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Mukesh vs State For Nct Of Delhi on 9 July, 2018

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REPORTABLE
IN SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

REVIEW PETITION (CRL.) NO. 570 OF 2017

IN

CRIMINAL APPEAL NO. 607 OF 2017

MUKESH ….PETITIONER

VERSUS

STATE OF NCT OF DELHI ….RESPONDENT

J U D G M E N T

ASHOK BHUSHAN J.

The petitioner by this review petition filed

under Article 137 of the Constitution of India prays

to review the final judgment dated 05.05.2017 passed

by this Court by which Criminal Appeal No. 607 of
Signature Not Verified

2017 has been dismissed.

Digitally signed by
CHETAN KUMAR
The horrific incident which
Date: 2018.07.09
18:20:35 IST
Reason:

took place on 16.12.2012 in Delhi wherein a young
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lady of twenty three years (Nirbhaya, a changed name)

was gang raped and brutally injured who subsequently

died, in which the petitioner was one of the accused.

The petitioner was convicted and awarded death

sentence by Additional Sessions Judge (Special Fast

Track Court) Saket Court Complex New Delhi. Delhi

High Court confirmed the death reference and

dismissed the criminal appeal filed by the petitioner

challenging his conviction and sentence.

2. Aggrieved against the judgment of the Delhi High

Court dated 13.03.2014, Criminal Appeal No. 607 of

2017 was filed by the petitioner which appeal was

dismissed by this Court on 05.05.2017. Now, this

application is filed to review the judgment dated

05.05.2017 dismissing the Criminal Appeal of the

petitioner.

3. Before we enter into the submissions raised in

this review petition, it is useful to recapitulate

the scope and grounds available for exercise of

jurisdiction by this Court under Article 137. Order
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XLVII Rule 1 of the Supreme Court Rules, 2013 dealing

with review is as follows:

“i. The Court may review its judgment or
order, but no application for review will
be entertained in a civil proceeding except
on the ground mentioned in Order XLVII,
rule 1 of the Code, and in a criminal
proceeding except on the ground of an error
apparent on the face of the record.”

4. In various decisions, this Court has already

settled the law with regards to the maintainability

of review petition under Article 137 of the

Constitution of India read with Order XL Rule 1 of

Supreme Court Rules, 1966 in criminal appeals. Before

we consider the points raised by the accused, we may

usefully refer to some of the decisions.

5. The power of review of the Supreme Court as

envisaged under Article 137 of the Constitution is no

doubt wider than review jurisdiction conferred by

other statutes on the Court. Article 137 empowers the

Supreme Court to review any judgment pronounced or

made, subject, of course, to the provisions of any
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law made by Parliament or any rule made under Article

145 of the Constitution.

6. An application to review a judgment is not to be

lightly entertained and this Court could exercise its

review jurisdiction only when grounds are made out as

provided in Order XLVII Rule 1 of the Supreme Court

Rules, 2013 framed under Article 145 of the

Constitution of India. This Court in Sow Chandra

Kante and another v. Sheikh Habib, (1975) 1 SCC 674

speaking through Justice V.R. Krishna Iyer on review

has stated the following in para 10:

“10. A review of a judgment is a serious
step and reluctant resort to it is proper
only where a glaring omission or patent
mistake or like grave error has crept in
earlier by judicial fallibility. A mere
repetition, through different counsel, of
old and overruled arguments, a second trip
over ineffectually covered ground or minor
mistakes of inconsequential import are
obviously insufficient.”

7. As per rule, review in a criminal proceeding is

permissible only on the ground of error apparent on

the face of the record. This Court in P.N. Eswara

Iyer and others v. Registrar, Supreme Court of
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India, (1980) 4 SCC 680 while examining the review

jurisdiction of this Court vis a vis criminal and

civil proceedings had made the following observations

in paras 34 and 35:

“34. The rule, on its face, affords a wider
set of grounds for review for orders in
civil proceedings, but limits the ground
vis-a-vis criminal proceedings to “errors
apparent on the face of the record”. If at
all, the concern of the law to avoid
judicial error should be heightened when
life or liberty is in peril since civil
penalties are often less traumatic. So, it
is reasonable to assume that the framers of
the rules could not have intended a
restrictive review over criminal orders or
judgments. It is likely to be the other way
about. Supposing an accused is sentenced to
death by the Supreme Court and the
“deceased” shows up in court and the court
discovers the tragic treachery of the
recorded testimony. Is the court helpless