of determining whether the extreme sentence
of death should be imposed upon the accused or not, the scale of justice
only tilts against the accused as there is nothing but aggravating
circumstances evident from the record of the Court. In fact, one has to
really struggle to find out if there were any mitigating circumstances
favouring the accused.

38. Another aspect of the matter is that the minor child was helpless in
the cruel hands of the accused. The accused was holding the child in a
relationship of “trust-belief” and “confidence”, in which capacity he took
the child from the house of PW 2. In other words, the accused, by his
conduct, has belied the human relationship of trust and worthiness. The
accused left the deceased in a badly injured condition in the open fields
without even clothes. This reflects the most unfortunate and abusive facet
of human conduct, for which the accused has to blame no one else than his
own self.”

348. At this stage, it is fruitful to refer to some authorities
where in cases of rape and murder, the death penalty was not awarded. In
State of T.N. v. Suresh and another[181], the Court, while unsettling the
judgment of acquittal recorded by the High Court and finding that the
accused was guilty of rape of a pregnant woman and also murder, awarded the
sentence of life imprisonment by observing:

“The above discussion takes us to the final conclusion that the High Court
has seriously erred in upsetting the conviction entered by the Sessions
Court as against A-2 and A-3. The erroneous approach has resulted in
miscarriage of justice by allowing the two perpetrators of a dastardly
crime committed against a helpless young pregnant housewife who was
sleeping in her own apartment with her little baby sleeping by her side and
during the absence of her husband. We strongly feel that the error
committed by the High Court must be undone by restoring the conviction
passed against A-2 and A-3, though we are not inclined, at this distance of
time, to restore the sentence of death passed by the trial court on those
two accused”.

From the aforesaid authority, it is seen that the Court did not think
it appropriate to restore the death sentence passed by the trial court
regard being had to the passage of time.

349. In Akhtar v. State of U.P. (supra), the appellant was found
guilty of murder of a young girl after committing rape on her and was
sentenced to death by the learned Sessions Judge and the said sentence was
confirmed by the High Court. The two-Judge Bench referred to the decisions
in Laxman Naik (supra) and Kamta Tiwari (supra) and addressed itself
whether the case in hand was one of the rarest of the rare case for which
punishment of death could be awarded. The Court distinguished the two
decisions which have been referred to hereinabove and ruled:

“In the case in hand on examining the evidence of the three witnesses it
appears to us that the accused-appellant has committed the murder of the
deceased girl not intentionally and with any premeditation. On the other
hand the accused-appellant found a young girl alone in a lonely place,
picked her up for committing rape; while committing rape and in the process
by way of gagging the girl has died. The medical [pic]evidence also
indicates that the death is on account of asphyxia. In the circumstances we
are of the considered opinion that the case in hand cannot be held to be
one of the rarest of rare cases justifying the punishment of death”.

350. In State of Maharashtra v. Barat Fakira Dhiwar[182], a three-
year old girl was raped and murdered by the accused. The learned trial
Judge convicted the accused and awarded the death sentence. The High Court
had set aside the order of conviction and acquitted him for the offences.
This Court, on scrutiny of the evidence, found the accused guilty of rape
and murder. Thereafter, the Court proceeded to deal with the sentence and,
in that context, observed:

“Regarding sentence we would have concurred with the Sessions Court’s view
that the extreme penalty of death can be chosen for such a crime. However,
as the accused was once acquitted by the High Court we refrain from
imposing that extreme penalty in spite of the fact that this case is
perilously near the region of “rarest of the rare cases”, as envisaged by
the Constitution Bench in Bachan Singh v. State of Punjab. However, the
lesser option is not unquestionably foreclosed and so we alter the
sentence, in regard to the offence under Section 302 IPC, to imprisonment
for life”.

351. Keeping in view the aforesaid authorities, the Court, in
Vasanta Sampat Dupare v. State of Maharashtra[183], proceeded to adumbrate
what is the duty of the Court when the collective conscience is shocked
because of the crime committed and observed:

“… When the crime is diabolical in nature and invites abhorrence of the
collective, it shocks the judicial conscience and impels it to react
keeping in view the collective conscience, cry of the community for justice
and the intense indignation the manner in which the brutal crime is
committed. We are absolutely conscious that Judges while imposing
sentence, should never be swayed away with any kind of individual
philosophy and predilections. It should never have the flavour of Judge-
centric attitude or perception. It has to satisfy the test laid down in
various precedents relating to rarest of the rare case. We are also
required to pose two questions that has been stated in Machhi Singh’s
case.”

352. In the said case, the Court dwelt upon the manner in which the
crime was committed and how a minor girl had become a prey of the sexual
depravity and was injured by the despicable act of the accused to silence
the voice so that there would be no evidence. Dealing with the same, the
Court referred to earlier judgments and held:

“58. Presently, we shall proceed to dwell upon the manner in which the
crime was committed. Materials on record clearly reveal that the appellant
was well acquainted with the inhabitants of the locality and as is
demonstrable he had access to the house of the father of the deceased and
the children used to call him “uncle”. He had lured the deceased to go with
him to have chocolates. It is an act of taking advantage of absolute
innocence. He had taken the deceased from place to place by his bicycle and
eventually raped her in a brutal manner, as if he had an insatiable and
ravenous appetite. The injuries caused on the minor girl are likely to send
a chill in the spine of the society and shiver in the marrows of human
conscience. He had battered her to death by assaulting her with two heavy
stones. The injured minor girl could not have shown any kind of resistance.
It is not a case where the accused had a momentary lapse. It is also not a
case where the minor child had died because of profuse bleeding due to rape
but because of the deliberate cruel assault by the appellant. After the
savage act was over, the coolness of the appellant is evident, for he
washed the clothes on the tap and took proper care to hide things. As is
manifest, he even did not think for a moment the trauma and torture that
was caused to the deceased. The gullibility and vulnerability of the four
year girl, who could not have nurtured any idea about the maladroitly
designed biological desires of this nature, went with the uncle who
extinguished her life-spark. The barbaric act of the appellant does not
remotely show any concern for the precious life of a young minor child who
had really not seen life. The criminality of the conduct of the appellant
is not only depraved and debased, but can have a menacing effect on the
society. It is calamitous.

59. In this context, we may fruitfully refer to a passage from Shyam Narain
v. State (NCT of Delhi)[184], wherein it has been observed as follows:

“1. The wanton lust, vicious appetite, depravity of senses, mortgage of
mind to the inferior endowments of nature, the servility to the loathsome
beast of passion and absolutely unchained carnal desire have driven the
appellant to commit a crime which can bring in a ‘tsunami’ of shock in the
mind of the collective, send a chill down the spine of the society, destroy
the civilised stems of the milieu and comatose the marrows of sensitive
polity.”

In the said case, while describing the rape on an eight-year-old girl, the
Court observed: (Shyam Narain case, SCC p. 88, para 26)

“26. … Almost for the last three decades, this Court has been expressing
its agony and distress pertaining to the increased rate of crimes against
women. The eight-year-old girl, who was supposed to spend time in
cheerfulness, was dealt with animal passion and her dignity and purity of
physical frame was shattered. The plight of the child and the shock
suffered by her can be well visualised. The torment on the child has the
potentiality to corrode the poise and equanimity of any civilised society.
The age-old wise saying that ‘child is a gift of the providence’ enters
into the realm of absurdity. The young girl, with efflux of time, would
grow with a traumatic experience, an unforgettable shame. She shall always
be haunted by the memory replete with heavy crush of disaster constantly
echoing the chill air of the past forcing her to a state of nightmarish
melancholia. She may not be able to assert the honour of a woman for no
fault of hers.”

Elucidating further, the Court held:

“60. In the case at hand, as we find, not only was the rape committed in a
brutal manner but murder was also committed in a barbaric manner. The rape
of a minor girl child is nothing but a monstrous burial of her dignity in
the darkness. It is a crime against the holy body of a girl child and the
soul of society and such a crime is aggravated by the manner in which it
has been committed. The nature of the crime and the manner in which it has
been committed speaks about its uncommonness. The crime speaks of
depravity, degradation and uncommonality. It is diabolical and barbaric.
The crime was committed in an inhuman manner. Indubitably, these go a long
way to establish the aggravating circumstances.

61. We are absolutely conscious that mitigating circumstances are to be
taken into consideration. The learned counsel for the appellant pointing
out the mitigating circumstances would submit that the appellant is in his
mid-fifties and there is possibility of his reformation. Be it noted, the
appellant was aged about forty-seven years at the time of commission of the
crime. As is noticeable, there has been no remorse on the part of the
appellant. There are cases when this Court has commuted the death sentence
to life finding that the accused has expressed remorse or the crime was not
premeditated. But the obtaining factual matrix when unfolded stage by stage
would show the premeditation, the proclivity and the rapacious desire. The
learned counsel would submit that the appellant had no criminal antecedents
but we find that he was a history-sheeter and had a number of cases pending
against him. That alone may not be sufficient. The appalling cruelty shown
by him to the minor girl child is extremely shocking and it gets
accentuated, when his age is taken into consideration. It was not committed
under any mental stress or emotional disturbance and it is difficult to
comprehend that he would not commit such acts and would be reformed or
rehabilitated. As the circumstances would graphically depict, he would
remain a menace to society, for a defenceless child has become his prey. In
our considered opinion, there are no mitigating circumstances.

62. As we perceive, this case deserves to fall in the category of the
rarest of rare cases. It is inconceivable from the perspective of the
society that a married man aged about two scores and seven makes a four-
year minor innocent girl child the prey of his lust and deliberately causes
her death. A helpless and defenceless child gets raped and murdered because
of the acquaintance of the appellant with the people of the society. This
is not only betrayal of an individual trust but destruction and devastation
of social trust. It is perversity in its enormity. It irrefragably invites
the extreme abhorrence and indignation of the collective. It is an anathema
to the social balance. In our view, it meets the test of the rarest of the
rare case and we unhesitatingly so hold.”

353. In the said case, a review petition bearing Review Petition
(Criminal) Nos. 637-638 of 2015 was filed which has been recently
dismissed. U.U. Lalit, J., authoring the judgment, has held:

“19. It is thus well settled, “the Court would consider the cumulative
effect of both the aspects (namely aggravating factors as well as
mitigating circumstances) and it may not be very appropriate for the Court
to decide the most significant aspect of sentencing policy with reference
to one of the classes completely ignoring other classes under other heads
and it is the primary duty of the Court to balance the two.” Further, “it
is always preferred not to fetter the judicial discretion by attempting to
make excessive enumeration, in one way or another; and that both aspects
namely aggravating and mitigating circumstances have to be given their
respective weightage and that the Court has to strike the balance between
the two and see towards which side the scale/balance of justice tilts.”
With these principles in mind we now consider the present review petition.

20. The material placed on record shows that after the Judgment under
review, the petitioner has completed Bachelors Preparatory Programme
offered by the Indira Gandhi National Open University enabling him to
prepare for Bachelor level study and that he has also completed the Gandhi
Vichar Pariksha and had participated in drawing competition organized
sometime in January 2016. It is asserted that the jail record of the
petitioner is without any blemish. The matter is not contested as regards
Conditions 1, 2, 5, 6 and 7 as stated in paragraph 206 of the decision in
Bachan Singh but what is now being projected is that there is a possibility
of the accused being reformed and rehabilitated. Though these attempts on
part of the petitioner are after the judgment under review, we have
considered the material in that behalf to see if those circumstances
warrant a different view. We have given anxious consideration to the
material on record but find that the aggravating circumstances namely the
extreme depravity and the barbaric manner in which the crime was committed
and the fact that the victim was a helpless girl of four years clearly
outweigh the mitigating circumstances now brought on record. Having taken
an overall view of the matter, in our considered view, no case is made out
to take a different view in the matter. We, therefore, affirm the view
taken in the Judgment under review and dismiss the present Review
Petition.”

354. The mitigating factors which have been highlighted before us on
the basis of the affidavits filed by the appellants pertain to the strata
to which they belong, the aged parents, marital status and the young
children and the suffering they would go through and the calamities they
would face in case of affirmation of sentence, their conduct while they are
in custody and the reformative path they have chosen and their
transformation and the possibility of reformation. That apart, emphasis
has been laid on their young age and rehabilitation.

355. Now, we shall focus on the nature of the crime and manner in
which it has been commited. The submission of Mr. Luthra, learned senior
counsel, is that the present case amounts to devastation of social trust
and completely destroys the collective balance and invites the indignation
of the society. It is submitted by him that that a crime of this nature
creates a fear psychosis and definitely falls in the category of rarest of
the rare cases.

356. It is necessary to state here that in the instant case, the
brutal, barbaric and diabolic nature of the crime is evincible from the
acts committed by the accused persons, viz., the assault on the informant,
PW-1 with iron rod and tearing off his clothes; assaulting the informant
and the deceased with hands, kicks and iron rod and robbing them of their
personal belongings like debit cards, ring, informant’s shoes, etc.;
attacking the deceased by forcibly disrobing her and committing violent
sexual assault by all the appellants; their brutish behaviour in having
anal sex with the deceased and forcing her to perform oral sex; injuries on
the body of the deceased by way of bite marks (10 in number); and insertion
of rod in her private parts that, inter alia, caused perforation of her
intestine which caused sepsis and, ultimately, led to her death. The
medical history of the prosecutrix (as proved in the record in Ex. PW-50/A
and Ex. PW-50) demonstrates that the entire intestine of the prosecutrix
was perforated and splayed open due to the repeated insertion of the rod
and hands; and the appellants had pulled out the internal organs of the
prosecutrix in the most savage and inhuman manner that caused grave
injuries which ultimately annihilated her life. As has been established,
the prosecutrix sustained various bite marks which were observed on her
face, lips, jaws, near ear, on the right and left breast, left upper arm,
right lower limb, right inner groin, right lower thigh, left thigh lateral,
left lower anterior and genitals. These acts itself demonstrate the mental
perversion and inconceivable brutality as caused by the appellants. As
further proven, they threw the informant and the deceased victim on the
road in a cold winter night. After throwing the informant and the deceased
victim, the convicts tried to run the bus over them so that there would be
no evidence against them. They made all possible efforts in destroying the
evidence by, inter alia, washing the bus and burning the clothes of the
deceased and after performing the gruesome act, they divided the loot among
themselves. As we have narrated the incident that has been corroborated by
the medical evidence, oral testimony and the dying declarations, it is
absolutely obvious that the accused persons had found an object for
enjoyment in her and, as is evident, they were obsessed with the singular
purpose sans any feeling to ravish her as they liked, treat her as they
felt and, if we allow ourselves to say, the gross sadistic and beastly
instinctual pleasures came to the forefront when they, after ravishing her,
thought it to be just a matter of routine to throw her alongwith her
friend out of the bus and crush them. The casual manner with which she was
treated and the devilish manner in which they played with her identity and
dignity is humanly inconceivable. It sounds like a story from a different
world where humanity has been treated with irreverence. The appetite for
sex, the hunger for violence, the position of the empowered and the
attitude of perversity, to say the least, are bound to shock the collective
conscience which knows not what to do. It is manifest that the wanton
lust, the servility to absolutely unchained carnal desire and slavery to
the loathsome beastility of passion ruled the mindset of the appellants to
commit a crime which can summon with immediacy “tsunami” of shock in the
mind of the collective and destroy the civilised marrows of the milieu in
entirety.

357. When we cautiously, consciously and anxiously weigh the
aggravating circumstances and the mitigating factors, we are compelled to
arrive at the singular conclusion that the aggravating circumstances
outweigh the mitigating circumstances now brought on record. Therefore, we
conclude and hold that the High Court has correctly confirmed the death
penalty and we see no reason to differ with the same.

358. Before we part with the case, we are obligated to record our
unreserved appreciation for the assistance rendered by Mr. Raju
Ramachandran and Mr. Sanjay R. Hegde, learned amicus curiae appointed by
the Court. We must also record our uninhibited appreciation for
Mr. M.L. Sharma and Mr. A.P. Singh, learned counsel for the
appellants, for they, keeping the tradition of the Bar, defended the
appellants at every stage.

359. In view of our preceding analysis, the appeals are bound to
pave the path of dismissal, and accordingly, we so direct.

………………………J.

(Dipak Misra)

………………………J.

                                             (Ashok Bhushan)

New Delhi

May 05, 2017

|REPORTABLE     |
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION
                     CRIMINAL APPEAL NOS. 607-08 OF 2017

                     [@SLP(CRL) NOS. 3119-3120 OF 2014]
Mukesh  Anr.                     …..              Appellants

                                     Vs.
State of NCT of Delhi and Ors.    …..                  Respondents
                                    With
                     CRIMINAL APPEAL NOS. 609-10 OF 2017

                     [@SLP(CRL) NOS. 5027-5028 OF 2014]
Vinay Sharma  Anr.               …..              Appellants

                                     Vs.
State of NCT of Delhi and Ors.    …..                   Respondents
                               J U D G M E N T
R. BANUMATHI, J.
      I have gone through the judgment of my esteemed Brother Justice  Dipak

Misra.  I  entirely  agree  with  the  reasoning  adopted  by  him  and  the

conclusions  arrived  at.   However,  in  view  of  the  significant  issues

involved in the matter, in the light of settled  norms  of  appreciation  of

evidence in rape cases  and  the  role  of  Judiciary  in  addressing  crime

against  women,  I  would  prefer  to  give  my  additional  reasoning   for

concurrence.

2.    Honesty, pride, and self-esteem are crucial to  the  personal  freedom

of a woman. Social progress depends on the progress of  everyone.  Following

words of the father of our nation must be noted at all times:

“To call woman the weaker sex is a libel; it is man’s  injustice  to  woman.

If by strength is meant  moral  power,  then  woman  is  immeasurably  man’s

superior. Has she not greater intuition, is she not  more  self-sacrificing,

has she not greater powers  of  endurance,  has  she  not  greater  courage?

Without her, man could not be. If non-violence is the law of our being,  the

future is with woman. Who can make a more  effective  appeal  to  the  heart

than woman?”
3.    Crimes against women – an area of concern: Over the past few  decades,

legal advancements and policy reforms have done much to protect  women  from

all sources of violence and also to sensitize the public  on  the  issue  of

protection of women and gender justice. Still, the crimes against women  are

on the increase.  As per the annual report of National Crime Records  Bureau

titled,      ‘Crime      in       India       2015’       available       at

     /Compendium     -

15.11.16.pdf, a  total  of  3,27,394  cases  of  crime  against  women  were

reported in the year 2015, which shows an increase  of  over  43%  in  crime

against women since 2011, when 2,28,650 cases were  reported.  A  percentage

change of 110.5% in the cases of crime  against  women  has  been  witnessed

over the past decade (2005 to 2015),  meaning  thereby  that  crime  against

women has more than doubled in a decade. An overall  crime  rate  under  the

head, ‘crime against women’ was reported as 53.9% in 2015, with Delhi UT  at

the top spot.

4.    As per the National Crime Records Bureau, a total of 34,651  cases  of

rape under Section 376 IPC were  registered  during  2015  (excluding  cases

under the Protection  of  Children  from  Sexual  Offences  Act,  2012).  An

increasing trend in the incidence of  rape  has  been  observed  during  the

period 2011-2014. These cases have shown an increase of  9.2%  in  the  year

2011 (24,206 cases) over the year 2010 (22,172 cases), an increase  of  3.0%

in the year 2012 (24,923 cases) over 2011, with further  increase  of  35.2%

in the year 2013 (33,707 cases) over 2012 and 9.0% in  2014  (36,735  cases)

over 2013. A decrease of 5.7% was reported in 2015 (34,651 cases) over  2014

(36,735 cases). 12.7% (4,391 out of 34,651 cases)  of  total  reported  rape

cases in 2015 were  reported  in  Madhya  Pradesh  followed  by  Maharashtra

(4,144 cases), Rajasthan (3,644 cases),  Uttar  Pradesh  (3,025  cases)  and

Odisha (2,251 cases) accounting for 11.9%, 10.5%, 8.7%  and  6.5%  of  total

cases respectively. NCT of  Delhi  reported  highest  crime  rate  of  23.7%

followed by Andaman  Nicobar Islands  at  13.5%  as  compared  to  national

average of 5.7%. In order to  combat  increasing  crime  against  women,  as

depicted in the statistics of National Crime Records  Bureau,  the  root  of

the problem must be studied in  depth  and  the  same  be  remedied  through

stringent legislation and other steps.  In order to secure social order  and

security,  it  is  imperative  to  address  issues  concerning   women,   in

particular crimes against women on priority basis.

5.    Stringent legislation and punishments alone may not be sufficient  for

fighting increasing crimes against women. In our  tradition  bound  society,

certain attitudinal change and change in the mind-set is needed  to  respect

women and to ensure gender justice. Right  from  childhood  years’  children

ought to be sensitized to  respect  women.  A  child  should  be  taught  to

respect women in the society in the same way as  he  is  taught  to  respect

men.  Gender equality should be made a part of the  school  curriculum.  The

school teachers and parents should be trained, not only to  conduct  regular

personality building and skill enhancing exercise, but also to keep a  watch

on the actual behavioural pattern of the children so as to make them  gender

sensitized.  The  educational  institutions,  Government  institutions,  the

employers and all concerned must take steps to create awareness with  regard

to gender sensitization and to respect women. Sensitization  of  the  public

on gender justice through TV, media and press should be  welcomed.   On  the

practical side, few of the suggestions  are  worthwhile  to  be  considered.

Banners and placards in the public transport vehicles like autos, taxis  and

buses etc. must be ensured. Use of street lights, illuminated bus stops  and

extra police patrol during  odd  hours  must  be  ensured.   Police/security

guards must be posted at dark and lonely places  like  parks,  streets  etc.

Mobile apps for immediate assistance  of  women  should  be  introduced  and

effectively maintained.  Apart from effective implementation of the  various

legislation protecting women, change in the  mind  set  of  the  society  at

large and creating awareness in the public on gender  justice,  would  go  a

long way to combat violence against women.

6.    Factual Matrix: The entire factual matrix of the concerned  horrendous

incident has already been fairly set out in  the  judgment  of  my  esteemed

brother Justice Dipak Misra, the High Court and  the  trial  Court.  Suffice

only to briefly recapitulate the facts, for my  reference  purpose  and  for

completion.

7.    In the wintry night of 16.12.2012, when the entire Delhi was  busy  in

its day-to-day affair, embracing  the  joy  of  year-end,  two  youths  were

bravely struggling to save their dignity and life. It is a case of  barbaric

sexual violence against women, in fact against the society at  large,  where

the accused and juvenile in conflict with  law  picked  up  a  23  year  old

physiotherapy student and her male friend (PW-1) accompanying  her,  from  a

busy  place  in  Delhi-Munirka  Bus  stop  and  subjected  them  to  heinous

offences. The accused gang-raped the  prosecutrix  in  the  moving  bus  and

completely ravished her in front of her  helpless  friend,  Awninder  Pratap

(PW-1). The accused, on satisfaction of their lust, threw both the  victims,

half naked, outside the bus, in December cold near Mahipalpur  flyover.  The

prosecutrix and PW-1 were noticed in  miserable  condition  near  Mahipalpur

flyover, where they were thrown, by PW-72 Raj Kumar, who was  on  patrolling

duty that night in the area and PW-73 Ram Chandar,  Head  Constable,  rushed

the prosecutrix and PW-1  to  Safdarjung  Hospital  owing  to  the  need  of

immediate medical attention. Law was set in motion by the statement  of  PW-

1, which was  recorded  after  giving  primary  medical  treatment  to  him.

Statement/Dying declaration of the prosecutrix was also  recorded  by  PW-49

Doctor, PW-27 Sub-Divisional Magistrate and PW-30  Metropolitan  Magistrate.

After intensive  care  and  treatment  in  ICU  in  Delhi,  the  victim  was

airlifted  to  a  hospital  in  Singapore  by  an  air-ambulance  where  she

succumbed to her injuries on 29.12.2012.

8.    The  incident  shocked  the  nation  and  generated  public  rage.   A

Committee headed by Justice J.S. Verma, Former Chief Justice  of  India  was

constituted to suggest amendments to deal with sexual offences more  sternly

and effectively in future. The suggestions  of  the  Committee  led  to  the

enactment of Criminal Law (Amendment) Act, 2013 which, inter  alia,  brought

in substantive as well as procedural reforms in the core areas of rape  law.

The changes brought in, inter alia, can broadly be  titled  as  under:-  (i)

Extension of the definition of the offence  of  rape  in             Section

375 IPC;  (ii) Adoption of a more pragmatic approach while dealing with  the

issue of consent in the offence of rape; and (iii) Introduction  of  harsher

penalty commensurating with the gravity of offence. These subsequent  events

though not relevant for the purpose of this judgment, I have referred to  it

for the sake of factual completion.

9.    Both the courts below, by recording concurrent  findings,  have  found

all the accused guilty of the offences they were charged with and  owing  to

the gravity and manner of committing the  heinous  offences  held  that  the

acts of the accused shake the conscience of the society falling  within  the

category of rarest of rare cases and awarded  death  penalty.  Briefly  put,

the courts below have found that the prosecution has established  the  guilt

of the accused inter alia on the following:

Three dying declarations  of  the  prosecutrix,  complementing  each  other,

corroborated by medical evidence and other direct as well as  circumstantial

evidence.

Testimony of eye witness - PW-1, corroborated by circumstantial evidence  as

well as scientific evidence.

Recovery of the bus in  which  incident  took  place  and  recovery  of  the

concerned  iron  rod  therefrom,  completing  the  chain  of  circumstantial

evidence, by proof of scientific evidence like DNA  analysis,  finger  print

analysis etc.
Arrest of  the  accused  and  their  identification  by  PW-1,  recovery  of

articles belonging to the prosecutrix and PW-1 from  the  accused,  pursuant

to their disclosure statement, substantiated by proof of DNA analysis.

Conspiracy of the accused in the commission of offence.

10.   While concurring with the majority, I have recorded  my  reasoning  by

considering the evidence on record in the light of settled legal  principles

and also analysed the  justifiability  of  the  punishment  awarded  to  the

accused. For proper appreciation of evidence, it is apposite to first  refer

to  the  settled  principles  and  norms  of  appreciation  of  evidence  of

prosecutrix and other evidence in a rape case.

11.   Duty of court in appreciation of evidence while dealing with cases  of

rape: Crime against women is an unlawful intrusion of her right to  privacy,

which offends her self-esteem and  dignity.   Expressing  concern  over  the

increasing crime against women, in State  of  Punjab  v.  Gurmit  Singh  and

Others (1996) 2 SCC 384, this Court held as under:-

“21. Of late, crime against women in general and rape in  particular  is  on

the increase. It is an irony that while we are  celebrating  woman’s  rights

in all spheres, we show little or no concern for her honour.  It  is  a  sad

reflection on the attitude  of  indifference  of  the  society  towards  the

violation of human dignity of the victims of sex crimes.  We  must  remember

that  a  rapist  not  only  violates  the  victim’s  privacy  and   personal

integrity, but inevitably causes serious psychological as well  as  physical

harm in the process. Rape is not merely a physical assault  —  it  is  often

destructive of the whole personality of the victim. A murderer destroys  the

physical body of his  victim,  a  rapist  degrades  the  very  soul  of  the

helpless female. The courts,  therefore,  shoulder  a  great  responsibility

while trying an accused on charges of rape. They must deal with  such  cases

with  utmost  sensitivity.   The   courts   should   examine   the   broader

probabilities of a case and  not  get  swayed  by  minor  contradictions  or

insignificant discrepancies in the statement of the prosecutrix,  which  are

not of a fatal nature,  to  throw  out  an  otherwise  reliable  prosecution

case…….” [Emphasis supplied]
12.   The above principle of  law,  declared  in  Gurmeet  Singh’s  case  is

reiterated in various cases viz., State of Rajasthan  v.  N.K.  The  Accused

(2000) 5 SCC 30; State of H.P. v. Lekh Raj and  Another  (2000)  1       SCC

247; State of H.P. v. Asha Ram (2005) 13 SCC 766.

13.   Clause (g) of sub-section (2)  of  Section  376  IPC  (prior  to  2013

Amendment Act 13 of 2013) deals with  cases  of  gang  rape.   In  order  to

establish an offence under Section 376(2)(g) IPC, read  with  Explanation  I

thereto, the prosecution must adduce evidence to  indicate  that  more  than

one accused had acted in concert and in such an event, if rape is  committed

by even one, all the accused are guilty, irrespective of the fact that  only

one or more of  them  had  actually  committed  the  act.            Section

376(2)(g) read with  Explanation  I  thus  embodies  a  principle  of  joint

liability.  But so  far  as  appreciation  of  evidence  is  concerned,  the

principles concerning the cases falling under sub-section(1) of Section  376

IPC apply.

14.   In a case of rape, like other criminal cases, onus is  always  on  the

prosecution to prove affirmatively each ingredients  of  the  offence.   The

prosecution must discharge this burden of proof to bring home the  guilt  of

the accused and this onus never shifts.  In Narender Kumar v. State (NCT  of

Delhi) (2012) 7 SCC 171, it was held as under:-

“29. However, even in a case of rape, the onus is always on the  prosecution

to  prove,  affirmatively  each  ingredient  of  the  offence  it  seeks  to

establish and such onus never shifts. It is no  part  of  the  duty  of  the

defence to explain as to how and why in a rape case  the  victim  and  other

witnesses have falsely implicated the accused. The prosecution case  has  to

stand on its own legs and cannot take support from the weakness of the  case

of defence. ……… There is an initial presumption of innocence of the  accused

and the prosecution has to bring home the offence  against  the  accused  by

reliable  evidence.  The  accused  is  entitled  to  the  benefit  of  every

reasonable doubt.”
15.   At the same time while dealing with cases of rape, the Court must  act

with utmost sensitivity and appreciate the evidence of prosecutrix  in  lieu

of settled legal principles. Courts while trying an accused  on  the  charge

of rape, must deal with the case  with  utmost  sensitivity,  examining  the

broader probabilities of a case  and  it  should  not  be  swayed  by  minor

contradictions  and  discrepancies  in  appreciation  of  evidence  of   the

witnesses which are not of a substantial character.  It is now  well-settled

that conviction for an offence of rape can be based on  the  sole  testimony

of  the   prosecutrix   corroborated   by   medical   evidence   and   other

circumstantial  evidence  such  as  the  report  of  chemical   examination,

scientific examination etc., if the same is found natural and trustworthy.

16.   Persisting notion that the testimony of victim has to be  corroborated

by other evidence must be removed. To equate a rape victim to an  accomplice

is to add insult to womanhood.  Ours is a conservative  society  and  not  a

permissive society.  Ordinarily a woman, more so, a  young  woman  will  not

stake her reputation by levelling a false charge, concerning  her  chastity.

In State of Karnataka v. Krishnappa, (2000) 4 SCC 75, it was held as under:-

“15. Sexual violence apart from being a  dehumanising  act  is  an  unlawful

intrusion of the right to privacy and sanctity of a female. It is a  serious

blow to her supreme honour and offends her  self-esteem  and  dignity  —  it

degrades and humiliates the victim  and  where  the  victim  is  a  helpless

innocent child, it leaves behind a traumatic  experience.  The  courts  are,

therefore, expected to deal with cases of sexual crime  against  women  with

utmost sensitivity. Such cases need to be dealt with sternly  and  severely.

……

16. A socially sensitised Judge, in  our  opinion,  is  a  better  statutory

armour  in  cases  of  crime  against  women  than  long  clauses  of  penal

provisions,  containing   complex   exceptions   and   provisos.   [emphasis

supplied]”
17.   There is  no  legal  compulsion  to  look  for  corroboration  of  the

prosecutrix’s testimony unless the  evidence  of  the  victim  suffers  from

serious infirmities, thereby seeking corroboration. In  Bharwada  Bhoginbhai

Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, it was held as under:-

“9. In the Indian setting, refusal to act on the testimony of  a  victim  of

sexual assault in the absence of corroboration as a rule, is  adding  insult

to injury. Why should the evidence of the girl or the  woman  who  complains

of rape or sexual molestation be viewed with the aid  of  spectacles  fitted

with lenses tinged with doubt, disbelief  or  suspicion?  To  do  so  is  to

justify the charge of male chauvinism in a male dominated society.  We  must

analyze the argument in support of the need for  corroboration  and  subject

it to relentless and remorseless cross-examination. And we must do  so  with

a logical, and not an opinionated, eye in the light  of  probabilities  with

our feet firmly planted on the soil of India and with our eyes  focussed  on

the Indian horizon. We must not be swept off the feet by the  approach  made

in the western world which has its own social milieu, its own social  mores,

its own permissive values, and its own code of life.  Corroboration  may  be

considered essential to establish a sexual offence in the  backdrop  of  the

social ecology of the western world. It is wholly unnecessary to import  the

said concept on a turnkey basis and to transplant  it  on  the  Indian  soil

regardless  of  the  altogether  different  atmosphere,  attitudes,   mores,

responses of the Indian society, and its profile. The identities of the  two

worlds are different. ………
10. By and large these factors are not relevant to  India,  and  the  Indian

conditions. Without  the  fear  of  making  too  wide  a  statement,  or  of

overstating the case, it can be said that rarely will a girl or a  woman  in

India make false allegations of  sexual  assault  on  account  of  any  such

factor as has been just enlisted. The statement is  generally  true  in  the

context of the urban as also rural society. It is also by and large true  in

the context of the sophisticated, not so sophisticated, and  unsophisticated

society. Only very rarely can one conceivably come across  an  exception  or

two and that too possibly from amongst the urban elites. Because (1) A  girl

or a woman in the tradition-bound non-permissive society of India  would  be

extremely reluctant even to admit that  any  incident  which  is  likely  to

reflect on her chastity had ever occurred. (2) She  would  be  conscious  of

the danger of being ostracized by the society or being looked  down  by  the

society including  by  her  own  family  members,  relatives,  friends,  and

neighbours. (3) She would have to brave the whole world. (4) …………
11.  …….. On principle the evidence of a victim of sexual assault stands  on

par with evidence  of  an  injured  witness.  Just  as  a  witness  who  has

sustained an injury (which is not shown or believed  to  be  self-inflicted)

is the best witness in the sense that he is least likely  to  exculpate  the

real offender, the evidence of a victim of a  sex  offence  is  entitled  to

great  weight,  absence  of   corroboration   notwithstanding.   And   while

corroboration in the form of eyewitness account of  an  independent  witness

may often be forthcoming in physical assault cases, such evidence cannot  be

expected in sex offences, having regard to the very nature of  the  offence.

……. [emphasis supplied]”
It was further held in Bharwada Bhoginbhai Hirjibhai  (supra)  that  if  the

evidence of the victim does not suffer from  any  basic  infirmity  and  the

“probabilities-factor” does not render it unworthy of credence, there is  no

reason to insist  on  corroboration  except  corroboration  by  the  medical

evidence.  The same view was taken  in  Krishan  Lal  v.  State  of  Haryana

(1980) 3 SCC 159.

18.   It is well-settled that conviction can be based on the sole  testimony

of the prosecutrix if it is implicitly reliable  and  there  is  a  ring  of

truth in it. Corroboration as a  condition  for  judicial  reliance  on  the

testimony of a prosecutrix is not requirement  of  law  but  a  guidance  of

prudence under given circumstances. In  Rajinder  alias  Raju  v.  State  of

Himachal Pradesh, (2009) 16 SCC 69, it was held as under:-

“19.  In  the  context  of  Indian  culture,  a   woman—victim   of   sexual

aggression—would rather suffer silently than to falsely implicate  somebody.

Any statement of rape is an extremely humiliating  experience  for  a  woman

and until she is a victim of sex crime, she would not blame anyone  but  the

real culprit. While  appreciating  the  evidence  of  the  prosecutrix,  the

courts must always keep in mind that no self-respecting woman would put  her

honour  at  stake  by  falsely  alleging  commission  of  rape  on  her  and

therefore,  ordinarily  a  look  for  corroboration  of  her  testimony   is

unnecessary and uncalled for. But for high improbability in the  prosecution

case, the conviction in the case of sex crime  may  be  based  on  the  sole

testimony of the prosecutrix. It has been rightly  said  that  corroborative

evidence is not an imperative component of judicial credence in  every  case

of rape nor the absence of injuries on the private parts of the  victim  can

be construed as evidence of consent.”
19.   In Raju and Others v. State of Madhya  Pradesh  (2008)  15         SCC

133, it was held as under:-

“10. …….that  ordinarily  the  evidence  of  a  prosecutrix  should  not  be

suspected and should be believed,  more  so  as  her  statement  has  to  be

evaluated on a par with that of an injured witness and if  the  evidence  is

reliable, no corroboration is necessary. ……
11. It cannot be lost sight of that rape causes the  greatest  distress  and

humiliation to the victim but at the same time a false  allegation  of  rape

can cause equal distress, humiliation and damage to  the  accused  as  well.

The accused  must  also  be  protected  against  the  possibility  of  false

implication, particularly where a large number of accused are  involved.  It

must, further, be borne in mind that the broad principle is that an  injured

witness was present  at  the  time  when  the  incident  happened  and  that

ordinarily such a witness would not tell a lie as to the actual  assailants,

but there is no presumption or any basis for assuming that the statement  of

such  a  witness  is  always  correct  or  without  any   embellishment   or

exaggeration.”
20.   In  State  of  H.P.  v.  Asha  Ram  (2005)  13  SCC  766,  this  Court

highlighted the importance of,  and  the  weight  to  be  attached  to,  the

testimony of the prosecutrix.  In para (5), it was held as under:

“5. …….. It is now a well-settled principle of law that  conviction  can  be

founded  on  the  testimony  of  the  prosecutrix  alone  unless  there  are

compelling reasons for seeking corroboration. The evidence of a  prosecutrix

is more reliable than that of an  injured  witness.  The  testimony  of  the

victim of sexual assault is  vital,  unless  there  are  compelling  reasons

which necessitate looking for corroboration of  her  statement,  the  courts

should find no difficulty in acting on the testimony of a victim  of  sexual

assault alone to convict an accused where her testimony inspires  confidence

and is found to be reliable. It is also  a  well-settled  principle  of  law

that corroboration as a condition for judicial reliance on the testimony  of

the prosecutrix is not a requirement of  law  but  a  guidance  of  prudence

under the given circumstances. The  evidence  of  the  prosecutrix  is  more

reliable than that of an  injured  witness.  Even  minor  contradictions  or

insignificant discrepancies in the statement of the prosecutrix  should  not

be a ground for throwing out an otherwise reliable prosecution case.”
21.   As held in the case of State of Punjab v. Ramdev Singh  (2004)  1  SCC

421, there is no rule of law that the testimony of  the  prosecutrix  cannot

be acted upon without corroboration in material particulars.  She stands  at

a higher pedestal than an injured witness.   However, if the Court of  facts

finds it difficult to accept the version of  the  prosecutrix  on  its  face

value, it may search for evidence, direct  or  circumstantial,  which  would

lend assurance to  her  testimony.   The  above  judgment  of  Ramdev  Singh

(supra) has been approvingly quoted in State of  U.P.  v.  Munshi  (2008)  9

    SCC 390.

22.   In a catena of decisions, this Court has held that conviction  can  be

based on the sole testimony of the  prosecutrix,  provided  it  is  natural,

trustworthy and worth being relied upon vide State of  H.P.  v.  Gian  Chand

(2001) 6 SCC 71, State of Rajasthan v. N.K. The Accused  (2000)  5  SCC  30;

State of H.P. v. Lekh Raj and Another (2000) 1 SCC 247, Wahid Khan v.  State

of Madhya Pradesh (2010) 2 SCC 9, Dinesh Jaiswal v. State of Madhya  Pradesh

(2010) 3 SCC 232; Om Prakash v. State of Haryana (2011) 14 SCC 309.

23.    Observing  that  once  the  statement  of  the  prosecutrix  inspires

confidence, conviction  can  be  based  on  the  solitary  evidence  of  the

prosecutrix and that corroboration of testimony of a prosecutrix  is  not  a

requirement of law but only a rule of prudence,  in  Narender  Kumar’s  case

(supra), this Court held as under:-

“20. It is a settled legal  proposition  that  once  the  statement  of  the

prosecutrix inspires confidence and  is  accepted  by  the  court  as  such,

conviction can be based only on the solitary  evidence  of  the  prosecutrix

and no corroboration would be required unless there are  compelling  reasons

which  necessitate  the  court   for   corroboration   of   her   statement.

Corroboration of testimony of the prosecutrix as a  condition  for  judicial

reliance is not a requirement of law but a guidance of  prudence  under  the

given  facts  and  circumstances.  Minor  contradictions  or   insignificant

discrepancies should not be a ground for throwing out an otherwise  reliable

prosecution case.”
21. A prosecutrix complaining of having been a  victim  of  the  offence  of

rape is not  an  accomplice  after  the  crime.  Her  testimony  has  to  be

appreciated on the principle of probabilities just as the testimony  of  any

other witness; a high degree of probability having been shown  to  exist  in

view of the subject-matter being a criminal charge. However,  if  the  court

finds it difficult to accept the version of  the  prosecutrix  on  its  face

value,  it  may  search   for   evidence,   direct   or   substantial   (sic

circumstantial), which may lend assurance  to  her  testimony.  (Vide  Vimal

Suresh Kamble v. Chaluverapinake Apal S.P. (2003) 3 SCC 175  and  Vishnu  v.

State of Maharashtra (2006) 1 SCC 283.)”
24.   Courts should not attach undue importance to discrepancies, where  the

contradictions sought to be brought up from the evidence of the  prosecutrix

are immaterial and of no consequence.  Minor variations in the testimony  of

the witnesses are often the hallmark of  truth  of  the  testimony.  Trivial

discrepancies ought not to obliterate an otherwise acceptable evidence.  Due

to efflux of time, there are bound to be minor  contradictions/discrepancies

in the statement  of  the  prosecutrix  but  such  minor  discrepancies  and

inconsistencies are only natural since when truth is sought to be  projected

through human, there are bound to be certain  inherent  contradictions.  But

as held in Om Prakash v. State of U.P.        (2006) 9 SCC  787,  the  Court

should examine the broader probabilities of a case.

25.   There is no quarrel over the proposition  that  the  evidence  of  the

prosecutrix is to be believed by examining the broader  probabilities  of  a

case.  But where there are serious infirmities and inherent  inconsistencies

in evidence; the  prosecutrix  making  deliberate  improvement  on  material

point with a view to rule out consent  on  her  part,  no  reliance  can  be

placed upon the testimony of the prosecutrix.  In Tameezuddin v. State  (NCT

of Delhi), (2009) 15 SCC 566, it was held as under:-

“9. It is true that in a case of rape the evidence of the  prosecutrix  must

be given predominant consideration, but to hold that this  evidence  has  to

be accepted even if the story is  improbable  and  belies  logic,  would  be

doing violence to the very  principles  which  govern  the  appreciation  of

evidence in a criminal matter. We are of  the  opinion  that  the  story  is

indeed improbable.”
The same view was taken in Suresh N. Bhusare v. State of Maharashtra  (1999)

1 SCC 220 and Jai Krishna Mandal v. State of Jharkhand (2010) 14 SCC 534.

26.   On the anvil of  the  above  principles,  let  us  test  the  case  of

prosecution and  version  of  the  prosecutrix  as  depicted  in  her  dying

declaration.

27.   Dying Declaration: Prosecution relies upon  three  dying  declarations

of the victim:- (i)  Statement of victim recorded by PW-49 Dr. Rashmi  Ahuja

(Ex. PW-49/A) when  the  victim  was  brought  to  Safdarjung  Hospital  and

admitted in the Gynae casualty at about  11:15  p.m.  on  16.12.2012  –  the

victim gave a brief account of the incident  stating  that  she  went  to  a

movie with her friend  Awnindra  (PW-1)  and  that  after  the  movie,  they

together boarded the bus from Munirka bus stop in which she  was  gang-raped

and that she was thrown away from the moving bus thereafter, along with  her

friend; (ii) Second dying declaration recorded  by  PW-27  Usha  Chaturvedi,

SDM (Ex. PW-27/A) on 21.12.2012 at about 09:00 p.m. – the  victim  gave  the

details of the entire incident specifying the role of  each  accused:  gang-

rape, unnatural sex committed on her, the injuries inflicted by  accused  on

her vagina and rectum, by use of iron rod and by insertion of hands  in  her

private parts; description of the bus, robbery and lastly throwing both  the

victim and also her boyfriend out of the moving bus in naked condition  near

Mahipalpur flyover;  (iii) Third dying declaration recorded by  PW-30  Pawan

Kumar, Metropolitan Magistrate (Ex.PW-30/D) on  25.12.2012  at  1:00  PM  at

ICU, Safdarjung  Hospital  by  putting  questions  in  multiple  choice  and

recording answers through such questions  by  gestures  or  writings  –  the

victim wrote the names of  the  accused  in  the  third  dying  declaration.

Evidence of PW-28 Dr. Rajesh Rastogi and the certificate (Ex.PW-28/A)  given

by him establishes that the victim was in a fit  mental  condition  to  give

the statement through gestures.  Furthermore, PW-75  Asha  Devi,  mother  of

the victim in her cross-examination also deposed that she had  a  talk  with

her daughter on the night of 25.12.2012, which shows  that  the  victim  was

conscious, communicative and oriented.   Contentions  urged,  assailing  the

fit mental condition of the victim have no merit.

28.   With regard to the contention that  there  were  improvements  in  the

dying declarations, I am of he view, the victim was gang-raped and iron  rod

was inserted in her private parts in the incident and the victim  must  have

been pushed to deep  emotional  crisis.   Rape  deeply  affects  the  entire

psychology of the woman and humiliates her, apart  from  leaving  her  in  a

trauma.  The testimony of  the  rape  victim  must  be  appreciated  in  the

background  of  the  entire  case  and  the  trauma  which  the  victim  had

undergone.  As a matter of record, PW-49 Dr. Rashmi Ahuja, at  around  11:15

p.m. on the night of 16.12.2012, had attended to the prosecutrix as soon  as

she was brought to the hospital and had prepared casualty/OPD  Card  of  the

prosecutrix      (Ex. PW-49/A), as well as her MLC (Ex. PW-49/B).   At  that

time, PW-49 had found her cold and clammy  due  to  vaso-constriction.   The

prosecutrix was found shivering, for which she was administered IV line  and

warm saline in order to stabilize her pulse and BP.  When the victim was  in

such a condition, the victim cannot be expected to give  minute  details  of

the occurrence like overt act played by the accused, insertion of  iron  rod

etc.   There is no  justification  for  blowing  up  such  omission  out  of

proportion in the statement recorded by PW-49 Dr.  Rashmi  Ahuja  and  doubt

the same.  In the occurrence, physical and emotional balance of  the  victim

must have been greatly disturbed.  Startled by the  incident,  whatever  the

victim was able to momentarily recollect, she narrated to PW-49  and  placed

in that position non-mention of  minute  details  in  Ex.PW-49/A  cannot  be

termed as a material omission.

29.   Dying declaration is a substantial piece of evidence  provided  it  is

not tainted with malice and is not made in  an  unfit  mental  state.   Each

case of dying declaration  has  to  be  considered  in  its  own  facts  and

circumstances in which it is  made.   However,  there  are  some  well-known

tests to ascertain as to whether the statement  was  made  in  reference  to

cause of death of its maker and whether the same could  be  relied  upon  or

not.  The Court also has to satisfy as to whether the deceased was in a  fit

mental state to make the statement.  The Court  must  scrutinize  the  dying

declaration carefully and ensure that the declaration is not the  result  of

tutoring, prompting or imagination. Once the Court  is  satisfied  that  the

declaration is true and voluntary, it can base its  conviction  without  any

further corroboration.  It cannot be laid down as an absolute  rule  of  law

that the dying declaration cannot form the sole basis of  conviction  unless

it is corroborated.  The rule requiring corroboration is merely  a  rule  of

prudence. That the deceased had the opportunity to observe and identify  the

assailants and was in a fit state to make the declaration.  [K.  Ramachandra

Reddy and Anr. v. Public Prosecutor (1976) 3 SCC 618]
30.   The principles governing dying  declarations  have  been  exhaustively

laid down in several judicial pronouncements. In Paniben (Smt.) v. State  of

Gujarat, (1992) 2 SCC 474, this Court referred  to  a  number  of  judgments

laying down the principles governing dying declaration.  In this  regard,  I

find it apposite to quote the following from Paniben (supra) as under:-

“18. Though  a  dying  declaration  is  entitled  to  great  weight,  it  is

worthwhile to note that the accused has no power of cross-examination.  Such

a power is essential for eliciting the truth as an obligation of oath  could

be. This is the reason the Court also insists  that  the  dying  declaration

should be of such a nature as to inspire full confidence  of  the  Court  in

its correctness. The Court  has  to  be  on  guard  that  the  statement  of

deceased was not as a result of either tutoring, prompting or a  product  of

imagination. The Court must be further satisfied that the deceased was in  a

fit state of mind after a clear opportunity  to  observe  and  identify  the

assailants. Once the Court is satisfied that the declaration  was  true  and

voluntary, undoubtedly, it can  base  its  conviction  without  any  further

corroboration. It cannot be laid down as an absolute rule of  law  that  the

dying declaration cannot form the sole basis  of  conviction  unless  it  is

corroborated.  The  rule  requiring  corroboration  is  merely  a  rule   of

prudence. This Court has laid  down  in  several  judgments  the  principles

governing dying declaration, which could be summed up as under:

(i) There is neither rule of law nor  of  prudence  that  dying  declaration

cannot be acted upon without corroboration. (Munnu Raja  v.  State  of  M.P.

(1976) 3 SCC 104)
(ii) If the Court is satisfied  that  the  dying  declaration  is  true  and

voluntary it can base conviction on it,  without  corroboration.  (State  of

U.P. v. Ram Sagar Yadav (1985) 1 SCC 522; Ramawati Devi v.  State  of  Bihar

(1983) 1 SCC 211).

(iii) This Court has to scrutinise the dying declaration carefully and  must

ensure that the declaration is not the  result  of  tutoring,  prompting  or

imagination. The deceased  had  opportunity  to  observe  and  identify  the

assailants and was in a fit state to make the declaration.  (K.  Ramachandra

Reddy v. Public Prosecutor (1976) 3 SCC 618).

(iv) Where dying declaration is suspicious  it  should  not  be  acted  upon

without corroborative evidence. (Rasheed Beg v. State of M.P. (1974)  4  SCC

264)
(v) Where the deceased was  unconscious  and  could  never  make  any  dying

declaration the evidence with regard to it is to be  rejected.  (Kake  Singh

v. State of M.P. (1981) Supp. SCC 25)
(vi) A dying declaration which suffers from infirmity cannot form the  basis

of conviction. (Ram Manorath v. State of U.P. (1981) 2 SCC 654)
(vii) Merely because a dying declaration does not contain the details as  to

the occurrence,  it  is  not  to  be  rejected.  (State  of  Maharashtra  v.

Krishnamurti Laxmipati Naidu (1980) Supp. SCC 455)
(viii) Equally, merely because it  is  a  brief  statement,  it  is  not  be

discarded.  On  the  contrary,  the  shortness  of  the   statement   itself

guarantees truth. Surajdeo Oza v. State of Bihar (1980) Supp. SCC 769)
(ix) Normally the court in order to satisfy whether deceased was  in  a  fit

mental condition to make the  dying  declaration  look  up  to  the  medical

opinion. But where the eye witness has said that the deceased was in  a  fit

and conscious state to make this  dying  declaration,  the  medical  opinion

cannot prevail. (Nanahau Ram v. State of M.P. (1988) Supp. SCC 152)
(x) Where the prosecution version differs from the version as given  in  the

dying declaration, the said declaration cannot  be  acted  upon.  (State  of

U.P. v. Madan Mohan (1989) 3 SCC 390)”
The  above  well-settled  tests  relating  to  dying  declarations  and  the

principles have been elaborately considered in a number of judgments.  [Vide

Khushal Rao v. State of Bombay, AIR 1958 SC 22; State of  Uttar  Pradesh  v.

Ram Sagar Yadav, (1985) 1 SCC 552;  State  of  Orissa  v.  Bansidhar  Singh,

(1996) 2 SCC 194; Panneerselvam v. State of Tamil Nadu (2008)  17  SCC  190;

Atbir v. Govt. of NCT of Delhi (2010) 9 SCC 1 and Umakant and Anr. v.  State

of Chhattisgarh (2014) 7 SCC 405].

31.   Multiple Dying Declarations: In cases where there are  more  than  one

dying declarations, the Court should consider whether  they  are  consistent

with  each  other.   If  there  are  inconsistencies,  the  nature  of   the

inconsistencies must be examined as to whether they  are  material  or  not.

In cases where there are more than one dying declaration, it is the duty  of

the Court to consider each  one  of  them  and  satisfy  itself  as  to  the

voluntariness and reliability of the declarations.  Mere fact  of  recording

multiple dying declarations does  not  take  away  the  importance  of  each

individual  declaration.   Court  has  to  examine  the  contents  of  dying

declaration in the light of various  surrounding  facts  and  circumstances.

This  Court  in  a  number  of  cases,  where  there  were  multiple   dying

declarations, consistent in material particulars not being contradictory  to

each  other,  has  affirmed  the  conviction.   [Vide  Vithal  v.  State  of

Maharashtra (2006) 13 SCC 54].

32.   In Amol Singh v. State of Madhya  Pradesh  (2008)  5  SCC  468,  while

discarding  the  two  inconsistent  dying  declarations,   laid   down   the

principles for consideration of multiple dying declarations as under:-

“13. Law relating to appreciation of evidence in the form of more  than  one

dying declaration is well settled. Accordingly, it is not the  plurality  of

the dying declarations but the reliability thereof that adds weight  to  the

prosecution case. If a dying declaration is found to be voluntary,  reliable

and made in fit  mental  condition,  it  can  be  relied  upon  without  any

corroboration.  The  statement  should  be  consistent  throughout.  If  the

deceased had several opportunities of making such dying  declarations,  that

is to say, if there are more than  one  dying  declaration  they  should  be

consistent. (See Kundula Bala Subrahmanyam v. State of  A.P.  (1993)  2  SCC

684)  However,  if  some  inconsistencies  are  noticed  between  one  dying

declaration and the other, the court  has  to  examine  the  nature  of  the

inconsistencies,  namely,  whether  they  are   material   or   not.   While

scrutinising  the  contents  of  various  dying  declarations,  in  such   a

situation, the court has to examine the same in the  light  of  the  various

surrounding facts and circumstances.”
33.   In Ganpat Mahadeo Mane v. State of  Maharashtra  (1993)  Supp.(2)  SCC

242, there were three dying declarations. One recorded by  the  doctor;  the

second recorded by the police constable and also attested by the doctor  and

the third dying declaration recorded by the Executive Magistrate  which  was

endorsed by the doctor.   Considering  the  third  dying  declaration,  this

Court held that  all  the  three  dying  declarations  were  consistent  and

corroborated by medical evidence and other circumstantial evidence and  that

they did not suffer from any infirmity.

34.   In Lakhan v. State of M.P. (2010) 8 SCC 514, this Court  considered  a

similar situation where in the first dying declaration  given  to  a  police

officer was more elaborate and the subsequent dying declaration recorded  by

the Judicial Magistrate lacked certain  information  given  earlier.   After

examining the contents of the two dying declarations, this Court  held  that

there was no inconsistency between two dying  declarations  and  non-mention

of certain features in the  dying  declarations  recorded  by  the  Judicial

Magistrate does not make both the dying declarations inconsistent.

35.   In the light of the above principles, I  now  advert  to  analyze  the

facts of the present case.  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 moving bus in  naked  condition.

In the second dying declaration, she has also stated that the  accused  were

addressing each other  with  the  names  like,  “Ram  Singh,  Thakur,  Raju,

Mukesh, Pawan and Vinay”.  In the second  dying  declaration,  though  there

are improvements in giving details of the incident,  names  of  the  accused

etc., there are no material contradictions  between  the  first  and  second

dying declaration (Ex.PW-49/A and Ex.PW-27/A).

36.   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.   The  third  dying

declaration  (Ex.PW-30/D)  is  found  consistent  with   the   earlier   two

declarations.  It conclusively establishes  that  the  victim  was  brutally

gang-raped, beaten by iron rod, subjected to other harsh atrocities and  was

finally dumped at an unknown place.  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.

37.   As per the settled law governing dying  declarations,  even  if  there

are minor  discrepancies  in  the  dying  declarations,  in  the  facts  and

circumstances  of  the  case,  the  Court  can   disregard   the   same   as

insignificant. A three-Judge Bench of this Court in Abrar v. State of  Uttar

Pradesh  (2011)  2  SCC  750,  held  that  it  is   practical   that   minor

discrepancies in recording dying declarations may  occur  due  to  pain  and

suffering of the victim, in case the declaration  is  recorded  at  multiple

intervals and thus, such discrepancies need not be given much emphasis.

“12. It is true that there are some discrepancies in the dying  declarations

with regard to the presence or otherwise of a  light  or  a  torch.  To  our

mind, however, these are so insignificant that they call for no  discussion.

It is also clear from the evidence that the injured had been in  great  pain

and  if  there  were  minor  discrepancies  inter   se   the   three   dying

declarations, they were to be accepted as something normal. The trial  court

was thus clearly wrong in rendering a judgment of acquittal solely  on  this

specious ground. We, particularly, notice that  the  dying  declaration  had

been recorded by the Tahsildar after the doctor had certified the victim  as

fit to make a statement. The doctor also appeared  in  the  witness  box  to

support the statement of the Tahsildar. We are, therefore, of  the  opinion,

that no fault whatsoever could be found in the dying declarations.”
38.   When a dying  declaration  is  recorded  voluntarily,  pursuant  to  a

fitness report of a certified doctor, nothing much remains to be  questioned

unless, it is proved that the dying declaration was tainted  with  animosity

and a result  of  tutoring.   Especially,  when  there  are  multiple  dying

declarations minor variations does  not  affect  the  evidentiary  value  of

other dying declarations whether recorded prior or subsequent  thereto.   In

Ashabai and Anr. v. State of Maharashtra (2013) 2 SCC 224, it  was  held  as

under:

“15. ….As rightly observed by the High Court, the law does not  insist  upon

the corroboration of dying  declaration  before  it  can  be  accepted.  The

insistence of corroboration to  a  dying  declaration  is  only  a  rule  of

prudence. When  the  Court  is  satisfied  that  the  dying  declaration  is

voluntary, not tainted by tutoring or animosity, and is  not  a  product  of

the imagination of the declarant, in that event, there is no  impediment  in

convicting the accused on the basis of such dying  declaration.  When  there

are  multiple  dying  declarations,  each  dying  declaration  has   to   be

separately assessed and evaluated and assess independently on its own  merit

as to its evidentiary value and one cannot be rejected  because  of  certain

variation in the other.”
39.   Considering the present case on the anvil of the above  principles,  I

find that though there was time gap between the declarations, all the  three

dying declarations are consistent with each other and there are no  material

contradictions.  All the three dying declarations  depict  truthful  version

of the  incident,  particularly  the  detailed  narration  of  the  incident

concerning the rape committed on the victim, insertion of iron rod  and  the

injuries caused to her vagina and rectum, unnatural  sex  committed  on  the

victim and throwing the victim and PW-1 out of  the  moving  bus.   All  the

three  dying  declarations  being  voluntary,  consistent  and  trustworthy,

satisfy the test of reliability.

40.    Dying  Declaration  by  gestures  and  nods:       Adverting  to  the

contention that the third dying  declaration  made  through  gestures  lacks

credibility, it is seen that  the  multiple  choice  questions  put  to  the

prosecutrix by PW-30 Pawan Kumar, Metropolitan Magistrate, were  simple  and

easily answerable through nods and gestures.  That apart,  before  recording

the dying  declaration,  PW-30  Pawan  Kumar,  Metropolitan  Magistrate  had

satisfied himself about fit mental state  of  the  victim  to  record  dying

declaration through nods and gestures.  There is nothing  proved  on  record

to show that the mental capacity of the victim was impaired, so as to  doubt

the third dying declaration.  As the  victim  was  conscious,  oriented  and

meaningfully communicative, it is natural that the victim was in a  position

to write the names of the accused persons and also about  the  use  of  long

iron rod.  The third dying declaration recorded through  nods  and  gestures

and also by the victim’s own writing,  writing  the  names  of  the  accused

inspires confidence in the Court; the same was rightly relied  upon  by  the

trial Court as well as the High Court.

41.    Dying  declaration  made  through  signs,  gesture  or  by  nods  are

admissible as evidence, if proper care was taken at the  time  of  recording

the statement. The only caution the Court ought to take is  to  ensure  that

the person recording the dying declaration was able to correctly notice  and

interpret the gestures or nods of the declarant.  While recording the  third

dying declaration, signs/gestures made by the victim,  in  response  to  the

multiple  choice  questions  put  to  the  prosecutrix  are  admissible   in

evidence.

42.   A dying declaration need not necessarily be by words  or  in  writing.

It can be by gesture or by nod.  In Meesala Ramakrishan  v.  State  of  A.P.

(1994) 4 SCC 182, this Court held as under:-

“20. …..that dying declaration recorded on the basis of  nods  and  gestures

is not only admissible but possesses evidentiary value, the extent of  which

shall depend upon who  recorded  the  statement,  what  is  his  educational

attainment, what gestures and nods were made, what were the questions  asked

—  whether  they  were  simple  or  complicated  —  and  how  effective   or

understandable the nods and gestures were.”
The same view was reiterated in B. Shashikala v. State  of  A.P.  (2004)  13

SCC 249.

43.   In the case of rape and sexual assault, the  evidence  of  prosecutrix

is very crucial and if it inspires confidence of  the  court,  there  is  no

requirement of law to insist upon corroboration of the same  for  convicting

the  accused  on  the  basis  of  it.   Courts  are  expected  to  act  with

sensitivity  and  appreciate  the  evidence  of  the  prosecutrix   in   the

background of the entire facts of the case and  not  in  isolation.  In  the

facts and circumstances of  the  present  case  as  the  statements  of  the

prosecutrix in the form of three  dying  declarations  are  consistent  with

each other and there are no material contradiction, they can  be  completely

relied upon without corroboration.  In the  present  case,  the  prosecutrix

has made a truthful statement and the prosecution has established  the  case

against the respondents beyond reasonable doubt. The victim also  wrote  the

names  of  the  accused  persons  in  her  own  hand-writing  in  the  dying

declaration recorded by PW-30    (Ex.PW-30/D).  Considering  the  facts  and

circumstances of the present case and upon appreciation of the evidence  and

material on record, I find all  the  three  dying  declarations  consistent,

true and voluntary, satisfying  the  test  of  probabilities  factor.   That

apart,  the  dying  declarations  are  well-  corroborated  by  medical  and

scientific evidence adduced by the prosecution. Moreover, the same has  been

amply corroborated by the testimony of eye witness-PW-1.

44.   Corroboration of Dying declaration by  Medical  Evidence:-  The  dying

declaration is amply corroborated by medical evidence depicting injuries  to

vagina and internal injuries to rectum and recto-vaginal septum as noted  by

PW-49 Dr. Rashmi Ahuja and PW-50 Dr, Raj Kumar Chejara.   On  the  night  of

16.12.2012, the prosecutrix was medically examined  by  PW-49  who  recorded

her injuries and statement in the MLC (Ex. PW-49/B). On  local  examination,

a sharp cut over right labia and a  6  cm  long  tag  of  vagina  was  found

hanging outside the  introitus.  Vaginal  examination  showed  bleeding  and

about 7 to 8 cm long posterior vaginal wall tear. A rectal tear of  about  4

to 5 cm was also noticed communicating with the  vaginal  tear.  Apart  from

the said injuries to the private parts  of  the  prosecutrix,  guarding  and

rigidity was also found in her abdomen and  several  bruises  and  marks  on

face were noticed. Bruises and abrasions around both the eyes  and  nostrils

were also found. Lips were found edematous and left side of  the  mouth  was

injured by a small laceration. Bite marks  over  cheeks  and  breast,  below

areola, were also present. Bruises over the left breast  and  bite  mark  in

interior left quadrant were prominent.

45.   During  surgery,  conducted  on  16/17.12.2012  PW-50  Dr.  Raj  Kumar

Chejara (Ex.PW-50/A  and  Ex.  PW-50/B)  noted  contusion  and  bruising  of

jejunum, large  bowel,  vaginal  tear,  and  completely  torn  recto-vaginal

septum. Small and large bowels were affected and were extremely bad for  any

definitive repair. It was also noted that  rectum  was  longitudinally  torn

and the tear was  continuing  upward  involving  sigmoid  colon,  descending

colon which was splayed open.  There  were  multiple  perforations  at  many

places of ascending colon and calcum. Terminal illeum approximately one  and

a half feet loosely  hanging  in  the  abdominal  cavity  avulsed  from  its

mesentery.  Rest of the small bowel was non-existent with  only  patches  of

mucosa at  places  and  borders  of  the  mesentery  were  contused.   While

performing  second  surgery  on  19th  December,  2012,  surgery  team  also

recorded findings that rectum was longitudinally torn on anterior aspect  in

continuation with peritorial tear and other internal  injuries.   On  26-12-

2012 the condition of the prosecutrix was examined and  it  was  decided  to

shift her abroad for further treatment  and  she  was  shifted  by  an  air-

ambulance to Singapore Mount Elizabeth Hospital.  The  prosecutrix  died  at

Mount Elizabeth Hospital, Singapore on 29-12-2012  at  04:45  AM.  Cause  of

death is stated as  sepsis  with  multi  organ  failure  following  multiple

injuries. (Ex.PW-34/A)
46.   Injuries to vagina, rectum and recto-vaginal septum as noted by    PW-

49 Dr. Rashmi Ahuja and PW-50 Dr. Raj Kumar Chejara;  and  the  injuries  as

depicted in  the  post-mortem  certificate,  including  the  other  external

injuries which are evidently marks of violence during the incident,  exhibit

the cruel nature of  gang  rape  committed  on  the  victim.   The  profused

bleeding from vagina and tag of vagina hanging outside;   completely  recto-

vaginal septum clearly demonstrate the violent act of  gang  rape  committed

on the victim. The medical reports including  the  operation  theatre  notes

(Ex. PW-50/A and 50/B) and the  injuries  thereon  indicates  the  pain  and

suffering which the victim had undergone due to multiple organ  failure  and

other injuries caused by insertion of iron rod.

47.   If considered on the anvil of settled legal  principles,  injuries  on

the person of a rape victim is not even a  sine  qua  non  for  proving  the

charge of rape, as held in Joseph v. State of Kerala (2000) 5 SCC  197.  The

same principle was reiterated in State of Maharashtra  v.  Suresh  (2000)  1

SCC 471.  As rightly held in State of Rajasthan v. N.K., The Accused  (2000)

5 SCC 30, absence of injury on the person of the victim is  not  necessarily

an evidence of falsity of the allegations of rape or evidence of consent  on

the part of the prosecutrix.  In the present case,  the  extensive  injuries

found on the vagina/private parts of the body of  the  victim  and  injuries

caused to the internal organs and all over the body, clearly show  that  the

victim was ravished.

48.   Corroboration of dying declaration by scientific  evidence:-  The  DNA

profile generated from blood-stained pants, t-shirts and  jackets  recovered

at the behest of A-2 Mukesh matched with the  DNA  profile  of  the  victim.

Likewise, the DNA profile generated from the blood-stained jeans and  banian

recovered at the behest of A-3 Akshay matched with the DNA  profile  of  the

victim. DNA profile generated from the blood-stained underwear, chappal  and

jacket recovered at the behest of A-4 Vinay matched with the DNA profile  of

the victim.   DNA  profiles  generated  from  the  clothes  of  the  accused

recovered at  their  behest  consistent  with  that  of  the  victim  is  an

unimpeachable evidence incriminating the  accused  in  the  occurrence.   As

submitted by the prosecution, there is no  plausible  explanation  from  the

accused as to the matching of DNA profile of the victim  with  that  of  the

DNA profile generated from the clothes of  the  accused.  The  courts  below

rightly took note of the DNA analysis report in finding the accused  guilty.

49.   Bite marks on the chest of the victim and  Odontology  Report:  It  is

also to be noted that the photographs of bite marks found  on  the  body  of

the victim, lifted by PW-66 Shri Asghar Hussain were examined by  PW-71  Dr.

Ashith B. Acharya. The analysis shows that at least three  bite  marks  were

caused by accused Ram Singh whereas one bite mark  has  been  identified  to

have been most likely caused by accused Akshay. This  aspect  of  Odontology

Report has been elaborately discussed by the High Court in  paragraphs  (91)

to (94) of its judgment.  Odontology Report which links  accused  Ram  Singh

and accused Akshay, with the case, strengthens the prosecution  case  as  to

their involvement.

50.   Going by the version of the prosecutrix, as per the dying  declaration

and the evidence adduced, in  particular  medical  evidence  and  scientific

evidence, I find the evidence of the prosecutrix being  amply  corroborated.

As discussed earlier, in  rape  cases,  Court  should  examine  the  broader

probabilities  of  a  case  and  not  get  swayed  by  discrepancies.    The

conviction can be based even on  the  sole  testimony  of  the  prosecutrix.

However, in this case, dying declarations recorded from the prosecutrix  are

corroborated  in  material  particulars  by:-  (i)  medical  evidence;  (ii)

evidence of injured witness PW-1; (iii) matching of DNA profiles,  generated

from blood-stained clothes of the accused, iron rod recovered at the  behest

of deceased accused Ram Singh and various articles recovered  from  the  bus

with the DNA profile of the victim;  (iv)  recovery  of  belongings  of  the

victim at the behest of the accused, viz. debit card recovered from A-1  Ram

Singh  and  Nokia  mobile  from  A-4  Vinay.  The  dying  declarations  well

corroborated by medical and scientific evidence strengthen the case  of  the

prosecution by conclusively connecting the accused with the crime.

51.   Use of Iron Rod and death of the victim: Case of  the  prosecution  is

that  the  accused  brutally  inserted  iron  rod  in  the  vagina  of   the

prosecutrix and  pulled  out  internal  organs  of  the  prosecutrix.    The

defence refuted the use of iron rod by the accused on the  ground  that  the

complainant as well as the victim did not mention the use of  iron  rods  in

their first statements.  Contention of  the  appellants  is  that  when  the

victim had given details of the entire incident to PW-49 Dr.  Rashmi  Ahuja,

if iron rod had been used, she would not have omitted to mention the use  of

iron rods in the incident.  We do not find force in such  a  contention,  as

ample reliable evidence are proved on record which lead to the  irresistible

conclusion that  iron  rod  was  used  and  it  was  not  a  mere  piece  of

concoction.

52.   Use of iron rods and insertion of the same in  the  private  parts  of

the victim is established by the second dying declaration  recorded  by  SDM

PW-27 Usha Chaturvedi, where the victim has given a detailed account of  the

incident, role of  the  accused,  gang  rape  committed  on  her  and  other

offences including the use of iron  rods.   The  brutality  with  which  the

accused persons inserted iron rod in the rectum and  vagina  of  the  victim

and took out her internal organs  from  the  vaginal  and  anal  opening  is

reflected in Ex.PW- 49/A. Further, medical opinion of  PW-49  (Ex.  PW-49/G)

stating that the recto-vaginal injury could be caused by the rods  recovered

from the bus, strengthens the statement of the victim  and  the  prosecution

version.  When the second and third dying declarations  of  the  prosecutrix

are well corroborated by the medical evidence, non-mention of  use  of  iron

rods in prosecutrix’s statement to PW-49 Dr.  Rashmi  Ahuja  (Ex.  PW-49/A),

does not  materially  affect  the  credibility  of  the  dying  declaration.

Insertion of iron rod in the private  parts  of  the  prosecutrix  is  amply

established by the nature of multiple injuries caused to jejunum and  rectum

which was longitudinally torn, tag of vagina  hanging  out;  and  completely

torn recto-vaginal septum.

53.   At the behest of accused Ram Singh two iron rods (Ex.P-49/1 and  Ex.P-

49/2) were recovered from the shelf of the driver's cabin vide seizure  Memo

Ex.PW-74/G.   The  blood-stained  rods  deposited  in  the   Malkhana   were

thereafter sent for chemical analysis.  The DNA  report  prepared  by  PW-45

Dr. B.K Mohapatra, indicates that the DNA profile developed from the  blood-

stained iron rods  is  consistent  with  the  DNA  profile  of  the  victim.

Presence of blood on  the  iron  rods  and  the  DNA  profile  of  which  is

consistent with the DNA profile of the victim  establishes  the  prosecution

case as to the alleged use of iron rods in the incident.

54.   Evidence of PW-1: In his  first  statement  made  on  16.12.2012,  eye

witness PW-1 stated that he  accompanied  the  prosecutrix  to  Select  City

Mall, Saket, New Delhi in an auto from Dwarka, New Delhi where they  watched

a movie till about 08:30 p.m.  After leaving the Mall, PW-1 and  the  victim

took an auto to Munirka from where they boarded the fateful bus.  After  the

prosecutrix and PW-1 boarded  the  bus,  the  accused  surrounded  PW-1  and

pinned him down in front side of the  bus.   While  the  accused  Vinay  and

Pawan held PW-1, the other three accused committed rape  on  the  victim  on

the rear side of the bus.  Thereafter, other  accused  held     PW-1,  while

Vinay and Pawan committed rape on the victim.  Later accused Mukesh who  was

earlier driving the bus, committed rape on the victim.  After the  incident,

PW-1 and the prosecutrix were thrown out of the moving bus, near  Mahipalpur

flyover. In the  incident,  PW-1  himself  sustained  injuries  which  lends

assurance to his credibility.

55.   That PW-1 accompanied the victim to Select City Mall and that  he  was

with the victim till the end, is proved by ample evidence.  As per the  case

of the prosecution, on the fateful day, the complainant and the  prosecutrix

had gone to Saket Mall to see  a  movie.  CCTV  footage  produced  by  PW-25

Rajender Singh Bisht in two  CDs  (Ex.PW-25/C-1  and  PW-25/C-2)  and  seven

photographs (Ex.PW-25/B-1 to Ex.PW-25/B-7) corroborate the version  of  PW-1

that the complainant and the victim were present at  Saket  Mall  till  8:57

p.m. The certificate under Section 65-B of the  Indian  Evidence  Act,  1872

with respect to the said footage is  proved  by  PW-26  Shri  Sandeep  Singh

(Ex.PW-26/A) who is the CCTV operator at Select City Mall.

56.   The computer generated electronic record in evidence, admissible at  a

trial is proved in the manner specified in  Section  65-B  of  the  Evidence

Act.  Sub-section (1) of Section 65 of the  Evidence  Act  makes  electronic

records admissible as a document, paper  print  out  of  electronic  records

stored in optical or magnetic media produced by a computer, subject  to  the

fulfillment of the conditions specified in sub-section (2) of  Section  65-B

of the Evidence Act.  When those conditions are  satisfied,  the  electronic

record becomes  admissible  in  any  proceeding  without  further  proof  or

production of the original, as evidence  of  any  of  the  contents  of  the

original or any fact stated therein of which direct evidence is  admissible.

 Secondary evidence of contents of document can also be  led  under  Section

65 of the Evidence Act.

57.   Having carefully gone through the deposition of PW-1, I find that  his

evidence, even  after  lengthy  cross  examination,  remains  unshaken.  The

evidence of a witness is not to  be  disbelieved  simply  because  of  minor

discrepancies.  It is to be examined whether he was present or  not  at  the

crime scene and whether he is telling the truth or  not.  PW-1  has  clearly

explained as to how he happened to be with the victim  and  considering  the

cogent evidence adduced by the  prosecution,  presence  of  PW-1  cannot  be

doubted in any manner. PW-1 himself was injured in the incident and  he  was

admitted in the Casualty Ward, where PW-51 Dr. Sachin  Bajaj  examined  him.

As per Ex.PW-51/A, lacerated wound over  the  vertex  of  scalp,  lacertated

wound over left upper lip and abrasion over right knee  were  found  on  the

person of PW-1.  Testimony of PW-1 being testimony  of  an  injured  witness

lends credibility to  his  evidence  and  prosecution’s  case.   As  rightly

pointed out by the Courts below, no convincing grounds exist to discard  the

evidence of PW-1, an injured witness.

58.   The question of the weight to  be  attached  to  the  evidence  of  an

injured witness has been extensively discussed by this Court  in  Mano  Dutt

and Anr. v State of Uttar Pradesh  (2012)  4  SCC  79.   After  exhaustively

referring to various judgments on this point, this Court held as under :-

“31. We may merely refer to Abdul Sayeed v. State of  M.P.(2010)10  SCC  259

where this Court held as under: (SCC pp. 271-72, paras 28-30)
“28. The question of the weight to be attached to the evidence of a  witness

that  was  himself  injured  in  the  course  of  the  occurrence  has  been

extensively discussed by this Court. Where a witness to the  occurrence  has

himself been injured in the incident, the testimony of  such  a  witness  is

generally considered to be very reliable, as he  is  a  witness  that  comes

with a built-in guarantee of his presence at the scene of the crime  and  is

unlikely to spare his actual assailant(s)  in  order  to  falsely  implicate

someone. ‘Convincing evidence is required to discredit an injured  witness.’

[Vide Ramlagan Singh v. State of Bihar(1973) 3 SCC  881,  Malkhan  Singh  v.

State of U.P.(1975) 3 SCC 311, Machhi Singh v. State of Punjab (1983) 3  SCC

470, Appabhai v. State of Gujarat1988 Supp  SCC  241,  Bonkya  v.  State  of

Maharashtra(1995) 6 SCC 447, Bhag Singh v. State  of  Punjab  (1997)  7  SCC

712, Mohar v. State of U.P.(2002) 7 SCC 606 (SCC p.  606b-c),  Dinesh  Kumar

v. State of Rajasthan(2008) 8 SCC 270, Vishnu v.  State  of  Rajasthan(2009)

10 SCC 477, Annareddy Sambasiva Reddy v. State of A.P.(2009) 12 SCC 546  and

Balraje v. State of Maharashtra(2010) 6 SCC 673.]

29. While deciding this issue, a similar view was taken in Jarnail Singh  v.

State of Punjab(2009) 9 SCC 719 where  this  Court  reiterated  the  special

evidentiary status accorded to the  testimony  of  an  injured  accused  and

relying on its earlier judgments held as under: (SCC pp. 726-27,  paras  28-

29)

‘28. Darshan Singh (PW 4) was an injured witness. He had  been  examined  by

the doctor. His testimony could not be brushed aside lightly. He  had  given

full details of the incident  as  he  was  present  at  the  time  when  the

assailants reached the tubewell. In Shivalingappa Kallayanappa v.  State  of

Karnataka1994 Supp (3) SCC 235 this Court has held that  the  deposition  of

the injured witness should be relied upon unless there  are  strong  grounds

for rejection of his evidence on  the  basis  of  major  contradictions  and

discrepancies, for  the  reason  that  his  presence  on  the  scene  stands

established in case it is proved that he  suffered  the  injury  during  the

said incident.

29. In State of U.P. v. Kishan Chand(2004) 7 SCC  629  a  similar  view  has

been reiterated observing that the testimony of a stamped  witness  has  its

own relevance and efficacy. The fact that the witness sustained injuries  at

the time and place of occurrence, lends support to  his  testimony  that  he

was present during the occurrence. In case the injured witness is  subjected

to lengthy cross-examination and nothing can  be  elicited  to  discard  his

testimony, it should be relied upon (vide Krishan v. State of  Haryana(2006)

12 SCC 459). Thus, we  are  of  the  considered  opinion  that  evidence  of

Darshan Singh (PW 4) has rightly been relied upon by the courts below.’

30. The law on the point can be summarised to the effect that the  testimony

of the injured witness is accorded a special status in law.  This  is  as  a

consequence of the fact that  the  injury  to  the  witness  is  an  inbuilt

guarantee of his presence at the scene of the crime and because the  witness

will not want to let his actual assailant go unpunished  merely  to  falsely

implicate a third party  for  the  commission  of  the  offence.  Thus,  the

deposition of the injured witness should be relied  upon  unless  there  are

strong grounds  for  rejection  of  his  evidence  on  the  basis  of  major

contradictions and discrepancies therein.”
59.   After the accused were  arrested,  they  made  disclosure  statements.

Pursuant to the said disclosure statements, recoveries of  various  articles

were effected which included clothes of the accused and  articles  belonging

to  PW-1  and  the  prosecutrix.   The  Samsung  Galaxy  Duos  mobile  phone

recovered from A-2 was  identified  by  the  complainant  in  the  court  as

belonging to him and testimony of the complainant was further  fortified  by

the testimony of PW-56 Sandeep  Dabral,  Manager,  Spice  Mobile  Shop,  who

stated that the said Samsung Mobile bearing the respective IMEI  number  was

sold in the name of the complainant. Also, the metro card  and  silver  ring

recovered at the behest of A-3 Akshay were identified by PW-1  in  court  as

belonging to him. The silver ring was also identified by the complainant  in

the TIP proceedings conducted  on  28.12.2012.  Likewise,  the  Hush-Puppies

shoes recovered at the behest of A-4 Vinay and wrist watch  of  Sonata  make

recovered at the behest  of  A-5  Pawan  were  identified  by  PW-1  in  TIP

proceedings as belonging to him. Recoveries of articles of  PW-1  and  other

scientific evidence, irrebutably establish  the  presence  of  PW-1  at  the

crime scene and strengthens the credibility of  PW-1’s testimony.

60.   Apart from the recoveries made at the behest of the accused,  presence

of PW-1 is also confirmed by DNA profile generated  from  the  blood-stained

mulberry leaves and grass collected from Mahipalpur (seized  vide  Memo  Ex.

PW-74/C) where both the victims were thrown after the incident.  As per  the

Chemical Analysis Report,  DNA  profile  generated  from  the  blood-stained

murberry leaves collected from the Mahipalpur flyover were found  to  be  of

male origin and consistent with the DNA profile of   PW-1. This proves  that

PW-1 was present with the victim at the time of the  incident  and  both  of

them were together thrown out of the bus at Mahipalpur.

61.   Further, as discussed infra, pursuant to the disclosure  statement  of

the accused, clothes of accused, some of which were blood-stained and  other

incriminating articles were recovered. PW-45 Dr. B.K. Mohapatra matched  the

DNA profiles of the blood detected on the clothes of the accused  with  that

of the complainant and the victim.  One set of DNA  profile  generated  from

jeans-pant of the accused Akshay (A-3) matched  the  DNA  profile  of  PW-1.

Likewise, one set of  DNA  profile  generated  from  the  sports  jacket  of

accused Vinay (A-4) was found consistent  with  the  DNA  profile  of  PW-1.

Also, one set of DNA  profile  generated  from  black  coloured  sweater  of

Accused Pawan Gupta (A-5) was found consistent with the DNA profile  of  PW-

1.  Result of DNA analysis further corroborates  the  version  of  PW-1  and

strengthens the prosecution case.  DNA Analysis Report, as provided  by  PW-

45 is a vital piece of evidence connecting the accused with the crime.

62.   Matching of DNA profile generated from the  bunch  of  hair  recovered

from the floor of the bus near the second row seat on the  left  side,  with

DNA  profile  of  the  complainant  is  yet  another   piece   of   evidence

corroborating the version of PW-1[vide Ex.PW-45/B].   Further,  DNA  profile

developed from burnt cloth pieces, recovered from near the rear  side  entry

of the bus was found consistent with DNA profile of  PW-1;  and  this  again

fortifies the presence of PW-1 with the victim in the bus.

63.   Contention of the appellants is that there  are  vital  contradictions

in the statements of PW-1.  It is contended  that  initially  PW-1  did  not

give the names of the accused in the FIR and that he kept on  improving  his

version, in particular, in the second supplementary  statement  recorded  on

17.12.2012 in which he gave the details of  the  bus  involved.  To  contend

that testimony of PW-1 is not  trustworthy,  reliance  is  placed  on  Kathi

Bharat Vajsur And Anr. v State of Gujarat (2012) 5 SCC 724. In Kathi  Bharat

Vajsur’s case, this Court has observed that when there  are  inconsistencies

or contradictions  in  oral  evidence  and  the  same  is  found  to  be  in

contradiction  with  other  evidence  then  it  cannot  be  held  that   the

prosecution has proved the case beyond reasonable doubt.

64.   While appreciating the evidence of a witness, the approach must be  to

consider the entire evidence and analyze whether the  evidence  as  a  whole

gives a complete chain of facts depicting truth.  Once  that  impression  is

formed, it is necessary for the court to  scrutinize  evidence  particularly

keeping  in  view  the  prosecution  case.   Any  minor   discrepancies   or

improvements not touching the core of the prosecution case and not going  to

the root of the matter, does not affect the trustworthiness of the  witness.

 Insofar as the contention that PW-1 kept on improving his  version  in  his

statement recorded at various point of time, it  is  noted  that  there  are

indeed some improvements in his version but, the core of his version  as  to

the occurrence remains consistent.  More so, when PW-1 and the victim  faced

such a traumatic experience, immediately after the incident, they cannot  be

expected to give minute details of the incident.  It would have  taken  some

time for them to come out of the shock and recollect the incident  and  give

a detailed version of the incident. It is to be noted that  in  the  present

case,  the  statements  of  PW-1  recorded  on   various   dates   are   not

contradictory to each other.  The  subsequent  statements  though  are  more

detailed as compared to the former ones, in the circumstances of  the  case,

it cannot be said to be unnatural affecting the  trustworthiness  of  PW-1’s

testimony. There is hardly any justification for doubting  the  evidence  of

PW-1, especially when it is corroborated  by  recovery  of  PW-1’s  articles

from the accused and scientific evidence.

65.   The trial Court as well  as  the  High  Court  found  PW-1’s  evidence

credible and trustworthy and I find no reason to take a different view.  The

view of the High Court and the trial court is fortified by the decisions  of

this court in Pudhu Raja and Anr. v. State  Rep.  by  Inspector  of  Police,

(2012) 11 SCC 196, Jaswant Singh v. State of Haryana (2000) 4  SCC  484  and

Akhtar and Ors. v. State of Uttaranchal (2009) 13  SCC  722.   Further,  the

evidence of PW-1 is amply strengthened by scientific evidence  and  recovery

of the incriminating articles from the accused.  The alleged  omissions  and

improvements in the evidence of PW-1 pointed  out  by  the  defence  do  not

materially affect the evidence of PW-1.

66.   Recovery of the bus and its Involvement in the  incident:  Description

of the entire incident by PW-1 and the victim led the investigating team  to

the Hotel named “Hotel Delhi  Airport”,  where  PW-1  and  the  victim  were

dumped after the incident.  PW-67 P.K. Jha, owner  of  Hotel  Delhi  Airport

handed over the pen drive containing CCTV footage       (Ex.P-67/1)  and  CD

(Ex.P-67/2) to the Investigating Officer which were seized.  From  the  CCTV

footage,  the  offending  bus  bearing   registration   No.DL-1PC-0149   was

identified by PW-1.  The bus was seized from Ravi Dass Camp  and  Ram  Singh

(A-1) was also arrested.

67.   PW-81 Dinesh Yadav is the owner of the bus bearing Registration No.DL-

1PC-0149 (Ex.P-1).  PW-81  runs  buses  under  the  name  and  style  “Yadav

Travels”.  On interrogation, PW-81 Dinesh Yadav stated that  A-1  Ram  Singh

was the driver of the bus No.DL-1PC-0149 in December, 2012  and  A-3  Akshay

Kumar Singh was his helper in the bus.  PW-81 also informed the police  that

the bus was attached to Birla Vidya Niketan School, Pushp Vihar,  New  Delhi

to ferry students to the school in the morning and that it was also  engaged

by a Company named M/s. Net Ambit in  Noida,  to  take  its  employees  from

Delhi to Noida.   PW-81 also informed the police that  after  daily  routine

trip, A-1 Ram Singh used to park the bus at  Ravi  Dass  Camp,  R.K.  Puram,

near his residence.  PW-81 further informed that on 17.12.2012, the  bus  as

usual went from Delhi to Noida to take the Staff of M/s Net Ambit  to  their

office. The recovery of the bus (Ex.P-1) and evidence  of  PW-81  led  to  a

breakthrough in the investigation that A-1 Ram Singh was the driver  of  the

bus and A-3 Akshay was the cleaner of the bus.

68.   Furthermore, in order to prove  that  A1  Ram  Singh  (Dead)  was  the

driver of the bus No.DL-1PC-0149 (Ex.P-1), PW-16  Rajeev  Jakhmola,  Manager

(Administration) of Birla Vidya Niketan School, Pushp Vihar, New  Delhi  was

examined.  In his evidence,  PW-16  stated  that  PW-81,  Dinesh  Yadav  had

provided the school with seven buses on contract  basis  including  the  bus

No.DL-1PC-0149 (Ex.P-1) and that A-1 Ram  Singh  was  its  driver.   In  his

interrogation by the police, PW-16 had also handed over Ram Singh’s  driving

licence alongwith copy of agreement of the school with the owner of the  bus

and other documents.  By adducing the evidence of PW-81 Dinesh Yadav and PW-

16 Rajeev  Jakhmola,  the  prosecution  has  established  that  the  bus  in

question was routinely driven by A-1 Ram Singh (Dead) and A-3  Akshay  Kumar

was the helper in the bus.

69.   On 17.12.2012, a team of experts from  CFSL  comprising  PW-45     Dr.

B.K. Mohapatra, PW-46 A.D. Shah, PW-79 P.K. Gottam and others, went  to  the

Thyagraj Stadium  and  inspected  the  bus  Ex.P1.  On  inspection,  certain

articles were seized from the said bus vide seizure memo     Ex.PW-74/P.  It

is brought on record that the samples were diligently  collected  and  taken

to CFSL, CBI by SI Subhash (PW-74) vide RC No.  178/21/12  for  examination.

The DNA profile of material objects lifted from the bus  bearing  No.DL-1PC-

0149 were found consistent with that of  the  victim  and  the  complainant.

Matching of the DNA profile developed from the articles seized from the  bus

DL-1PC-0149 like hair recovered from the third row of the bus  on  the  left

side with the DNA profile of PW-1, strengthens the prosecution  case  as  to

the involvement of the offending bus  bearing  registration  No.DL-1PC-0149.

DNA profile developed from the blood-stained curtains of the bus and  blood-

stained seat covers of bus and the bunch of hair recovered  from  the  floor

of the bus below sixth row matched with the DNA profile of the victim.   The

evidence of DNA analysis is an unimpeachable evidence as to the  involvement

of  the  offending  bus  in  the  commission  of  offence  and  also  strong

unimpeachable evidence connecting the accused with the crime.

70.   The accused neither rebutted this evidence nor offered any  convincing

explanation except making feeble attempt  by  stating  that  everything  was

concocted. PW-46, A.D. Shah,  Senior  Scientific  Officer  (Finger  Prints),

CFSL, CBI examined the chance prints  lifted  from  the  bus.  Chance  print

marked as ‘Q.1’ lifted from the bus (Ex.P-1) was found  identical  with  the

left palm print of accused Vinay Sharma.  Further  chance  print  marked  as

‘Q.4’ was found identical with  right  thumb  impression  of  accused  Vinay

Sharma.  A finger print expert report (Ex.PW-46/D) states  that  the  chance

print lifted from the bus being identical with the finger print  of  accused

Vinay Sharma, establishes the presence of accused Vinay Sharma in  the  bus,

thereby strengthening prosecution case.

71.   Arrest and Recovery under Section  27  of  the  Indian  Evidence  Act:

Prosecution very much relies upon  disclosure  statements  of  the  accused,

pursuant to which articles of the victim and also of  PW-1  were  recovered.

Accused being in possession of the articles of the victim and that of  PW-1,

is a militating circumstance against the accused and it is for  the  accused

to explain as to how they came in possession of these articles.  Details  of

arrest of accused and articles recovered from the accused are as under:-

|ACCUSED RAM SINGH (A-1) (Dead)                                             |

|ARREST (WHEN+  |ARTICLES RECOVERED FROM ACCUSED            |               |

|WHERE+         |                                           |               |

|BY WHOM)       |                                           |               |

|               |Details of    |Details of articles        |Items          |

|               |articles      |recovered pursuant to      |identified as  |

|               |recovered from|disclosure statement       |that of PW-1   |

|               |the person of |                           |Awninder Pratap|

|               |the accused   |                           |Singh/Prosecutr|

|               |              |                           |ix             |

|(1)            |(2)           |(3)                        |(4)            |

|On 17.12.2012, |(1) One Unix  |(1) Bus (Ex.P-1)           |Debit Card,    |

|PW-80 Pratibha |Mobile Phone  |DL-1PC-0149                |marked as Ex.  |

|Sharma         |with MTNL Sim |(2) Keys of Bus,           |PW-74/3 belongs|

|alongwith PW-74|[Ex.PW-74/5]; |(Ex.P-74/2)                |to the         |

|Subhash Chand  |(2) Photocopy |(3)Driving License, Fitness|prosecutrix as |

|SI and PW-65   |of Election   |Certificate, Permit        |deposed by     |

|Ct. Kirpal     |Card and Pan  |Pollution Certificate and  |PW-75- Asha    |

|Singh arrested          |other documents of bus     |Devi, mother of|

|A-1 at 4:15 PM |(3) Rs. 207/- |bearing registration no.   |prosecutrix.   |

|(Arrest Memo:  |in cash       |DL-1PC-0149 (Ex.P-74/4)    |               |

|Ex.PW-74/D)    |[personal     |(4) Two blood-stained rods |               |

|from Ravi Das  |search Memo   |(Ex.P49/1 and Ex.49/2)     |               |

|Camp, R.K.     |Ex.PW-74/E]   |(5) Indian Bank Debit      |               |

|Puram, Delhi.  |              |Card(Ex.P74/3)             |               |

|               |              |(6) Blood-stained green and|               |

|               |              |black coloured T-Shirt     |               |

|               |              |(Ex.74/6) and blood-stained|               |

|               |              |brown coloured chappal     |               |

|               |              |(Ex.74/7).                 |               |

|               |              |(7) Some ashes and partly  |               |

|               |              |burnt clothes (seizure memo|               |

|               |              |Ex. PW-74/M.)              |               |
|ACCUSED MUKESH (A-2)                                                         |

|ARREST (WHEN+     |ARTICLES RECOVERED FROM ACCUSED           |               |

|WHERE+BY WHOM)    |                                          |               |

|                  |Details of        |Details of articles     |Items          |

|                  |articles recovered|recovered pursuant to   |identified as  |

|                  |from the person of|disclosure statement    |that of PW-1   |

|                  |the accused       |                        |Awninder Pratap|

|                  |                  |                        |Singh/Prosecutr|

|                  |                  |                        |ix             |

|(1)               |(2)               |(3)                     |(4)            |

|A-2 was traced at |(1) Rs. 226/- in  |Disclosure statement    |In the TIP     |

|Karoli District,  |cash              |recorded on 18.12.2012  |proceedings    |

|Rajasthan by PW-58|(2) Key           |by PW-60 HC Mahabir     |held on        |

|SI Arvind Kumar   |(3) one black and |(Ex.PW-60/I)            |20.12.2012,    |

|alongwith staff   |brown colour purse|Following items         |PW-1 identified|

|ASI Anand Prakash,|containing PAN    |recovered:              |the Samsung    |

|HC Randhawa, HC   |Card, Visiting    |1. one blood-stained    |Galaxy Duos    |

|Mukesh, HC Sachin |cards and voter   |green T-shirt           |(recovered from|

|and          Ct.  |card and          |2. one blood-stained    |accused Mukesh)|

|Umesh, pursuant to|(4)Nokia Mobile   |grey colour pants.      |as belonging to|

|                  |phone bearing IMEI|3. blood-stained bluish |him.           |

|A-1’s disclosure. |No.351863010659247|grey colour jacket.     |               |

|He was formally   |(5) Samsung Galaxy|                        |               |

|arrested on       |Duos Mobile with  |                        |               |

|18.12.2012 at 6.30|IMEI              |                        |               |

|p.m. by PW80 SI.  |No.354098053454886|                        |               |

|(Arrest Memo      |and               |                        |               |

|Ex.PW-58/B)       |No.354099053454884|                        |               |

|                  |(Ex. P/6)         |                        |               |
|ACCUSED AKSHAY (A-3)                                                       | | |

|ARREST (WHEN+    |ARTICLES RECOVERED FROM ACCUSED       |                   |

|WHERE+BY WHOM)   |                                      |                   |

|                 |Details of        |Details of articles|Items identified  | | |

|                 |articles recovered|recovered pursuant |as that of PW-1   | | |

|                 |from the person of|to disclosure      |Awninder Pratap   | | |

|                 |the accused       |statement          |Singh/Prosecutrix | | |

|(1)              |(2)               |(3)                |(4)                |

|On 21.12.2012 at |No personal       |(1) One black bag  |In the TIP        | | |

|9:15 p.m.,       |articles recovered|containing         |proceedings held  | | |

|pursuant to the  |from the accused  |blood-stained blue |on 26.12.2012,    | | |

|disclosure of    |at his residence, |jeans              |PW-1 identified   | | |

|A-1, PW-53 SI    |Karmalahang       |(2) Blue black     |the Silver ring   | | |

|Upender alongwith|                  |Nokia mobile phone |(recovered from   | | |

|team comprising  |                  |with IMEI          |accused Akshay) as| | |

|Insp. Ritu Raj,  |                  |No.359286040159081 |belonging to PW-1 | | |

|PW-61 SI Jeet    |                  |(3) Blood-stained  |Complainant.      | | |

|Singh and ASI    |                  |red coloured       |                  | | |

|Ashok Kumar      |                  |banian.            |                  | | |

|arrested him from|                  |(4) One silver ring|                  | | |

|his house at     |                  |(5) Two metro cards|                  | | |

|Karmalahang.     |                  |                   |                  | | |

|(Arrest Memo:    |                  |                   |                  | | |

|Ex.PW53/A)       |                  |                   |                  | | |
|ACCUSED VINAY (A-4)                                                        |

|ARREST (WHEN+     |ARTICLES RECOVERED FROM ACCUSED      |                  |

|WHERE+ BY WHOM)   |                                     |                  |

|                  |Details of       |Details of articles|Items identified  |

|                  |articles         |recovered pursuant |as that of PW-1   |

|                  |recovered from   |to disclosure      |Awninder Pratap   |

|                  |the person of the|statement          |Singh/Prosecutrix |

|                  |accused          |                   |                  |

|(1)               |(2)              |(3)                |(4)               |

|On 18.12.2012 at  |One black coloured|Blood-stained blue |PW-1 identified   |

|1:30 p.m., on     |Nokia mobile phone|coloured jeans     |hush puppy shoes  |

|disclosure of A-1,|bearing IMEI      |(Ex.P-68/1)        |(recovered from   |

|PW-80 SI Pratibha |no.354138058308214|Blood-stained black|accused Vinay) as |

|Sharma alongwith  |18 (Ex.PW-60/D)   |coloured jacket    |belonging to him. |

|PW-60 HC Mahabir  |                  |(Ex.P-68/2)        |Nokia mobile phone|

|and Manphool      |                  |Blood-stained full |bearing IMEI      |

|arrested him from |                  |sleeved black      |No.353183039047391|

|Ravi Das Camp,    |                  |coloured T-shirt   |was identified as |

|R.K. Puram, Delhi |                  |(Ex.P-68/3)        |the mobile phone  |

|in the presence of|                  |Blue coloured      |of the            |

|A-1. (Arrest Memo:|                  |chappals           |prosecutrix.      |

|Ex.PW-60/B).      |                  |(Ex.P-68/4)        |                  |

|Supplementary     |                  |Hush puppy shoes   |                  |

|disclosure        |                  |(Ex.P2 under       |                  |

|recorded on       |                  |Ex.PW-68/C)        |                  |

|19.12.2012 by     |                  |Black coloured     |                  |

|PW-68 SI Mandeep  |                  |Nokia mobile phone |                  |

|(Ex.PW-68/A)      |                  |with IMEI          |                  |

|                  |                  |No.353183039047391 |                  |

|                  |                  |(Ex.P-68/5) –      |                  |

|                  |                  |seizure Memo       |                  |

|                  |                  |Ex.PW-68/D         |                  |
|ACCUSED PAWAN GUPTA @ KALU (A-5)                                           | | |

|ARREST (WHEN+    |ARTICLES RECOVERED FROM ACCUSED       |                   |

|WHERE+ BY WHOM)  |                                      |                   |

|                 |Details of        |Details of articles|Items identified  | | |

|                 |articles recovered|recovered pursuant |as that of PW-1   | | |

|                 |from the person of|to disclosure      |Awnindra Pratap   | | |

|                 |the accused       |statement          |Singh/ Prosecutrix| | |

|(1)              |(2)               |(3)                |(4)                |

|On 18.12.2012, on|(1) One black     | (1)one            |In the TIP        | | |

|disclosure of    |purse containing  |blood-stained black|proceedings       | | |

|A-1,  PW-80 S.I. |some visiting     |coloured sweater   |conducted on      | | |

|Pratibha Sharma  |cards             |(Ex. P-68/6)       |25.12.2012, Sonata| | |

|alongwith        |(2) Rs.8,200 in   |(2)blood-stained   |wrist watch       | | |

|PW-60 HC Mahabir |cash              |coca cola (colour) |identified by PW-1| | |

|and Manphool went|(3)One silver     |pants. (Ex.68/7)   |(recovered from   | | |

|to Ravi Das Camp |coloured ring with|(3)Blood-stained   |accused Pawan) as | | |

|at 1:15 p.m. to  |green nug         |brown coloured     |belonging to him. | | |

|arrest him.      |(Personal Search  |underwear          |                  | | |

|(Arrest          |Memo: Ex.PW-60/C).|(Ex.P-68/8)        |                  | | |

|Memo:Ex.PW-60/A) |                  |(4)Brown coloured  |                  | | |

|                 |                  |sports. shoes      |                  | | |

|                 |                  |(Ex.P-68/9)        |                  | | |

|                 |                  |(5)One wristwatch  |                  | | |

|                 |                  |of Sonata make     |                  | | |

|                 |                  |(Ex.P-3)           |                  | | |

|                 |                  |(6)Two currency    |                  | | |

|                 |                  |notes of Rs.500/-  |                  | | |

|                 |                  |each (Ex.P-7)      |                  | | |
72.    As  noted  in  the  above  tabular  form,  various  articles  of  the

complainant and the victim were recovered from  the  accused  viz.,  Samsung

Galaxy  Phone  (recovered  at  the  behest  of  A-2  Mukesh);  silver   ring

(recovered at the behest of A-3 Akshay); Hush Puppies  shoes  (recovered  at

the behest of A-4 Vinay) and Sonata Wrist Watch (recovered at the behest  of

A-5 Pawan). Recovery of belongings of PW-1 and that of the  victim,  at  the

instance of the accused is a relevant fact duly proved by  the  prosecution.

Notably the articles recovered from  the  accused  thereto  have  been  duly

identified by the complainant in test identification  proceedings.  Recovery

of articles of complainant (PW-1) and that of the victim at  the  behest  of

accused is a strong incriminating circumstance implicating the accused.   As

rightly pointed out by the Courts below, the accused have  not  offered  any

cogent or plausible explanation as to how they came in possession  of  those

articles.

73.   Similarly, the Indian bank debit card (Ex.PW-74/3)  recovered  at  the

behest of A-1 Ram Singh and black  coloured  Nokia  mobile  phone    (Ex.PW-

68/5) recovered at the behest of A-4 Vinay have been proved to  be  used  by

the prosecutrix.  PW-75 Asha Devi mother of  the  victim  in  her  testimony

stated that the Debit card belonged to her PW-75  Asha  Devi  and  that  the

same was in the possession of her  daughter.   Nokia  mobile  phone  (Ex.PW-

68/5) is stated to be the mobile used by the victim.  Notably, the  articles

of the prosecutrix recovered from the accused were proved  by  the  evidence

of PW-75 Asha Devi (mother of the victim) and the same was not  controverted

by the defence.

74.   Section 25 of the Indian Evidence Act (for short ‘the  Evidence  Act’)

speaks of a confession made to a police officer, which shall not  be  proved

as against a person accused of an offence.  Section 26 of the  Evidence  Act

also speaks that no confession made by  the  person  whilst  he  is  in  the

custody of a police officer, unless it be made in the immediate presence  of

a Magistrate, shall be proved as against such person.  Sections  25  and  26

of  the  Evidence  Act  put  a  complete  bar  on  the  admissibility  of  a

confessional statement made to a police officer  or  a  confession  made  in

absentia of a Magistrate, while in custody.  Section 27 of the Evidence  Act

is by way of a proviso to Sections 25 and 26  of  the  Evidence  Act  and  a

statement even by way of confession made in police custody which  distinctly

relates to the  fact  discovered  is  admissible  in  evidence  against  the

accused.  Section 27 of the Evidence Act reads as under:-

“27. How much of information received from accused may be proved.-  Provided

that,  when  any  fact  is  deposed  to  as  discovered  in  consequence  of

information received from a person accused of any offence,  in  the  custody

of a police officer, so much of such information, whether it  amounts  to  a

confession or not, as relates distinctly to  the  fact  thereby  discovered,

may be proved.”
Section 27 is based on the view that if a fact  is  actually  discovered  in

consequence of information given, some guarantee is  afforded  thereby  that

the information is true and is a relevant fact and  accordingly  it  can  be

safely allowed to be given in evidence.

75.   Section 27 has prescribed two limitations for determining how much  of

the information received  from  the  accused  can  be  proved  against  him:

(i) The information must be such as the accused has caused discovery of  the

fact, i.e. the fact must be the consequence, and the information  the  cause

of its discovery; (ii) The information must ‘relate distinctly’ to the  fact

discovered.  Both the conditions must be satisfied. Various requirements  of

Section 27 of the Evidence Act are succinctly summed up in  Anter  Singh  v.

State of Rajasthan  (2004) 10 SCC 657:-

“16. The various requirements of the section can be summed up as follows:

(1)   The fact of which evidence is sought to be given must be  relevant  to

the issue. It must be borne in mind that the provision  has  nothing  to  do

with the question of relevancy. The relevancy of the  fact  discovered  must

be established according to  the  prescriptions  relating  to  relevancy  of

other evidence connecting it with the  crime  in  order  to  make  the  fact

discovered admissible.

(2)   The fact must have been discovered.

(3)   The discovery must  have  been  in  consequence  of  some  information

received from the accused and not by the accused’s own act.

(4)   The person giving the information must be accused of any offence.

(5)   He must be in the custody of a police officer.

(6)   The discovery of a fact in consequence of  information  received  from

an accused in custody must be deposed to.

(7)    Thereupon  only  that  portion  of  the  information  which   relates

distinctly or strictly to the fact discovered can be  proved.  The  rest  is

inadmissible.”
76.   Appending a note of caution to prevent the misuse of the provision  of

Section 27 of the Evidence Act, this Court in Geejaganda  Somaiah  v.  State

of Karnataka (2007) 9 SCC 315, observed that the courts need to be  vigilant

about application of Section 27 of the Evidence Act.  Relevant extract  from

the judgment is as under:-

“22. As the section is alleged to be frequently misused by the  police,  the

courts are required to be vigilant about its  application.  The  court  must

ensure the credibility of evidence  by  police  because  this  provision  is

vulnerable to abuse. It does not, however, mean that any statement  made  in

terms of the aforesaid section should be seen with suspicion and  it  cannot

be discarded only on the ground that it was made to a police officer  during

investigation. The court has to be cautious that no effort is  made  by  the

prosecution to make out a statement of the accused with  a  simple  case  of

recovery as a case of discovery of fact in order to attract  the  provisions

of Section 27 of the Evidence Act.”
77.   Even though, the arrest and recovery under Section 27 of the  Evidence

Act is often sought  to  be  misused,  the  courts  cannot  be  expected  to

completely ignore how crucial are the recoveries made under  Section  27  in

an investigation. The legislature while  incorporating  Section  27,  as  an

exception to Sections 24, 25 and 26 of the Evidence Act,  was  convinced  of

the quintessential purpose  Section  27  would  serve  in  an  investigation

process. The recovery made under Section 27 of the  Evidence  Act  not  only

acts as the foundation stone for proceeding with an investigation, but  also

completes the chain of circumstances. Once the recovery  is  proved  by  the

prosecution, burden of proof on the  defence  to  rebut  the  same  is  very

strict,  which  cannot  be  discharged  merely  by  pointing  at  procedural

irregularities in making the recoveries, especially  when  the  recovery  is

corroborated by direct as well as circumstantial evidence,  especially  when

the investigating officer assures  that  failure  in  examining  independent

witness while making the recoveries was  not  a  deliberate  or  mala  fide,

rather  it  was  on  account  of  exceptional  circumstances  attending  the

investigation process.

78.   While the prosecution has been able to prove the  recoveries  made  at

the behest of the accused, the defence counsel repeatedly argued  in  favour

of discarding the  recoveries  made,  on  the  ground  that  no  independent

witnesses were  examined  while  effecting  such  recoveries  and  preparing

seizure memos.

79.   The above contention of the defence counsel urges  one  to  look  into

the specifics of Section 27 of the Evidence Act.  As a matter of fact,  need

of examining independent witnesses, while making recoveries pursuant to  the

disclosure statement of the accused is a rule  of  caution  evolved  by  the

Judiciary, which aims at protecting the right of  the  accused  by  ensuring

transparency and credibility in the investigation of a  criminal  case.   In

the present case, PW-80  SI  Pratibha  Sharma  has  deposed  in  her  cross-

examination that no independent person had agreed to become  a  witness  and

in the light of such a statement, there is  no  reason  for  the  courts  to

doubt the version of the police and the recoveries made.

80.   When recovery is made pursuant to the statement  of  accused,  seizure

memo prepared by the Investigating Officer need not mandatorily be  attested

by independent witnesses.  In State Govt. of  NCT  of  Delhi  v.  Sunil  and

Another (2001) 1 SCC 652, it was held that non-attestation of  seizure  memo

by independent witnesses cannot  be  a  ground  to  disbelieve  recovery  of

articles’ list consequent  upon  the  statement  of  the  accused.   It  was

further held that there was no requirement, either under Section 27  of  the

Evidence  Act  or  under  Section  161  Cr.P.C.  to  obtain   signature   of

independent witnesses.  If the version of the police  is  not  shown  to  be

unreliable, there is no reason to doubt the version of the police  regarding

arrest and contents of the seizure memos.

81.   In the landmark case of Pulukuri Kottaya v. King-Emperor           AIR

1947 PC 67, the Privy Council has laid down  the  relevance  of  information

received from the accused for the purpose of  Section  27  of  the  Evidence

Act.  Relevant extracts from the judgment are as under:

“10. Section 27, which is not artistically worded, provides an exception  to

the prohibition imposed  by  the  preceding  section,  and  enables  certain

statements made by a person in police custody to be  proved.  The  condition

necessary to bring the section into operation is that  the  discovery  of  a

fact in consequence of information received from a  person  accused  of  any

offence in the  custody  of  a  Police  officer  must  be  deposed  to,  and

thereupon so much of the information  as  relates  distinctly  to  the  fact

thereby discovered may be proved. The section seems to be based on the  view

that if a fact is actually discovered in consequence of  information  given,

some guarantee is afforded  thereby  that  the  information  was  true,  and

accordingly can be safely allowed to be given in evidence; but  clearly  the

extent of the information admissible must depend on the exact nature of  the

fact discovered to which such information is required to relate.”
The test laid down in Pulukuri Kottaya’s  case  was  reiterated  in  several

subsequent judgments of this Court including State (NCT of Delhi) v.  Navjot

Sandhu alias Afsan Guru (2005) 11 SCC 600.

82.   In the light of above discussion, it  is  held  that  recoveries  made

pursuant to disclosure statement of the  accused  are  duly  proved  by  the

prosecution and  there  is  no  substantial  reason  to  discard  the  same.

Recovery of articles of PW-1 and also that of victim at the instance of  the

accused is a strong incriminating evidence against accused, especially  when

no plausible explanation is  forthcoming  from  the  accused.   Further,  as

discussed infra,  the  scientific  examination  of  the  articles  recovered

completely place them in line with the chain  of  events  described  by  the

prosecution.

83.   DNA Analysis:  In order to establish a clear link between the  accused

persons  and  the  incident  at  hand,  the  prosecution  has  also  adduced

scientific evidence in the form of DNA analysis.  For  the  purpose  of  DNA

profiling, various samples were taken from the person  of  the  prosecutrix;

the complainant; the accused, their clothes/articles; the dumping spot;  the

iron rods; the ashes of burnt clothes; as well as from  the  offending  bus.

PW-45 Dr. B.K. Mohapatra analysed the said DNA profiles  and  submitted  his

report thereof. In his report, he concluded that the samples were  authentic

and capable of establishing the identities of the persons  concerned  beyond

reasonable doubt.  Prosecution relies upon  the  biological  examination  of

various articles including the samples collected from the  accused  and  the

DNA profiles generated from the blood-stained clothes of  the  accused.  The

DNA profile generated from the samples collected,  when  compared  with  the

DNA profile generated  from  the  blood  samples  of  the  victim  and  PW-1

Awninder Pratab Pandey, were found consistent.

84.   For easy reference and  for  completion  of  narration  of  events,  I

choose to refer to the articles  recovered  from  the  accused  pursuant  to

their disclosure statements and other articles like  blood-stained  clothes;

samples of personal fluids like  blood,  saliva  with  control  swab;  other

samples like nail clippings, penil swab, stray hair  etc.   Details  of  the

DNA analysis is contained in the reports of biological examination  and  DNA

profiling  (Ex.PW-45/A  to  Ex.PW-45/C),  furnished  by   PW-45   Dr.   B.K.

Mohapatra.

|ACCUSED RAM SINGH (A-1) (Dead)                                             | | |

|ARTICLES RECOVERED |          |Findings of DNA        |DNA profile generated|

|FROM ACCUSED       |          |generated from clothes |from other articles, |

|                   |          |                       |swab etc.            |

|Recovery pursuant  |Samples   |Items   |Items matching|Findings (Ex.Pw45/B)| | |

|to disclosure      |collected |matching|DNA profile of|                    | | |

|statement          |from the  |DNA     |Victim.       |                    | | |

|                   |person of |profile |              |                    | | |

|                   |the       |of PW1  |              |                    | | |

|                   |accused   |        |              |                    | | |

|(1)                |(2)       |(3)     |(4)           |(5)                  |

|(1) Bus (Ex.P-1)   |(1)Penile |-NA-    |(1) DNA       |(1) DNA profile     | | |

|DL-1PC-0149        |swab      |        |profile       |generated from Blood| | |

|(2) Keys of Bus,   |          |        |generated from|detected in gauze of| | |

|(Ex.P-74/2)        |(2) Saliva|        |Partially torn|accused matched the | | |

|(3)Driving License,|          |        |green and     |DNA profile         | | |

|Fitness            |(3)Nail   |        |black colored |generated from      | | |

|Certificate, Permit|clippings |        |striped half  |rectal swab of the  | | |

|Pollution          |          |        |sleeve t-shirt|victim.             | | |

|Certificate and    |(4)Control|        |found to be   |                    | | |

|other documents of |swab      |        |female in     |(2) Blood as well as| | |

|bus bearing        |          |        |origin and    |human spermatozoa   | | |

|registration no.   |(5)Blood  |        |consistent    |was detected in the | | |

|DL-1PC-0149        |in gauze  |        |with the DNA  |underwear of the    | | |

|(Ex.P-74/4)        |          |        |profile of    |accused and the DNA | | |

|(4) Two            |(6)       |        |victim (1q)   |profile generated   | | |

|blood-stained rods |Underwear |        |[8.7.3 @ Ex.  |there-from was found| | |

|(Ex.P49/1 and      |          |        |PW 45/B].     |to be female in     | | |

|Ex.49/2)           |          |        |              |origin, consistent  | | |

|(5) Indian Bank    |          |        |(2) DNA       |with that of the    | | |

|Debit              |          |        |profile       |victim.             | | |

|Card(Ex.P74/3)     |          |        |generated from|                    | | |

|(6) Blood-stained  |          |        |brown colored |(3) The DNA profile | | |

|green and black    |          |        |plastic       |developed from blood| | |

|coloured T-Shirt   |          |        |chappal found |stains from both the| | |

|(Ex.74/6) and      |          |        |to be female  |iron rods, recovered| | |

|blood-stained brown|          |        |in origin and |at the instance of  | | |

|coloured chappal   |          |        |consistent    |accused Ram Singh   | | |

|(Ex.74/7).         |          |        |with the DNA  |from bus, is of     | | |

|(7) Some ashes and |          |        |profile of    |female origin and   | | |

|partly burnt       |          |        |victim (1q)   |consistent with the | | |

|clothes (seizure   |          |        |[8.7.3 @ Ex.  |DNA profile of      | | |

|memo Ex. PW-74/M.) |          |        |PW 45/B]      |prosecutrix.        | | |

|                   |          |        |              |                    | | |

|                   |          |        |              |(4) The DNA profile | | |

|                   |          |        |              |developed from burnt| | |

|                   |          |        |              |clothes pieces was  | | |

|                   |          |        |              |found to be of male | | |

|                   |          |        |              |origin and          | | |

|                   |          |        |              |consistent with the | | |

|                   |          |        |              |DNA profile of the  | | |

|                   |          |        |              |complainant.        | | |
|ACCUSED MUKESH (A-2)                                                        |

|ARTICLES        |             |Findings of DNA      |DNA profile generated  |

|RECOVERED FROM  |             |generated from       |from other articles,   |

|ACCUSED         |             |clothes              |swab etc.              |

|Recovery        |Samples      |Items    |Items      |FINDINGS (Ex.PW45/B)   |

|pursuant to     |collected    |matching |matching   |                       |

|disclosure      |from the     |DNA      |DNA profile|                       |

|statement       |person of the|profile  |of Victim  |                       |

|                |accused      |of PW1   |           |                       |

|(1)             |(2)          |(3)      |(4)        |(5)                    |

|Disclosure      | (1) Blood in|-NA-     |The DNA    |(1) Blood was detected |

|statement       |gauze        |         |profile    |in gauze and nail      |

|recorded on     |(2)Nail      |         |generated  |clippings but it did   |

|18.12.2012 by   |clippings    |         |from       |not yield female       |

|PW-60 HC Mahabir|(3) Urethral |         |blood-stain|fraction DNA for       |

|(Ex.PW-60/I)    |swab         |         |ed pants,  |analysis.              |

|Following items |(4)Glans swab|         |t-shirts   |(2)Human Spermatazoa   |

|recovered:      |(5)Cut of    |         |and jackets|was detected in        |

|1. one          |pubic hair   |         |recovered  |urethral swab, glans   |

|blood-stained   |(6) Saliva   |         |at the     |swab and underwear but |

|green T-shirt   |(7) Stray    |         |behest  of |the same did not yield |

|2. one          |hair         |         |accused    |female fraction DNA for|

|blood-stained   |(8)          |         |matched the|analysis.              |

|grey colour     |Underwear.   |         |DNA profile|                       |

|pants.          |             |         |of the     |                       |

|3. blood-stained|             |         |victim.    |                       |

|bluish grey     |             |         |           |                       |

|colour jacket.  |             |         |           |                       |

|ACCUSED AKSHAY (A-3)                                                       | | |

|(1)            |(2)          |(3)      |(4)        |(5)                    | | |

|(1) One black  |(1) Blood in |One set  |The DNA    |DNA profile generated | | |

|bag containing |gauze        |of the   |profile    |from breast swab of   | | |

|blood-stained  |(2) Saliva   |DNA      |generated  |the victim was found  | | |

|blue jeans     |(3) Control  |profile  |from       |consistent with the   | | |

|(2) Blue black |gauze        |generated|blood-stain|DNA profile of the    | | |

|Nokia mobile   |(4) Penile   |from     |ed red     |blood of the accused  | | |

|phone bearing  |Swab         |jeans    |coloured   |Akshay.               | | |

|IMEI           |(5)Nail      |pant of  |banian     |                      | | |

|No.35928604015 |clippings    |the      |recovered  |                      | | |

|(3)            |(6) Underwear|accused  |at the     |                      | | |

|Blood-stained  |(7) Scalp    |matched  |behest of  |                      | | |

|red coloured   |hair and     |the DNA  |accused    |                      | | |

|banian.        |Pubic hair   |profile  |matched the|                      | | |

|(4) One silver |(8) Red      |of PW1.  |DNA profile|                      | | |

|ring           |colour banian|         |of the     |                      | | |

|(5) Two metro  |             |         |victim.    |                      | | |

|cards          |             |         |           |                      | | |

|               |             |         |           |                      | | |

|               |             |         |           |                      | | |
|ACCUSED VINAY (A-4)                                                        | | |

|ARTICLES RECOVERED    |             |Findings of DNA      |DNA generated    |

|FROM ACCUSED          |             |generated from       |from other       |

|                      |             |clothes              |articles, swab   |

|                      |             |                     |etc.             |

|Recovery pursuant to  |Samples      |Items    |Items      |FINDINGS        | | |

|disclosure statement  |collected    |matching |matching   |(Ex.PW45/B)     | | |

|                      |from the     |DNA      |DNA profile|                | | |

|                      |person of the|profile  |of Victim. |                | | |

|                      |accused      |of PW1   |           |                | | |

|(1)                   |(2)          |(3)      |(4)        |(5)              |

|1.Blood-stained blue  | (1) Blood in|One set  |The DNA    |(1) Blood was   | | |

|coloured jeans        |gauze        |of the   |profile    |detected only in| | |

|(Ex.P-68/1)           |(2)Nail      |DNA      |generated  |gauze, nail     | | |

|2.Blood-stained black |clippings    |profile  |from       |clipping and    | | |

|coloured jacket       |(3) Urethral |generated|blood-stain|pubic hair of   | | |

|(Ex.P-68/2)           |swab         |from     |ed         |the accused but | | |

|3.blood-stained full  |(4)Glans swab|sports   |underwear, |the same did not| | |

|sleeved black coloured|(5)Cut of    |jacket of|chappal and|yield female    | | |

|T-shirt (Ex.P-68/3)   |pubic hair   |the      |jacket     |fraction DNA for| | |

|4.blue coloured       |(6) Saliva   |accused  |recovered  |analysis.       | | |

|chappals              |(7) Stray    |matched  |at the     |                | | |

|(Ex.P-68/4)           |hair         |the DNA  |behest of  |                | | |

|5. Hush Puppy         |(8) Underwear|profile  |accused    |                | | |

|shoes(Ex.P2 under Ex. |             |of PW1.  |matched the|                | | |

|PW-68/C)              |(9)Mons Pubis|         |DNA profile|                | | |

|6. Black coloured     |             |         |of the     |                | | |

|Nokia mobile phone    |             |         |victim.    |                | | |

|with IMEI             |             |         |           |                | | |

|No.353183039047391    |             |         |           |                | | |

|(Ex.P-68/5)           |             |         |           |                | | |
|ACCUSED PAWAN GUPTA @ KALU (A-5)                                           | | |

|(1)                   |(2)          |(3)      |(4)         |(5)             |

|Disclosure statement  | (1) Blood in|One set  |(1) Another |(1) Blood was   | | |

|recorded by PW-60 HC  |gauze        |of the   |set of DNA  |detected only in| | |

|Mahabir.              |(2)Nail      |DNA      |profile     |gauze and nail  | | |

|Following items       |clippings    |profile  |generated   |clipping of the | | |

|recovered on          |(3)Urethral  |generated|from sweater|accused but the | | |

|19.12.2012:           |swab         |from     |recovered at|same did not    | | |

|(1)one blood-stained  |(4)Glans swab|black    |the behest  |yield female    | | |

|black coloured sweater|(5) Cut of   |coloured |of the      |fraction DNA for| | |

|                      |pubic hair   |sweater  |accused     |analysis.       | | |

|(Ex. P-68/6)          |(6) Saliva   |of the   |matched the |                | | |

|(2)blood-stained coca |(7) Stray    |accused  |DNA profile |                | | |

|cola (colour) pants.  |hair         |matched  |of the      |                | | |

|(Ex.68/7)             |             |the DNA  |victim.     |                | | |

|(3)Blood-stained brown|             |profile  |            |                | | |

|coloured underwear    |             |of PW-1. |(2) DNA     |                | | |

|(Ex.P-68/8)           |             |         |profile     |                | | |

|(4)Brown coloured     |             |         |generated   |                | | |

|sports shoes          |             |         |from sports |                | | |

|(Ex.P-68/9)           |             |         |shoes of the|                | | |

|(5)One wristwatch of  |             |         |accused     |                | | |

|Sonata make           |             |         |matched with|                | | |

|(Ex.P-3)              |             |         |the DNA     |                | | |

|(6)Two currency notes |             |         |profile of  |                | | |

|of Rs.500/- each      |             |         |the         |                | | |

|(Ex.P-7)              |             |         |prosecutrix |                | | |

|Site plan of the spot |             |         |            |                | | |

|from where the said   |             |         |            |                | | |

|articles are recovered|             |         |            |                | | |

|and seized            |             |         |            |                | | |

|(Ex. PW-68).          |             |         |            |                | | |
85.   Before considering the above findings of  DNA  analysis  contained  in

tabular form, let me first refer  to  what  is  DNA,  the  infallibility  of

identification by DNA profiling and its accuracy with certainty.  DNA –  De-

oxy-ribonucleic acid, which is found in the  chromosomes  of  the  cells  of

living beings, is the blueprint of an individual. DNA is  the  genetic  blue

print for life and is virtually contained in every cell.   No  two  persons,

except identical twins have ever had identical  DNA.  DNA  profiling  is  an

extremely  accurate  way  to  compare  a  suspect’s  DNA  with  crime  scene

specimens, victim’s DNA on the  blood-stained  clothes  of  the  accused  or

other  articles  recovered,  DNA  testing  can  make  a  virtually  positive

identification when the two samples match.  A DNA finger print is  identical

for every part of the body, whether it is the blood, saliva,  brain,  kidney

or foot on any part of the body. It cannot be changed; it will be  identical

no matter what is done to a  body.  Even  relatively  minute  quantities  of

blood, saliva or semen at a crime scene or on clothes can  yield  sufficient

material for analysis. The Experts opine that the identification  is  almost

hundred per cent precise. Using this  i.e.  chemical  structure  of  genetic

information by generating DNA profile of the individual,  identification  of

an individual is done like in the traditional method of  identifying  finger

prints of offenders.  Finger prints are only on the  fingers  and  at  times

may be altered. Burning or cutting a finger  can  change  the  make  of  the

finger print.  But DNA  cannot  be  changed  for  an  individual  no  matter

whatever happens to a body.

86.   We may usefully refer to Advanced Law  Lexicon,  3rd  Edition  Reprint

2009 by P. Ramanatha Aiyar which explains DNA as under:-

 “DNA.- De-oxy-ribonucleic acid, the nucleoprotein of chromosomes.

The  double-helix  structure  in  cell  nuclei  that  carries  the   genetic

information of most living organisms.

The material in a cell that makes  up  the  genes  and  controls  the  cell.

(Biological Term)
DNA finger printing. A method of identification especially  for  evidentiary

purposes by analyzing and comparing the DNA from  tissue  samples.  (Merriam

Webster)”
In the same Law Lexicon, learned author  refers  to  DNA  identification  as

under:

DNA identification. A method of comparing a person’s  deoxyribonucleic  acid

(DNA) – a patterned chemical structure of genetic  information  –  with  the

DNA in a biological specimen (such as blood, tissue, or hair)  to  determine

if the person is the source of  the  specimen.  –  Also  termed  DNA  finger

printing; genetic finger printing (Black, 7th Edition, 1999)
87.   DNA evidence is now a predominant forensic technique  for  identifying

criminals when biological tissues are left at the  scene  of  crime  or  for

identifying the source of blood  found  on  any  articles  or  clothes  etc.

recovered from the accused or from witnesses.  DNA testing on  samples  such

as saliva, skin, blood, hair or semen not only helps to convict the  accused

but also serves to exonerate.  The sophisticated technology  of  DNA  finger

printing makes it possible to obtain  conclusive  results.      Section  53A

Cr.P.C. is added by the Code of Criminal Procedure  (Amendment)  Act,  2005.

It provides for a detailed medical examination of accused for an offence  of

rape or attempt to commit  rape  by  the  registered  medical  practitioners

employed in a hospital run by the Government or by a local authority  or  in

the absence of such a practitioner within the radius of  16  kms.  from  the

place where the offence has been committed by any other  registered  medical

practitioner.

88.   Observing that DNA is scientifically accurate and  exact  science  and

that the trial court was not justified in rejecting DNA report,  in  Santosh

Kumar Singh v. State through CBI (2010) 9 SCC 747, the Court held as under:-

“65. We now come to the circumstance with regard to the  comparison  of  the

semen stains with the blood taken from the appellant. The  trial  court  had

found against the prosecution on this aspect. In this  connection,  we  must

emphasise that the court cannot substitute its own opinion for  that  of  an

expert, more particularly in a science such as  DNA  profiling  which  is  a

recent development.

66. Dr. Lalji Singh in his examination-in-chief deposed  that  he  had  been

involved with the DNA technology  ever  since  the  year  1974  and  he  had

returned to India from the UK in 1987 and joined  CCMB,  Hyderabad  and  had

developed indigenous methods and techniques for DNA  finger  printing  which

were now being used in this country. We also  see  that  the  expertise  and

experience of Dr. Lalji Singh in his  field  has  been  recognised  by  this

Court in Kamalanantha v. State of T.N. (2005) 5 SCC 194  We  further  notice

that CW 1 Dr. G.V. Rao was a scientist of equal repute and he  had  in  fact

conducted the tests under the supervision of Dr. Lalji  Singh.  It  was  not

even disputed before us during  the  course  of  arguments  that  these  two

scientists were persons of eminence and that the laboratory in question  was

also held in the highest esteem in India.

67. The statements of Dr. Lalji Singh and  Dr.  G.V.  Rao  reveal  that  the

samples had been tested as per the procedure developed  by  the  laboratory,

that the samples were sufficient for the purposes  of  comparison  and  that

there was  no  possibility  of  the  samples  having  been  contaminated  or

tampered  with.  The  two  scientists  gave  very  comprehensive  statements

supported by documents that DNA of the semen stains on the swabs and  slides

and the underwear of the deceased and the blood  samples  of  the  appellant

was from a single source and that source was the appellant.

68. It is significant that not a single question was put  to  PW  Dr.  Lalji

Singh as to the accuracy of the methodology or the  procedure  followed  for

the DNA profiling. The trial  court  has  referred  to  a  large  number  of

textbooks and has given adverse  findings  on  the  accuracy  of  the  tests

carried out in the present case. We are unable to accept  these  conclusions

as the court has substituted its own opinion ignoring the complexity of  the

issue on a highly technical subject,  more  particularly  as  the  questions

raised by the court had not been put to the  expert  witnesses.  In  Bhagwan

Das v. State of Rajasthan AIR 1957 SC 589 it has been held that it would  be

a dangerous doctrine to lay down that the report of an expert witness  could

be brushed aside by making reference to some text on  that  subject  without

such text being put to the expert.

71. We feel that the trial court was not  justified  in  rejecting  the  DNA

report, as nothing adverse could be pointed out against the two experts  who

had submitted it. We  must,  therefore,  accept  the  DNA  report  as  being

scientifically accurate and an exact science as held by this Court in  Kamti

Devi v. Poshi Ram (2001) 5 SCC 311.  In  arriving  at  its  conclusions  the

trial court was also influenced by the fact that the semen swabs and  slides

and the blood samples of the appellant had not been kept in  proper  custody

and had been tampered with, as  already  indicated  above.  We  are  of  the

opinion that the trial court was in error on this  score.  We,  accordingly,

endorse the conclusions of the High  Court  on  Circumstance  9.”  [emphasis

added].

89.   From the evidence of PW-45 and the details given in the above  tabular

form, it is seen that the DNA profile generated from  blood-stained  clothes

of the accused namely, A-1 Ram Singh (dead); A-2  Mukesh;  A-3  Akshay;  A-4

Vinay; and A-5 Pawan Gupta @ Kalu are found consistent with the DNA  profile

of the prosecutrix.  Also as noted above,  two  sets  of  DNA  profile  were

generated from the black colour sweater of the accused Pawan.   One  set  of

DNA profile found to be female in origin, consistent with  the  DNA  profile

of the prosecutrix; other set found to be male in  origin,  consistent  with

the DNA profile of PW-1.  Likewise, two sets of DNA profile  were  generated

from the black colour sports jacket of accused Vinay, one of  which  matched

the DNA profile of the prosecutrix and another one matched the  DNA  profile

of PW-1.  Likewise, two sets of DNA profile were generated  from  the  jeans

pant of accused Akshay,  one  of  which  matched  the  DNA  profile  of  the

prosecutrix and another one matched the DNA profile of PW-1.  The result  of

DNA analysis and that  of  the  DNA  profile  generated  from  blood-stained

clothes of the accused found consistent with that of the victim is a  strong

piece of evidence incriminating the accused in the offence.

90.   DNA profile generated from the blood  samples  of  accused  Ram  Singh

matched with the DNA profile generated from the rectal swab of  the  victim.

Blood as well as human spermatozoa was detected  in  the  underwear  of  the

accused Ram Singh (dead) and DNA profile generated therefrom  was  found  to

be female in origin, consistent with that of the victim.  Likewise, the  DNA

profile generated from the breast swab of the victim  was  found  consistent

with the DNA profile of the accused Akshay.

91.   As discussed earlier, identification by DNA genetic  finger  print  is

almost hundred per cent precise and  accurate.  The  DNA  profile  generated

from the blood-stained clothes of the accused and other articles  are  found

consistent with the DNA profile of the victim and DNA profile of PW-1;  this

is a strong piece of evidence against the accused.  In his  evidence,  PW-45

  Dr. B.K. Mohapatra has stated that  once  DNA  profile  is  generated  and

found consistent with another DNA profile, the accuracy is hundred per  cent

and we find no reason to doubt his evidence.  As pointed out by  the  Courts

below, the counsel for the defence did not raise any substantive  ground  to

rebut the findings of DNA analysis and the findings through the  examination

of PW-45.  The DNA report and the  findings  thereon,  being  scientifically

accurate clearly establish the link involving the  accused  persons  in  the

incident.

92.   Conspiracy:  The  accused  have  been  charged  with  the  offence  of

“conspiracy” to commit the offence of abduction, robbery/dacoity, gang  rape

and unnatural sex, in pursuance of which the accused  are  alleged  to  have

picked up the prosecutrix and PW-1.  The charge sheet also  states  that  in

furtherance of conspiracy, the accused while committing the offence of  gang

rape on the prosecutrix intentionally inflicted bodily injury with iron  rod

and inserted the iron rod in the vital parts of her  body  with  the  common

intention to cause her death.

93.   The learned amicus  Mr.  Sanjay  Hegde  submitted  that  there  is  no

specific evidence to prove that there was prior  meeting  of  minds  of  the

accused and that they had conspired together to commit grave offence by  use

of  iron  rod,  resulting  in  the  death  of  the  victim  and,  therefore,

insertion/use of iron rod by any one of the accused cannot be attributed  to

all the accused in order to hold them guilty of the offence of murder.

94.   The essentials of the offence of conspiracy and the  manner  in  which

it can be proved has been laid down  by  this  Court  through  a  catena  of

judicial pronouncements and I choose to briefly recapitulate the law on  the

point, so as to determine whether the offence is made out in  this  case  or

not. Meeting of minds for committing an illegal act is sine qua non  of  the

offence of conspiracy. It is also obvious that  meeting  of  minds,  thereby

resulting in formation of a consensus between the parties, can be  a  sudden

act, spanning in a fraction of a minute.  It is neither necessary that  each

of the conspirators take active part in the commission  of  each  and  every

conspiratorial act, nor it is necessary that all the conspirators must  know

each and every details  of  the  conspiracy.   Essence  of  the  offence  of

conspiracy is in agreement to break the law as aptly observed by this  Court

in Major E.G. Barsay v. State of Bombay (1962) 2 SCR 195.

95.   So far as the English law on conspiracy is  concerned,  which  is  the

source of Indian law, KENNY has  succinctly  stated  that  in  modern  times

conspiracy is defined as an agreement of two or more persons to  effect  any

unlawful purpose, whether as their ultimate aim or only as a  means  to  it.

Stressing on the need of formation of an agreement, he  has  cautioned  that

conspiracy should not be misunderstood as a purely mental crime,  comprising

the concurrence of  the  intentions  of  the  parties.  The  meaning  of  an

‘agreement’,  he  has  explained  by  quoting  following   words   of   Lord

Chelmsford:

“Agreement is an act in advancement of the intention which each  person  has

conceived in his mind.”
KENNY has further said that it is not mere intention, but  the  announcement

and acceptance of intentions. However, it is not  necessary  that  an  overt

act is done; the offence is complete as soon as the parties have  agreed  as

to their unlawful purpose, although nothing has yet been settled as  to  the

means and devices to be employed for effecting it. [Refer KENNY on  Outlines

of Criminal Law, 19th Edn., pp. 426-427]
96.   The most important aspect of the offence of conspiracy is  that  apart

from being a distinct statutory offence, all the parties to  the  conspiracy

are liable for the acts of each other and as an  exception  to  the  general

law in the case of conspiracy intent  i.e.  mens  rea  alone  constitutes  a

crime.  As per Section 10 of the Evidence Act,  once  reasonable  ground  is

shown for believing that two or more persons have  conspired  to  commit  an

offence then, anything done by any one of them in reference to their  common

intention,  is  admissible  against  the  others.   As  held  in  State   of

Maharashtra v. Damu and Others (2000) 6 SCC 269, the only condition for  the

application of the rule in Section 10 of the  Evidence  Act  is  that  there

must be  reasonable  ground  to  believe  that  two  or  more  persons  have

conspired together to commit an offence.

97.   The principles relating to the offence of criminal conspiracy and  the

standard of proof for establishing  offence  of  conspiracy  and  the  joint

liability  of  the  conspirators  have  been  elaborately   laid   down   in

Shivnarayan Laxminarayan Joshi and Ors. v. State of  Maharashtra   (1980)  2

    SCC 465; Mohammad Usman Mohammad Hussain Maniyar and Ors.  v.  State  of

Maharashtra (1981)  2  SCC  443;  Kehar  Singh  and  Ors.  v.  State  (Delhi

Administration) (1988) 3 SCC 609; State of Maharashtra and Ors. v. Som  Nath

Thapa and Ors. (1996) 4 SCC 659; State (NCT of Delhi)  v.  Navjot  Sandhu  @

Afsan Guru (2005) 11  SCC  600;  State  Through  Superintendent  of  Police,

CBI/SIT v. Nalini and Ors. (1999) 5 SCC 253 Yakub Abdul  Razak  Menon v. The

State of Maharashtra, through CBI, Bombay (2013) 13 SCC 1.

98.   Another significant aspect of the offence of  criminal  conspiracy  is

that it is very rare to find direct proof of it, because of  the  very  fact

that it is hatched in secrecy. Unlike other  offences,  criminal  conspiracy

in most of the cases is  proved  by  circumstantial  evidence  only.  It  is

extremely  rare  that  direct  evidence  in  proof  of  conspiracy  can   be

forthcoming from wholly disinterested, quarters  or  from  utter  strangers.

Conspiracy is a matter of inference, deduced from  words  uttered,  criminal

acts of the accused done in furtherance of conspiracy. (Vide  Noor  Mohammad

Mohd. Yusuf Momin v. State of  Maharashtra  (1970)  1  SCC  696;  Firozuddin

Basheeruddin and Ors. v. State of Kerala (2001) 7 SCC 596; Ram Narain  Poply

v. Central Bureau of Investigation and Ors.  (2003)  3  SCC  641;  Yogesh  @

Sachin Jagdish Joshi v. State of Maharashtra  (2008) 10 SCC 394;  Pratapbhai

Hamirbhai Solanki v. State of Gujarat and Anr. (2013)  1  SCC  613;  Chandra

Prakash v. State of Rajasthan (2014) 8 SCC 340 etc.)
99.   In Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra    (2008)  10

SCC 394, this Court, after  referring  to  the  law  laid  down  in  several

pronouncements, summarised the core principles of law of conspiracy  in  the

following words:

“23. Thus, it is manifest that the meeting of minds of two or  more  persons

for doing an illegal act or an act by illegal means is sine qua non  of  the

criminal conspiracy but it may  not  be  possible  to  prove  the  agreement

between them by direct proof. Nevertheless, existence of the conspiracy  and

its objective can be inferred from the  surrounding  circumstances  and  the

conduct of the accused. But the  incriminating  circumstances  must  form  a

chain of events from which a conclusion  about  the  guilt  of  the  accused

could be drawn. It is well settled  that  an  offence  of  conspiracy  is  a

substantive offence and renders the mere  agreement  to  commit  an  offence

punishable even if an offence does not take place pursuant  to  the  illegal

agreement.”
100.  In the present  case,  there  is  ample  evidence  proving  the  acts,

statements and circumstances, establishing firm  ground  to  hold  that  the

accused who were present in the bus were in  prior  concert  to  commit  the

offence of rape.  The prosecution has  established  that  the  accused  were

associated with each other.   The  criminal  acts  done  in  furtherance  of

conspiracy, is established by the sequence of events and the conduct of  the

accused.  Existence of conspiracy and its objects  could  be  inferred  from

the chain of events.  The chain of events described by  the  victim  in  her

dying declarations coupled with the  testimony  of  PW-1  clearly  establish

that as soon as the complainant and the victim boarded the bus, the  accused

switched off the lights of the  bus.   Few  accused  pinned  down  PW-1  and

others committed rape on the victim in the back side of the  bus  one  after

the other.  The accused inserted iron rods  in  the  private  parts  of  the

prosecutrix, dragging her holding her hair and then threw  her  outside  the

bus.   The victim has also maintained in  her  dying  declaration  that  the

accused persons were exhorting that the victim has died and  she  be  thrown

out of the bus.  Ultimately,  both  the  victim  and  the  complainant  were

thrown out of the moving bus through the front door, having failed to  throw

them through the rear door.  The chain of action  and  the  act  of  finally

throwing the victim and PW-1 out of the bus show that  there  was  unity  of

object among the accused to commit rape and destroy the evidence thereon.

101.  In this case, the existence of conspiracy is sought to be drawn by  an

inference from the circumstances: (i) the accused did not  allow  any  other

passenger to board the bus after PW-1 and the prosecutrix boarded  the  bus;

(ii) switching off the lights;  pinning  PW-1  down  by  some  while  others

commit rape/unnatural sex with the prosecutrix at the rear side of the  bus;

(iii) exhortation by some of the accused that the victim be not left  alive;

and (iv) their act of throwing the victim and PW-1 out of  the  running  bus

without clothes in the wintery night of December.  Existence  of  conspiracy

and its objects is inferred from  the  above  circumstances  and  the  words

uttered. In my view, the courts below have rightly drawn an  inference  that

there was prior meeting of minds among the accused  and  they  have  rightly

held that the prosecution has proved the existence of conspiracy  to  commit

gang rape and other offences.

102.  As already stated in the beginning,  in  achieving  the  goal  of  the

conspiracy, several offences committed by some of the conspirators  may  not

be known to others, still all  the  accused  will  be  held  guilty  of  the

offence of criminal conspiracy.  The  trial  court  has  recorded  that  the

victim’s complete alimentary canal from the level  of  duodenum  upto  5  cm

from anal sphincter was completely damaged. It was  beyond  repair.  Causing

of damage to jejunum is indicative of the fact that the rods  were  inserted

through vagina  and/or  anus  upto  the  level  of  jejunum.”  Further  “the

septicemia was the direct result of  internal  multiple  injuries”.  Use  of

iron rod by one or more of the accused is sufficient to  inculpate  all  the

accused for the same.  In the present case, gang rape and use  of  iron  rod

caused grave injuries to victim’s vagina and intestines;  throwing  her  out

of the bus in that vegetative state in chilled weather  led  to  her  death;

all this taking place in the course of same transaction and with the  active

involvement of all the accused is more than sufficient evidence to find  the

accused guilty of criminal conspiracy. I, thus, affirm the findings  of  the

courts below with regard to conviction of all the accused under Section 120-

B IPC and Section 302 read with Section 120-B IPC.

103.   Apart  from  considering  the  principles  of   law   of   conspiracy

distinctly, if we consider it in the context of ‘conspiracy  to  commit  the

offence of gang rape, unnatural sex etc., as  is  specifically  relevant  in

the present case,  we  find  that  existence  of  common  intent  and  joint

liability is already implicit in the offence of  gang  rape.  Gang  rape  is

dealt with in clause (g) of           sub-section (2)  of  Section  376  IPC

read with Explanation 1.  As per Explanation 1 to Section 376 IPC, “where  a

woman is raped by one or more in a group of persons  acting  in  furtherance

of their common intention, each of the  persons  shall  be  deemed  to  have

committed gang rape” and all of them shall be liable to  be  punished  under

sub-section (2) of          Section 376  IPC.   As  per  Explanation  1,  by

operation of deeming provision, a person  who  has  not  actually  committed

rape is deemed to have committed rape even if only one  of  the  groups  has

committed rape in furtherance of the common intention.

104.   While considering the  scope  of  Section  376(2)(g)  IPC  read  with

Explanation, in Ashok Kumar v. State of  Haryana  (2003)  2  SCC  143,  this

Court held as under:-

“8. Charge against the appellant is under Section 376(2)(g)  IPC.  In  order

to establish an offence under Section 376(2)(g) IPC, read  with  Explanation

I thereto, the prosecution must adduce evidence to indicate that  more  than

one accused had acted in concert and in such an  event,  if  rape  had  been

committed by even one, all the accused will be guilty  irrespective  of  the

fact that she had been raped by one or more of them and it is not  necessary

for the prosecution to adduce evidence of a completed act of  rape  by  each

one of the accused. In other words, this provision embodies a  principle  of

joint liability and the essence  of  that  liability  is  the  existence  of

common intention; that common intention presupposes prior concert which  may

be determined from the conduct of offenders revealed during  the  course  of

action and it could arise  and  be  formed  suddenly,  but,  there  must  be

meeting of minds. It is not enough to have the same intention  independently

of each of the offenders. In such cases,  there  must  be  criminal  sharing

marking out a certain measure of jointness in  the  commission  of  offence.

[Emphasis added]”
So far as the offence under Section 376 (2)(g) IPC, the  sharing  of  common

intention and the jointness in commission of rape is concerned, the same  is

established by the presence of all the accused in the bus; their  action  in

concert as established by the dying declaration of the prosecutrix  and  the

evidence of PW-1, presence of blood in the clothes of all the  accused,  DNA

profile generated thereon being consistent  with  the  DNA  profile  of  the

victim.

105.  The prosecution has established the presence of  the  accused  in  the

bus and the heinous act of gang rape committed on  the  prosecutrix  by  the

accused by the ample evidence – by the multiple  dying  declaration  of  the

victim and also by the evidence of PW-1 and medical  evidence  and  also  by

arrest and recovery of incriminating articles of the victim and that of  PW-

1 complainant.  The scientific evidence in particular  DNA  analysis  report

clearly brings home the guilt of the accused.

106.  Section 235(2), Criminal Procedure Code: Once the  conviction  of  the

accused persons is affirmed, what remains to be decided is the  question  of

appropriate punishment imposed on them. On  the  aspect  of  sentencing,  we

were very effectively assisted by the learned Amicus Curiae.   Accused  were

convicted vide judgment and order dated 10.09.2013 and on the very next  day

of judgment i.e. on 11.09.2013, the arguments on sentencing were  concluded.

 Thereafter, a separate order on sentence was pronounced on 13.09.2013.

107.  Counsel for the appellants as well as  the  learned  amicus  Mr.  Raju

Ramachandran contended that  no  effective  opportunity  was  given  to  the

appellants to lead their defence on the  point  of  sentencing  as  mandated

under Section 235(2) Cr.P.C. and each of the accused were  not  individually

heard in person on the question of sentence.  Learned Amicus Curiae,     Mr.

Raju Ramachandran submitted only the counsel for the accused were heard  and

all  the  accused  were  treated  alike  irrespective  of  their  individual

background and were sentenced to death, which is in clear violation  of  the

mandate of Section 235(2) Cr.P.C.  It  was  submitted  that  Section  235(2)

Cr.P.C. is intended to give an opportunity to the accused  to  place  before

the Court all the relevant facts  and  material  having  a  bearing  on  the

question of sentence and, therefore,  salutary  provision  should  not  have

been treated as a mere formality by the trial  court.   In  support  of  his

contention, the  learned  Amicus  has  placed  reliance  upon  a  number  of

judgments viz. – (i) Dagdu  Ors. v. State of Maharashtra  (1977)  3     SCC

68; (ii) Malkiat Singh and Ors. v. State  of  Punjab  (1991)  4          SCC

341; and (iii) Ajay Pandit alias Jagdish Dayabhai Patel and  Anr.  v.  State

of Maharashtra (2012) 8 SCC 43.

108.   Section  235  Cr.P.C.  deals  with  the  judgments  of  acquittal  or

conviction.  Under Section 235(2) Cr.P.C., where the accused  is  convicted,

save in cases of admonition or release on  good  conduct,  the  Judge  shall

hear the accused on the question of  sentence  and  then  pass  sentence  in

accordance with law.  Section 235(2) Cr.P.C. imposes duty on  the  court  to

hear the accused on the question of sentence and then pass sentence  on  him

in accordance with law. The only exception to the said rule  is  created  in

case of applicability of Section 360 Cr.P.C. i.e. when the court  finds  the

accused eligible to be released  on  probation  of  good  conduct  or  after

admonition.

109.  Section 354 Cr.P.C. specifies the language and contents  of  judgment,

while delivering the judgment in a criminal case.   Section  354(3)  Cr.P.C.

deals with judgments where conviction is  for  an  offence  punishable  with

death  penalty  or  in  the  alternative   with   imprisonment   for   life.

 Section 354(3) Cr.P.C. mandates that when the conviction is for an  offence

punishable with death or, in the alternative, with imprisonment for life  or

imprisonment for a term of years, the judgment shall state the  reasons  for

the sentence awarded, and in the case of  sentence  of  death,  the  special

reasons for such sentence.

110.  The statutory duty to  state  special  reasons  under  Section  354(3)

Cr.P.C. can be meaningfully carried out only  if  the  hearing  on  sentence

under Section 235(2) Cr.P.C. is effective and procedurally fair.  To  afford

an effective opportunity  to  the  accused,  the  Court  must  hear  on  the

question of sentence to know about (i) age of the accused;  (ii)  background

of the accused; (iii) prior criminal antecedents, if any;  (iv)  possibility

of reformation, if any; and (v) such  other  relevant  factors.   The  major

deficiency in the complex criminal justice system is that important  factors

which  have  a  bearing  on  sentence  are  not  placed  before  the  Court.

Resultantly, the Courts are constantly faced with the dilemma to  impose  an

appropriate  sentence.  In  this  context,  hearing  of  the  accused  under

             Section 235(2) Cr.P.C. on  the  question  of  sentencing  is  a

crucial exercise which is intended to enable the  accused  to  place  before

the Court all the mitigating circumstances in his  favour  viz.  his  social

and economic backwardness, young age etc.  The  mandate  of  Section  235(2)

Cr.P.C. becomes more crucial when the accused is found guilty of an  offence

punishable with death penalty or with the life imprisonment.

111.  It is well-settled that Section 235(2) Cr.P.C. is intended to give  an

opportunity of hearing to the prosecution as well  as  the  accused  on  the

question of sentence.  The Court while awarding the  sentence  has  to  take

into consideration various factors having  a  bearing  on  the  question  of

sentence.  In case, Section 235(2) Cr.P.C. is not complied with, as held  in

Dagdu’s case, the appellate Court can either  send  back  the  case  to  the

Sessions Court for complying with Section 235(2) Cr.P.C.  so  as  to  enable

the accused to adduce materials; or, in order to avoid delay, the  appellate

Court may by  itself  give  an  opportunity  to  the  parties  in  terms  of

Section 235(2) Cr.P.C. to produce the materials they wish to adduce  instead

of sending the matter back to the trial Court for hearing on  sentence.   In

the present case, we felt it appropriate to  adopt  the  latter  course  and

accordingly  asked  the  counsel  appearing  for  the  appellants  to   file

affidavits/materials on the question of sentence.  Consequently, vide  order

dated 03.02.2017, we directed the learned counsel for the accused  to  place

in writing, before this Court, their submissions, whatever they  desired  to

place  on  the  question  of  sentence.   In  compliance  with  the   order,

Mr. M.L. Sharma, learned counsel on behalf of the accused A-2 Mukesh and  A-

5 Pawan and Mr. A.P. Singh, learned counsel on behalf of the accused  Akshay

Kumar Singh, Vinay Sharma and Pawan Gupta filed  the  individual  affidavits

of the accused.

112. Accused Mukesh (A-2) in his affidavit has stated that he was picked  up

from his house at Karoli, Rajasthan and  brought  to  Delhi  and  reiterated

that he is innocent and he denied his  involvement  in  the  occurrence.  In

their affidavits, accused Akshay Kumar Singh (A-3), accused Vinay Sharma (A-

4) and accused Pawan Gupta (A-5) submitted in  their  individual  affidavits

have stated that they hail from an ordinary/ poor  background  and  are  not

much educated. They have also stated that they have aged parents  and  other

family members who are dependent on them and they are  to  be  supported  by

them. Accused have also stated that they have no  criminal  antecedents  and

that after their  confinement  in  Tihar  Jail  they  have  maintained  good

behavior.

113.  Learned counsel Mr. M.L. Sharma submitted that  accused  Mukesh  (A-2)

is innocent and he has been  falsely  implicated  only  because  he  is  the

brother of accused Ram Singh.

114.  Taking us  through  the  affidavits  filed  by  the  accused,  learned

counsel Mr. A.P. Singh  submitted  that  the  accused  namely  Akshay  Kumar

Singh, Pawan Gupta and Vinay Sharma hail  from  very  poor  background;  and

have got large families to support; and have no  criminal  antecedents.   It

has been contended that having regard to the fact  that  the  three  accused

have no prior criminal antecedents and are not hardened criminals, the  case

will not fall under “rarest of rare cases” to affirm the death sentence.

115.  Supplementing the affidavits filed by the accused, the learned  amicus

and senior counsel Mr. Raju Ramachandran  and  Mr.  Sanjay  Hegde  submitted

that assuming that the conviction  of  the  appellants  are  confirmed,  the

accused who hail from very ordinary poor background and having  no  criminal

antecedents, the death sentence be commuted to life imprisonment.

116.  Question of awarding sentence is a matter of discretion and has to  be

exercised on consideration of circumstances  aggravating  or  mitigating  in

the individual cases.  The courts are consistently faced with the  situation

where they are required to answer the new challenges and mould the  sentence

to meet those challenges.  Protection of society and deterring the  criminal

is the avowed object of law.  It is expected of the courts  to  operate  the

sentencing system as to impose  such  sentence  which  reflects  the  social

conscience of the society.  While determining sentence  in  heinous  crimes,

Judges ought to  weigh  its  impact  on  the  society  and  impose  adequate

sentence  considering  the  collective  conscience  or  society’s  cry   for

justice.   While  considering  the  imposition  of  appropriate  punishment,

courts should not only keep in view the rights of the criminal but also  the

rights of the victim and the society at large.

117.  In State of M.P. v. Munna Choubey and Anr. (2005) 2 SCC  710,  it  was

observed as under:

“10. Therefore, undue sympathy to impose inadequate sentence would  do  more

harm to the justice  system  to  undermine  the  public  confidence  in  the

efficacy of law and  society  could  not  long  endure  under  such  serious

threats. It is, therefore, the duty of every court to award proper  sentence

having regard to the nature of the offence and the manner in  which  it  was

executed or committed etc. This position was illuminatingly stated  by  this

Court in Sevaka Perumal v. State of Tamil Naidu (1991) 3 SCC 471.”
118.  In Jashubha Bharatsinh Gohil and Ors. v. State of Gujarat    (1994)  4

SCC 353, while upholding the award of death sentence, this Court  held  that

sentencing process has to  be  stern  where  the  circumstances  demand  so.

Relevant extract is as under:

“12………The courts are constantly faced with  the  situation  where  they  are

required to answer to new challenges and  mould  the  sentencing  system  to

meet those challenges. Protection of society and deterring the  criminal  is

the avowed object of law and that is required to  be  achieved  by  imposing

appropriate sentence. The change in the legislative intendment  relating  to

award  of  capital  punishment  notwithstanding,  the  opposition   by   the

protagonist of abolition of capital sentence, shows that it is  expected  of

the courts to so operate the sentencing system as to  impose  such  sentence

which reflects the social conscience of the society. The sentencing  process

has to be stern where it should be.”
119.  Whether the Case falls under rarest of rare  cases:  Law  relating  to

award of death sentence in India has evolved through massive policy reforms-

nationally as well as internationally  and  through  a  catena  of  judicial

pronouncements, showcasing distinct phases of our  view  towards  imposition

of  death  penalty.  Undoubtedly,  continuing  prominence   of   reformative

approach in sentencing  and  India’s  international  obligations  have  been

majorly instrumental  in  facilitating  a  visible  shift  in  court’s  view

towards restricting imposition of death sentence. While closing the  shutter

of deterrent approach of sentencing in India, the small window of ‘award  of

death sentence’ was left open in the category of ‘rarest of  rare  case’  in

Bachan Singh v. State of Punjab (1980) 2 SCC 684, by  a  Constitution  Bench

of this Court.

120.  In Bachan Singh (supra),  while upholding the constitutional  validity

of capital  sentence,  this  Court  revisited  the  law  relating  to  death

sentence at that point of time, by thoroughly discussing the law  laid  down

in Jagmohan Singh v. State of U.P. (1973)  1  SCC  20;  Rajendra  Prasad  v.

State of U.P. (1979) 3 SCR 646 and other cases. The principles laid down  in

Bachan Singh’s case is that, normal rule is  awarding  of  ‘life  sentence’,

imposition of death sentence being justified, only in rarest of  rare  case,

when the option of awarding sentence of life imprisonment is  unquestionably

foreclosed’. By virtue of Bachan Singh (supra), ‘life  imprisonment’  became

the rule and ‘death sentence’ an  exception.  The  focus  was  shifted  from

‘crime’ to the ‘crime and criminal’ i.e. now the nature and gravity  of  the

crime  needs  to  be  analysed  juxtaposed  to  the  peculiar  circumstances

attending the societal existence of the criminal. The principles  laid  down

in Bachan Singh’s case were considered in Machhi Singh and Ors. v. State  of

Punjab (1983) 3 SCC 470 and was summarised as under:-

“38. In this background the guidelines  indicated  in  Bachan  Singh's  case

(supra) will have to be  culled  out  and  applied  to  the  facts  of  each

individual case where the question of imposing  of  death  sentence  arises.

The following propositions emerge from Bachan Singh's case (supra):

(i) The extreme penalty of death need not be  inflicted  except  in  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 an  exception.  In

other words 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.”
121.  In Machhi Singh’s case, this Court took the view that  in  every  case

where death penalty is a  question,  a  balance  sheet  of  aggravating  and

mitigating circumstances must be drawn up before arriving at  the  decision.

The Court held that for practical application of the doctrine of ‘rarest  of

rare case’, it  must  be  understood  broadly  in  the  background  of  five

categories of cases  crafted  thereon  that  is  ‘Manner  of  commission  of

crime’, ‘Motive’, ‘Anti-social or socially abhorrent nature of  the  crime’,

‘Magnitude of crime’, and ‘Personality of victim  of  murder’.   These  five

categories are elaborated in para nos. 32 to 37 as under:-

“32. The reasons  why  the  community  as  a  whole  does  not  endorse  the

humanistic approach reflected in “death  sentence-in-no-case”  doctrine  are

not far to seek.  In  the  first  place,  the  very  humanistic  edifice  is

constructed on the foundation of “reverence  for  life”  principle.  When  a

member of the community violates this  very  principle  by  killing  another

member, the society may not feel  itself  bound  by  the  shackles  of  this

doctrine. Secondly,  it  has  to  be  realized  that  every  member  of  the

community is able to live with safety without his  or  her  own  life  being

endangered because of the protective arm of the community and on account  of

the rule of law enforced by it. The very existence of the rule  of  law  and

the fear of being brought to book operates as  a  deterrent  for  those  who

have no scruples in killing others if it suits their ends. Every  member  of

the community owes a  debt  to  the  community  for  this  protection.  When

ingratitude is shown instead of gratitude  by  “killing”  a  member  of  the

community which protects the murderer himself from  being  killed,  or  when

the community feels that for the sake of self-preservation  the  killer  has

to be killed, the community may well withdraw the protection by  sanctioning

the death penalty. But the community will not do so in every  case.  It  may

do so “in rarest of  rare  cases”  when  its  collective  conscience  is  so

shocked that it will expect the holders of  the  judicial  power  centre  to

inflict death penalty irrespective of  their  personal  opinion  as  regards

desirability or otherwise of retaining  death  penalty.  The  community  may

entertain such a sentiment when the crime is viewed  from  the  platform  of

the motive for, or the manner of commission  of  the  crime,  or  the  anti-

social or abhorrent nature of the crime, such as for instance:

I. Manner of commission of murder

33. 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,

(i) when the house of the victim is set aflame  with  the  end  in  view  to

roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of torture or  cruelty  in

order to bring about his or her death.

(iii) when the body of the  victim  is  cut  into  pieces  or  his  body  is

dismembered in a fiendish manner.

II. Motive for commission of murder

34. When the murder is committed for a motive which evinces total  depravity

and meanness. For instance when (a) a hired assassin commits murder for  the

sake of money or reward (b)  a  cold-blooded  murder  is  committed  with  a

deliberate design in order to inherit  property  or  to  gain  control  over

property of a ward or a person under the control of the murderer  or  vis-a-

vis whom the murderer is in a  dominating  position  or  in  a  position  of

trust, or (c) a murder is committed  in  the  course  for  betrayal  of  the

motherland.

III. Anti-social or socially abhorrent nature of the crime

35. (a) When murder of a member of a Scheduled Caste or  minority  community

etc., is committed not for  personal  reasons  but  in  circumstances  which

arouse social wrath. For instance when such a crime is  committed  in  order

to terrorize such persons and frighten them into fleeing from a place or  in

order to deprive  them  of,  or  make  them  surrender,  lands  or  benefits

conferred on them with a view to reverse past injustices  and  in  order  to

restore the social balance.

(b) In cases of “bride burning” and what are  known  as  “dowry  deaths”  or

when murder is committed in order to remarry  for  the  sake  of  extracting

dowry once again or to marry another woman on account of infatuation.

IV. Magnitude of crime

36. When the crime is enormous in proportion.  For  instance  when  multiple

murders say of all or almost all the members of a family or a  large  number

of persons of a particular caste, community, or locality, are committed.

V. Personality of victim of murder

37. When the victim of murder is (a) an innocent child who  could  not  have

or has not provided even an excuse, much less a provocation, for murder  (b)

a helpless woman or a person rendered helpless by old age or  infirmity  (c)

when the victim is a person vis-a-vis whom the murderer is in a position  of

domination or trust (d) when the victim is a public figure  generally  loved

and respected by the community for the services  rendered  by  him  and  the

murder is committed for political or similar  reasons  other  than  personal

reasons.”
122.  The principle laid down in  Bachan  Singh  (supra)  and  Machhi  Singh

(supra) came to be discussed and  applied  in  all  the  cases  relating  to

imposition of  death  penalty  for  committing  heinous  offences.  However,

lately, it was felt that the courts have not correctly applied the law  laid

down in Bachan Singh (supra) and Machhi Singh  (supra),  which  has  led  to

inconsistency in sentencing process in India; also it was observed that  the

list of categories of murder crafted  in  Machhi  Singh  (supra),  in  which

death sentence ought to be awarded are not exhaustive and needs to be  given

even more expansive adherence owing to  changed  legal  scenario.  In  Swamy

Shradhananda alias Murali Manohar Mishra (2) v. State  of  Karnataka  (2008)

13 SCC 767; a three-Judge Bench of this Court, observed  as  under  in  this

regard:-

“43. In Machhi Singh the Court crafted the categories  of  murder  in  which

`the Community' should demand death sentence for  the  offender  with  great

care and thoughtfulness. But the judgment in Machhi Singh  was  rendered  on

20 July, 1983, nearly  twenty  five  years  ago,  that  is  to  say  a  full

generation earlier. A careful reading of the Machhi  Singh  categories  will

make it clear that the classification was made looking at murder  mainly  as

an act of maladjusted  individual  criminal(s).  In  1983  the  country  was

relatively free from organised and professional crime. Abduction for  Ransom

and Gang Rape and murders committed in course of those offences were yet  to

become a menace  for  the  society  compelling  the  Legislature  to  create

special slots for those offences in the Penal Code. At the  time  of  Machhi

Singh, Delhi had not witnessed the  infamous  Sikh  carnage.  There  was  no

attack  on  the  country's  Parliament.  There  were  no  bombs  planted  by

terrorists killing completely innocent people, men, women  and  children  in

dozens with sickening frequency. There were no private  armies.  There  were

no mafia cornering huge government contracts purely by muscle  power.  There

were no reports of killings  of  social  activists  and  `whistle  blowers'.

There were no reports of custodial deaths and rape and  fake  encounters  by

police or even by armed  forces.  These  developments  would  unquestionably

find a more pronounced reflection in any classification if one  were  to  be

made today. Relying upon the observations in  Bachan  Singh,  therefore,  we

respectfully wish to say that even though the categories  framed  in  Machhi

Singh provide very useful guidelines, nonetheless those cannot be  taken  as

inflexible, absolute or immutable. Further, even in those categories,  there

would be scope for flexibility as observed in Bachan Singh itself.”
123.  A  milestone  in  the  sentencing  policy  is  the  concept  of  ‘life

imprisonment till the remainder  of  life’  evolved  in  Swamy  Shradhananda

(2)(supra).   In this case, a man committed murder of his wife for  usurping

her property in a cold-blooded, calculated and diabolic  manner.  The  trial

court convicted the accused and death penalty was imposed on him  which  was

affirmed by the High Court.  Though the  conviction  was  affirmed  by  this

Court also on the point of sentencing, the views of  a  two-Judge  Bench  of

this Court, in Swamy Shradhananda v. State of Karnataka (2007)  12  SCC  282

differed, and consequently, the  matter  was  listed  before  a  three-Judge

Bench, wherein a mid way was carved. The three-Judge Bench, was of the  view

that even though the murder was diabolic, presence of certain  circumstances

in favour of the accused, viz. no mental or physical  pain  being  inflicted

on the victim, confession of the accused before the High  Court  etc.,  made

them reluctant to award death sentence. However,  the  Court  also  realised

that award of life imprisonment, which  euphemistically  means  imprisonment

for a term of 14 years (consequent to exercise of power  of  commutation  by

the executive), would be equally disproportionate punishment  to  the  crime

committed. Hence, in Swamy Shradhananda  (2)   (supra)  the  Court  directed

that the accused shall not be released from the prison till the rest of  his

life. Relevant extract from the judgment reads as under:

“92. The matter may be looked at from a slightly different angle. The  issue

of sentencing has two aspects. A sentence may be excessive and unduly  harsh

or it may be highly disproportionately inadequate. When an  appellant  comes

to this court carrying a death sentence  awarded  by  the  trial  court  and

confirmed by the High Court, this Court may find, as in the present  appeal,

that the case just falls short of the rarest of the rare  category  and  may

feel somewhat reluctant in endorsing the death sentence.  But  at  the  same

time, having regard to the nature of the crime, the Court may strongly  feel

that a sentence of life imprisonment  that  subject  to  remission  normally

works out to a term of  14  years  would  be  grossly  disproportionate  and

inadequate. What then the Court should do? If the Court's option is  limited

only to two punishments, one a sentence of  imprisonment,  for  all  intents

and purposes, of not more than 14 years and the other death, the  court  may

feel tempted and find itself nudged into endorsing the death  penalty.  Such

a course would indeed be disastrous. A far more just, reasonable and  proper

course would be to expand the options and to take over what, as a matter  of

fact, lawfully belongs to the  court,  i.e.,  the  vast  hiatus  between  14

years' imprisonment and death. It needs to  be  emphasized  that  the  Court

would take recourse to the expanded option primarily because  in  the  facts

of the case, the sentence of  14  years  imprisonment  would  amount  to  no

punishment at all.”
124.  After referring to a catena of  judicial  pronouncements  post  Bachan

Singh (supra) and Machhi Singh (supra), in the case of  Ramnaresh  and  Ors.

v. State of Chhattisgarh (2012) 4 SCC 257, this Court, tried to lay  down  a

nearly exhaustive list of  aggravating  and  mitigating  circumstances.   It

would be apposite to refer to the same here:

“Aggravating circumstances

(1)   The offences  relating  to  the  commission  of  heinous  crimes  like

murder, rape, armed dacoity, kidnapping, etc. by the accused  with  a  prior

record of conviction for capital felony or offences committed by the  person

having a substantial history of serious assaults and criminal convictions.

(2)   The offence was committed  while  the  offender  was  engaged  in  the

commission of another serious offence.

(3)   The offence  was  committed  with  the  intention  to  create  a  fear

psychosis in the public at large and was committed in a public  place  by  a

weapon or device which clearly could be hazardous to the life of  more  than

one person.

(4)   The offence of murder was committed for ransom  or  like  offences  to

receive money or monetary benefits.

(5) Hired killings.

(6)   The offence was committed outrageously for want only  while  involving

inhumane treatment and torture to the victim.

(7) The offence was committed by a person while in lawful custody.

(8)   The murder or the offence was committed to prevent a  person  lawfully

carrying out  his  duty  like  arrest  or  custody  in  a  place  of  lawful

confinement of himself or another. For instance, murder is of a  person  who

had acted in lawful discharge of his duty Under Section 43 Code of  Criminal

Procedure.   When the  crime  is  enormous  in  proportion  like  making  an

attempt  of  murder  of  the  entire  family  or  members  of  a  particular

community. When the victim is innocent, helpless or  a  person  relies  upon

the trust of relationship and social norms, like a child, helpless woman,  a

daughter or a niece staying with a father/uncle and is  inflicted  with  the

crime by such a trusted person.

(9)   When murder is committed for a motive which evidences total  depravity

and meanness.

(10) When there is a cold-blooded murder without provocation.

(11) The crime is committed so brutally that it pricks or  shocks  not  only

the judicial conscience but even the conscience of the society.

Mitigating circumstances
(1)   The manner and circumstances  in  and  under  which  the  offence  was

committed, for example, extreme mental or emotional disturbance  or  extreme

provocation in contradistinction to all these situations in normal course.

(2)   The age  of  the  accused  is  a  relevant  consideration  but  not  a

determinative factor by itself.

(3)   The chances of the accused of  not  indulging  in  commission  of  the

crime  again  and  the  probability  of  the  accused  being  reformed   and

rehabilitated.

(4)   The condition of the accused shows that he was mentally defective  and

the defect impaired his capacity to  appreciate  the  circumstances  of  his

criminal conduct.

(5)   The circumstances which, in normal course of life, would  render  such

a behaviour possible and could have the effect  of  giving  rise  to  mental

imbalance in that given situation like persistent harassment  or,  in  fact,

leading  to  such  a  peak  of  human  behaviour  that,  in  the  facts  and

circumstances of  the  case,  the  accused  believed  that  he  was  morally

justified in committing the offence.

(6)   Where the court upon proper appreciation of evidence is  of  the  view

that the crime was not committed in a preordained manner and that the  death

resulted in the course of commission of another crime and that there  was  a

possibility of it being construed as consequences to the commission  of  the

primary crime.

(7)   Where it is absolutely unsafe to rely upon the  testimony  of  a  sole

eyewitness though  the  prosecution  has  brought  home  the  guilt  of  the

accused.”
125.  Similarly, this Court in Sangeet  and  Another  v.  State  of  Haryana

(2013) 2 SCC 452, extensively analysed the evolution  of  sentencing  policy

in India and stressed on the need for  further  evolution.   In  para  (77),

this Court emphasized on making the sentencing  process  a  principled  one,

rather than Judge-centric one and held that a  re-look  is  needed  at  some

conclusions that have been taken for granted and we  need  to  continue  the

development of the law on the basis of experience gained over the years  and

views expressed in various decisions of this Court.

126.  As dealing with  sentencing,  courts  have  thus  applied  the  “Crime

Test”, “Criminal Test” and the “Rarest of the Rare Test”, the tests  examine

whether the society abhors such crimes and whether  such  crimes  shock  the

conscience of the society and attract intense  and  extreme  indignation  of

the community.   Courts  have  further  held  that  where  the  victims  are

helpless women, children or old persons and the accused  displayed  depraved

mentality, committing crime in a diabolic  manner,  the  accused  should  be

shown no remorse and death penalty should  be  awarded.   Reference  may  be

made to Holiram Bordoloi v. State of Assam (2005) 3 SCC  793  [Para  15-17],

Ankush Maruti Shinde and Ors. v. State  of  Maharashtra  (2009)  6  SCC  667

(para 31-34), Kamta Tiwari v. State of  Madhya  Pradesh  (1996)  6  SCC  250

(para 7-8), State of U.P. v. Satish (2005) 3 SCC 114  (para  24-31),  Sundar

alias Sundarajan v. State by Inspector of Police and Anr. (2013) 3  SCC  215

(para 36-38, 42-42.7, 43), Sevaka Perumal and Anr. v. State  of  Tamil  Nadu

(1991) 3 SCC 471  (para  8-10,  12),  Mohfil  Khan  and  Anr.  v.  State  of

Jharkhand (2015) 1 SCC 67 (para 63-65).

127.  Even the young age of the accused is  not  a  mitigating  circumstance

for commutation to life, as has been held in the case of Bhagwan  Swarup  v.

State of U.P. (1971) 3 SCC 759 (para  5),  Deepak  Rai  v.  State  of  Bihar

(2013) 10 SCC 421 (para 91-100) and  Shabhnam  v.  State  of  Uttar  Pradesh

(2015) 6 SCC 632 (para 36).

128.  Let me now refer to a few cases of rape and murder  where  this  Court

has confirmed the sentence of death.  In Molai   Anr.   v.  State  of  M.P.

 (1999)  9  SCC  581,  death  sentence  awarded  to  both  the  accused  for

committing offences under Sections 376 (2)(g) IPC, 302 read with     Section

34 IPC and 201 IPC, was confirmed by this Court.  The accused had  committed

gang rape on the victim, strangulated her  thereafter  and  threw  away  her

body into the septic tank with the cycle, after causing stab  injuries.   It

was held as under:

“36……It cannot be overlooked that Naveen, a 16 year old girl, was  preparing

for her 10th examination at her house and suddenly  both  the  accused  took

advantage of she being alone in the house and committed a most shameful  act

of rape. The accused did not stop there but they strangulated her  by  using

her under-garment and thereafter took her to the septic tank  alongwith  the

cycle and caused injuries with a sharp edged weapon.  The  accused  did  not

even stop there but they exhibited  the  criminality  in  their  conduct  by

throwing the dead  body  into  the  septic  tank  totally  disregarding  the

respect for a human dead body. Learned Counsel for the accused  (appellants)

could not point any mitigating circumstances from the record of the case  to

justify the reduction of sentence of either of the accused.  In  a  case  of

this nature, in our considered view, the  capital  punishment  to  both  the

accused is the only proper punishment  and  we  see  no  reason  to  take  a

different view than the one taken by the courts below.”
129.  In Bantu v. State of Uttar Pradesh (2008) 11 SCC 113, the victim  aged

about five years was not only raped, but was murdered in a diabolic  manner.

The Court awarded extreme punishment of death,  holding  that  for  deciding

just and appropriate sentence to be awarded for an offence, the  aggravating

and  mitigating  factors  and  circumstances  in  which  a  crime  has  been

committed must be delicately  balanced  by  the  Court  in  a  dispassionate

manner.

130.  In Ankush Maruti Shinde and Ors. v. State of  Maharashtra    (2009)  6

SCC 667, concerned accused were found guilty of offences under Sections  307

IPC, 376(2)(g) IPC and 397  read  with  395  and  396  of  IPC.  This  Court

declined to interfere with the concurrent findings of the courts  below  and

upheld death penalty  awarded  to  the  accused,  taking  into  account  the

brutality of the incident, tender age of the deceased, and  the  fact  of  a

minor girl being mercilessly gang raped and then put  to  death.  The  court

also noted that there was no provocation from the deceased’s  side  and  the

two  surviving  eye  witnesses  had  fully  corroborated  the  case  of  the

prosecution.

131.  In Mehboob Batcha and Ors. v. State rep. by Supdt. of  Police   (2011)

7 SCC 45, accused were policemen who had wrongfully confined one  Nandagopal

in police custody in Police Station Annamalai Nagar on  suspicion  of  theft

from 30.05.1992 till 02.06.1992 and had  beaten  him  to  death  there  with

lathis, and had also gang raped his wife Padmini in a barbaric manner.  This

Court could not award death penalty due to omission of the courts  below  in

framing charge under Section 302, IPC. However,  the  observations  made  by

this Court are worth quoting here:

“Bane hain ahal-e-hawas muddai bhi  munsif  bhi  Kise  vakeel  karein  kisse

munsifi chaahen -- Faiz Ahmed Faiz

1. If ever there was a case which cried out for death  penalty  it  is  this

one, but it is deeply regrettable that not only was no such penalty  imposed

but not even a charge under Section 302 IPC was framed against  the  accused

by the Courts below.

……………..

9. We have held in Satya Narain Tiwari @ Jolly and Anr.  v.  State  of  U.P.

(2010) 13 SCC 689 and in Sukhdev Singh v. State of  Punjab,  (2010)  13  SCC

656 that crimes against women are not ordinary crimes committed in a fit  of

anger or for property. They are  social  crimes.  They  disrupt  the  entire

social fabric, and hence they call for harsh punishment…………”
132.  In Mohd. Mannan @ Abdul Mannan v. State of Bihar (2011)  5   SCC  317,

this Court upheld award of death sentence to  a  43  year  old  accused  who

brutally raped and murdered a  minor  girl,  while  holding  a  position  of

trust. Relevant considerations  of  the  Court  while  affirming  the  death

sentence are extracted as under:

“26….The postmortem report shows various injuries on  the  face,  nails  and

body of the child. These injuries show the gruesome manner in which she  was

subjected to rape. The victim of crime is an  innocent  child  who  did  not

provide even an excuse, much less a provocation  for  murder.  Such  cruelty

towards a young child is appalling. The Appellant had stooped so low  as  to

unleash his monstrous self on the innocent, helpless and defenseless  child.

This act no doubt had invited  extreme  indignation  of  the  community  and

shocked the collective conscience of the  society.  Their  expectation  from

the authority conferred with the power to  adjudicate,  is  to  inflict  the

death sentence which is natural and logical. We  are  of  the  opinion  that

Appellant is a menace to the society and shall continue to be so and he  can

not be reformed. We have no manner of doubt that the case in hand  falls  in

the category of the rarest of  the  rare  cases  and  the  trial  court  had

correctly inflicted the death sentence which had rightly been  confirmed  by

the High Court.”
In Shivaji @ Dadya Shankar Alhat v. State of Maharashtra (2008) 15 SCC  269;

Rajendra Pralhadrao Wasnik v. The State of  Maharashtra  (2012)  4  SCC   37

award of death penalty in case of rape and murder was  upheld,  finding  the

incident brutal and accused a menace for the society.

133.  In Dhananjoy Chatterjee alias Dhana v. State  of  W.B.  (1994)  2  SCC

220, a security guard who was entrusted with the security of  a  residential

apartment had raped and murdered an eighteen year old inhabitant of  one  of

the flats in the said apartment, between 5.30 p.m. and 5.45 p.m. The  entire

case of the prosecution  was  based  on  circumstantial  evidence.  However,

Court found that it was a fit case for  imposing  death  penalty.  Following

observation of the Court while imposing death penalty is worth quoting:-

“14.  In recent years, the  rising  crime  rate-particularly  violent  crime

against women has made the criminal sentencing by the courts  a  subject  of

concern. Today there are  admitted  disparities.  Some  criminals  get  very

harsh sentences  while  many  receive  grossly  different  sentence  for  an

essentially  equivalent  crime  and  a  shockingly  large  number  even   go

unpunished, thereby encouraging the criminal  and  in  the  ultimate  making

justice suffer by weakening the system's credibility. Of course, it  is  not

possible to lay down any cut and  dry  formula  relating  to  imposition  of

sentence but the object of sentencing should be to see that the  crime  does

not go unpunished and the victim of  crime  as  also  the  society  has  the

satisfaction that justice has been done to it.  In  imposing  sentences,  in

the absence  of  specific  legislation,  Judges  must  consider  variety  of

factors and after considering all those factors and taking an over-all  view

of the situation, impose sentence which they consider to be  an  appropriate

one.  Aggravating  factors  cannot  be  ignored  and  similarly   mitigating

circumstances have also to be taken into consideration.

15.   In our opinion, the measure of punishment in a given case must  depend

upon the atrocity of  the  crime;  the  conduct  of  the  criminal  and  the

defenceless and unprotected state of the victim. Imposition  of  appropriate

punishment is the manner in which the courts respond to  the  society's  cry

for justice against  the  criminals.  Justice  demands  that  courts  should

impose punishment fitting to the crime so that  the  courts  reflect  public

abhorrence of the crime. The courts must not only keep in  view  the  rights

of the criminal but also the rights of the victim of crime and  the  society

at large while considering imposition of appropriate punishment.”  (emphasis

added)
134.  In a landmark judgment Shankar Kisanrao Khade v. State of  Maharashtra

(2013) 5 SCC 546,  Justice  Madan  B.  Lokur  (Concurring)  after  analysing

various cases of rape and murder, wherein death sentence  was  confirmed  by

this Court, in para (122) briefly laid down the grounds which  weighed  with

the Court in confirming the death penalty and the same read as under:-

“122. The principal reasons for confirming the death penalty  in  the  above

cases include:

(1) the cruel, diabolic, brutal, depraved and gruesome nature of  the  crime

(Jumman Khan v. State of U.P. (1991) 1  SCC  752,  Dhananjoy  Chatterjee  v.

State of W.B. (1994) 2 SCC 220, Laxman Naik v. State of Orissa (1994) 3  SCC

381, Kamta Tewari v. State of M.P. (1996) 6 SCC 250, Nirmal Singh  v.  State

of Haryana (1999) 3 SCC 670, Jai Kumar v. State of  M.P.  (1999)  5  SCC  1,

State of U.P. v. Satish (2005) 3 SCC 114, Bantu v. State of U.P.  (2008)  11

SCC 113, Ankush Maruti Shinde v. State of  Maharashtra  (2009)  6  SCC  667,

B.A. Umesh v. State of Karnataka (2011) 3 SCC 85, Mohd. Mannan v.  State  of

Bihar  (2011)  5  SCC  317  and  Rajendra  Pralhadrao  Wasnik  v.  State  of

Maharashtra (2012) 4 SCC 37);

(2) the crime results in public abhorrence, shocks the  judicial  conscience

or the conscience of society or the community (Dhananjoy  Chatterjee  (1994)

2 SCC 220, Jai Kumar (1999) 5 SCC 1, Ankush Maruti Shinde (2009) 6  SCC  667

and Mohd. Mannan (2011) 5 SCC 317);

(3) the reform or rehabilitation of the convict is not  likely  or  that  he

would be a menace to society (Jai Kumar(1999) 5 SCC 1, B.A. Umesh  (2011)  3

SCC 85 and Mohd. Mannan (2011) 5 SCC 317);

(4) the victims were defenceless (Dhananjoy Chatterjee  (1994)  2  SCC  220,

Laxman Naik (1994) 3 SCC 381, Kamta Tewari (1996) 6 SCC 250,  Ankush  Maruti

Shinde (2009) 6 SCC  667,  Mohd.  Mannan  (2011)  5  SCC  317  and  Rajendra

Pralhadrao Wasnik (2012) 4 SCC 37);

(5) the crime was either unprovoked or that it was  premeditated  (Dhananjoy

Chatterjee (1994) 2 SCC 220, Laxman Naik (1994)  3  SCC  381,  Kamta  Tewari

(1996) 6 SCC 250, Nirmal Singh (1999) 3 SCC 670, Jai Kumar (1999) 5  SCC  1,

Ankush Maruti Shinde (2009) 6 SCC 667, B.A. Umesh (2011) 3 SCC 85 and  Mohd.

Mannan (2011) 5 SCC 317) and in three cases the  antecedents  or  the  prior

history of the convict was taken into consideration (Shivu v. High Court  of

Karnataka (2007) 4 SCC  713,  B.A.  Umesh  (2011)  3  SCC  85  and  Rajendra

Pralhadrao Wasnik (2012) 4 SCC 37).”
135.  We also refer to para (106) of Shankar  Kisanrao  Khade’s  case  where

Justice Madan B. Lokur (Concurring) has exhaustively analysed  the  case  of

rape and murder where death penalty was converted to  that  of  imprisonment

for life and some of the  factors  that  weighed  with  the  Court  in  such

commutation.  Para (106) reads as under:-

“106. A study of the above cases suggests that there  are  several  reasons,

cumulatively  taken,  for  converting  the  death   penalty   to   that   of

imprisonment for life. However,  some  of  the  factors  that  have  had  an

influence in commutation include:

(1) the young age of the accused [Amit v. State of Maharashtra (2003) 8  SCC

93 aged 20 years, Rahul v. State of Maharashtra (2005) 10 SCC  322  aged  24

years, Santosh Kumar Singh  v.  State  (2010)  9  SCC  747  aged  24  years,

Rameshbhai Chandubhai Rathod (2) (2011) 2 SCC 764 aged 28 years and Amit  v.

State of U.P.(2012) 4 SCC 107 aged 28 years];

(2) the possibility of reforming and rehabilitating the accused (in  Santosh

Kumar Singh (2010) 9 SCC 747 and Amit v. State of U.P.(2012) 4 SCC  107  the

accused, incidentally, were young when they committed the crime);

(3) the accused had no prior criminal record  (Nirmal  Singh  (1999)  3  SCC

670, Raju (2001) 9 SCC 50,  Bantu  (2001)  9  SCC  615,  Amit  v.  State  of

Maharashtra (2003) 8 SCC 93, Surendra Pal Shivbalakpal  (2005)  3  SCC  127,

Rahul (2005) 10 SCC 322 and Amit v. State of U.P (2012) 4 SCC 107);

(4) the accused was not likely to  be  a  menace  or  threat  or  danger  to

society or the community (Nirmal  Singh  (1999)  3  SCC  670,  Mohd.  Chaman

(2001) 2 SCC 28, Raju (2001) 9 SCC 50, Bantu (2001) 9 SCC 615, Surendra  Pal

Shivbalakpal (2005) 3 SCC 127, Rahul (2005) 10 SCC 322  and  Amit  v.  State

of U.P. (2012) 4 SCC 107).

(5) a few other reasons need to be mentioned  such  as  the  accused  having

been acquitted by one of the courts (State of T.N. v. Suresh  (1998)  2  SCC

372, State of Maharashtra v. Suresh (2000) 1 SCC 471, State  of  Maharashtra

v. Bharat Fakira Dhiwar (2002) 1 SCC 622, State of Maharashtra  v.  Mansingh

(2005) 3 SCC 131 and Santosh Kumar Singh (2010) 9 SCC 747);

(6) the crime was not premeditated (Kumudi Lal v. State  of  U.P.  (1999)  4

SCC 108, Akhtar v. State of U.P. (1999) 6 SCC 60, Raju v. State  of  Haryana

(2001) 9 SCC 50 and Amrit Singh v. State of Punjab (2006) 12 SCC 79);

(7) the case was one of circumstantial evidence (Mansingh (2005) 3  SCC  131

and Bishnu Prasad Sinha (2007) 11 SCC 467).

In  one  case,  commutation  was  ordered  since  there  was  apparently  no

“exceptional” feature warranting a death penalty (Kumudi Lal  (1999)  4  SCC

108) and in another case because the trial court had awarded  life  sentence

but the High Court enhanced it to death (Haresh Mohandas  Rajput  (2011)  12

SCC 56).”
136.   In  the  same  judgment  in  Shankar  Kisanrao  Khade  v.  State   of

Maharashtra (2013) 5 SCC 546, Justice  Madan  B.  Lokur  (concurring)  while

elaborately analysing the question of imposing  death  penalty  in  specific

facts and circumstances of that particular case, concerning rape and  murder

of  a  minor,  discussed  the  sentencing  policy  of  India,  with  special

reference to execution of the sentences imposed by the Judiciary. The  Court

noted the prima facie difference in the standard of  yardsticks  adopted  by

two organs of the government viz. Judiciary and the  Executive  in  treating

the life of convicts convicted of  an  offence  punishable  with  death  and

recommended consideration of Law Commission of India over  this  issue.  The

relevant excerpt from the said judgment, highlighting the  inconsistency  in

the approach of Judiciary and Executive in the matter of sentencing,  is  as

under:

“148. It seems to me that though the Courts have been  applying  the  rarest

of rare principle, the Executive has taken into consideration  some  factors

not known to the Courts for converting a death sentence to imprisonment  for

life. It is imperative, in this regard, since we are dealing with the  lives

of people (both the accused and the rape-murder victim) that the Courts  lay

down a jurisprudential basis for awarding the death  penalty  and  when  the

alternative is unquestionably foreclosed so that the prevailing  uncertainty

is avoided. Death penalty and its execution should not become  a  matter  of

uncertainty nor should converting a death  sentence  into  imprisonment  for

life become a matter of chance. Perhaps the  Law  Commission  of  India  can

resolve the  issue  by  examining  whether  death  penalty  is  a  deterrent

punishment or is retributive justice or serves an incapacitative goal.”
In Shankar Kisanrao’s case, it was observed by Justice Madan B.  Lokur  that

Dhananjay Chatterjee’s case was perhaps the only case where  death  sentence

imposed on the accused, who was convicted for rape was executed.

137.  Another significant development in the sentencing policy of  India  is

the ‘victim-centric’ approach, clearly recognised in  Machhi  Singh  (Supra)

and re-emphasized in a plethora of cases.  It  has  been  consistently  held

that the courts have a duty towards society and that the  punishment  should

be corresponding to the crime and should act  as  a  soothing  balm  to  the

suffering of the victim and their family. [Ref: Gurvail  Singh  @  Gala  and

Anr. v. State of Punjab (2013) 2 SCC 713; Mohfil Khan and Anr. v.  State  of

Jharkhand (2015) 1 SCC 67; Purushottam Dashrath Borate and Anr. v. State  of

Maharashtra (2015) 6 SCC 652].  The Courts while considering  the  issue  of

sentencing are bound to acknowledge the rights  of  the  victims  and  their

family, apart from the rights of the society  and  the  accused.  The  agony

suffered by the family of the victims cannot be  ignored  in  any  case.  In

Mohfil Khan (supra), this Court specifically observed that ‘it would be  the

paramount duty of the Court to provide justice to the incidental victims  of

the crime – the family members of the deceased persons.

138.  The law laid down above, clearly  sets  forth  the  sentencing  policy

evolved over a period of time.  I now  proceed  to  analyse  the  facts  and

circumstances of the present case on the anvil of  above-stated  principles.

To be very precise, the nature and the manner of the act  committed  by  the

accused, and the effect it  casted  on  the  society  and  on  the  victim’s

family, are to be weighed against the  mitigating  circumstances  stated  by

the accused and the scope of  their  reform,  so  as  to  reach  a  definite

reasoned conclusion as to  what  would  be  appropriate  punishment  in  the

present case- ‘death sentence’, life sentence commutable  to  14  years’  or

‘life imprisonment for the rest of the life’.

139.  The question would be whether the present case could  be  one  of  the

rarest of rare cases warranting death penalty.  Before the court proceed  to

make a choice whether to award death  sentence  or  life  imprisonment,  the

court  is  to  draw  up  a  balance-sheet  of  aggravating  and   mitigating

circumstances attending to the commission of the offence and then  strike  a

balance  between  those  aggravating  and  mitigating   circumstances.   Two

questions are to be asked and answered:- (i)  Is  there  something  uncommon

about the crimes which regard sentence of imprisonment for life  inadequate;

(ii) Whether there  is  no  alternative  punishment  suitable  except  death

sentence.  Where a  crime  is  committed  with  extreme  brutality  and  the

collective conscience of the society is shocked,  courts  must  award  death

penalty, irrespective of their personal opinion as regards  desirability  of

death penalty.  By not imposing a death sentence in such cases,  the  courts

may do injustice to the society at large.

140.  We are here concerned with the award of  an  appropriate  sentence  in

case of brutal  gang-rape  and  murder  of  a  young  lady,  involving  most

gruesome and barbaric act of inserting iron rods in  the  private  parts  of

the victim. The act was committed in connivance and  collusion  of  six  who

were on a notorious spree running a bus, showcasing as a  public  transport,

with the intent of attracting passengers and  committing  crime  with  them.

The victim and her friend were picked up from the  Munirka  bus  stand  with

the mala fide intent of ravishing and torturing her. The  accused  not  only

abducted the victim, but gang-raped  her,  committed  unnatural  offence  by

compelling her for oral sex,   bit  her  lips,  cheeks,  breast  and  caused

horrifying injuries to  her  private  parts  by  inserting  iron  rod  which

ruptured the vaginal rectum, jejunum and rectum.  The diabolical  manner  in

which crime was committed leaves one  startled  as  to  the  pervert  mental

state of the inflictor. On top of it, after having failed  to  kill  her  on

the spot, by running the bus over her, the victim was thrown half  naked  in

the wintery night, with grievous injuries.

141.  If we look at the  aggravating  circumstances  in  the  present  case,

following factors would emerge:

Diabolic nature of  the  crime  and  the  manner  of  committing  crime,  as

reflected in committing gang-rape with the victim;  forcing her  to  perform

oral sex, injuries on the body  of  the  deceased  by  way  of  bite  marks;

insertion of iron rod in her private parts and  causing  fatal  injuries  to

her private parts and other internal  injuries;  pulling  out  her  internal

organs which caused sepsis and ultimately led to  her  death;  throwing  the

victim and the complainant (PW-1)  naked  in  the  cold  wintery  night  and

trying to run the bus over them.

The brazenness and coldness with  which  the  acts  were  committed  in  the

evening hours by picking up the  deceased  and  the  victim  from  a  public

space, reflects the threat to which the society would be posed to,  in  case

the accused are not appropriately punished. More so, it reflects that  there

is no scope of reform.

The horrific acts reflecting the in-human extent to which the accused  could

go to satisfy their lust, being completely oblivious, not only to the  norms

of the society, but also to the norms of humanity.

The acts committed so shook the conscience of the society.

142.  As noted earlier, on the aspect of sentencing,  seeking  reduction  of

death sentence  to  life  imprisonment,  three  of  the  convicts/appellants

namely A-3 Akshay, A-4 Vinay and A-5 Pawan placed on record,  through  their

individual affidavits dated 23.03.2017, following mitigating circumstances:-

(a)   Family circumstances such as poverty and rural background,

(b)   Young age,

(c)   Current family situation including  age  of  parents,  ill  health  of

family members and their responsibilities towards their  parents  and  other

family members,

(d)   Absence of criminal antecedents,

(e)   Conduct in jail, and

(f)   Likelihood of reformation.

In his affidavit, accused Mukesh reiterated his innocence and  only  pleaded

that he is falsely implicated in the case.

143.  In Purushottam Dashrath  Borate  and  Anr.  v.  State  of  Maharashtra

(2015) 6 SCC 652, this  Court  held  that  age  of  the  accused  or  family

background of the accused or lack of criminal antecedents cannot be said  to

be the mitigating circumstance.  It cannot also be considered as  mitigating

circumstance, particularly taking into consideration, the nature of  heinous

offence and cold and calculated manner in which  it  was  committed  by  the

accused persons.

144.   Society’s  reasonable  expectation  is  that   deterrent   punishment

commensurate with the gravity of the offence be awarded. When the  crime  is

brutal, shocking the collective conscience of  the  community,  sympathy  in

any form would be misplaced and it would shake the confidence of  public  in

the administration of criminal justice system.   As held in  Om  Prakash  v.

State of Haryana (1999) 3 SCC 19, the Court must respond to the cry  of  the

society and to settle what would be a deterrent punishment for what  was  an

apparently abominable crime.

145.  Bearing in mind the above principles governing the sentencing  policy,

I have considered all the aggravating and mitigating  circumstances  in  the

present case.  Imposition of appropriate punishment is the manner  in  which

the courts respond to the society’s  cry  for  justice  against  the  crime.

Justice demands that the courts  should  impose  punishments  befitting  the

crime so that it reflects public abhorrence of the crime.  Crimes  like  the

one before us cannot be looked with magnanimity. Factors like young  age  of

the  accused  and  poor  background  cannot  be  said   to   be   mitigating

circumstances.  Likewise, post-crime remorse and post-crime good conduct  of

the accused, the statement of the accused as to their background and  family

circumstances, age, absence of criminal antecedents and their  good  conduct

in prison, in my view, cannot be taken as mitigating circumstances  to  take

the case out of the category of “rarest of rare cases”.   The  circumstances

stated by the accused in their affidavits are too slender to be  treated  as

mitigating circumstances.

146.  In the present case, there is not even a  hint  of  hesitation  in  my

mind  with  respect  to  the  aggravating  circumstances   outweighing   the

mitigating circumstances and I do not find any justification to convert  the

death sentence imposed by the courts below to  ‘life  imprisonment  for  the

rest of the life’.   The  gruesome  offences  were  committed  with  highest

viciousness. Human lust was allowed  to  take  such  a  demonic  form.   The

accused may not be hardened criminals; but the cruel  manner  in  which  the

gang-rape was committed in the moving bus; iron rods were  inserted  in  the

private parts of the victim; and the coldness with which  both  the  victims

were thrown naked in cold wintery night of December, shocks  the  collective

conscience of the society.   The  present  case  clearly  comes  within  the

category  of  ‘rarest  of  rare  case’  where  the  question  of  any  other

punishment is ‘unquestionably foreclosed’.   If  at  all  there  is  a  case

warranting award  of  death  sentence,  it  is  the  present  case.  If  the

dreadfulness  displayed  by  the  accused  in  committing   the   gang-rape,

unnatural sex, insertion of iron rod in the  private  parts  of  the  victim

does not fall in the ‘rarest of rare category’, then  one  may  wonder  what

else would fall in that category. On  these  reasoning  recorded  by  me,  I

concur with the majority in affirming the  death  sentence  awarded  to  the

accused persons.

147. The incident of gang-rape on the night of  16.12.2012  in  the  capital

sparked public protest not only in Delhi  but  nation-wide.  We  live  in  a

civilized society where law and order is  supreme  and  the  citizens  enjoy

inviolable fundamental human rights.  But when  the  incident  of  gang-rape

like the present one surfaces,  it  causes  ripples  in  the  conscience  of

society and serious doubts are raised as to whether  we  really  live  in  a

civilized society and whether both men and women  feel  the  same  sense  of

liberty and freedom which they should have felt in the ordinary course of  a

civilized society, driven by rule of law.   Certainly, whenever  such  grave

violations of human dignity come to fore, an  unknown  sense  of  insecurity

and helplessness grabs the entire society,  women  in  particular,  and  the

only succour people look for, is the State to take command of the  situation

and remedy it effectively.

148. The statistics of National Crime Records Bureau which I have  indicated

in the beginning of my judgment show  that  despite  the  progress  made  by

women in education and in various fields and changes  brought  in  ideas  of

women’s rights, respect for women is  on  the  decline  and  crimes  against

women are on the increase. Offences against women are not  a  women’s  issue

alone but, human rights issue. Increased rate of crime against women  is  an

area of concern for the law-makers and it points out  an  emergent  need  to

study in depth the root of the problem and remedy the same through a  strict

law and order regime. There are a number of legislations and numerous  penal

provisions to punish the offenders of violence against  women.  However,  it

becomes important to ensure that gender justice  does  not  remain  only  on

paper.

149.  We  have  a  responsibility  to  set  good  values  and  guidance  for

posterity.  In the words of great  scholar,  Swami  Vivekananda,  “the  best

thermometer to the progress of a nation is  its  treatment  of  its  women.”

Crime against women not only affects women’s self  esteem  and  dignity  but

also degrades the pace of societal development.  I hope that  this  gruesome

incident in the capital and death of this young woman will be an  eye-opener

for a mass movement “to end violence against women” and “respect  for  women

and her dignity” and sensitizing public at large on gender  justice.   Every

individual, irrespective of his/her gender must be  willing  to  assume  the

responsibility in fight for gender justice and also  awaken  public  opinion

on gender justice. Public at large, in particular men, are to be  sensitized

on gender justice. The battle for  gender  justice  can  be  won  only  with

strict implementation of legislative provisions,  sensitization  of  public,

taking other pro-active steps at all levels for combating  violence  against

women and ensuring widespread attitudinal changes and  comprehensive  change

in the existing mind set.  We hope that this incident will pave the way  for

the same.

                                                              .………………………..J.

                                               [R. BANUMATHI]

New Delhi;

May   05, 2017.

-----------------------

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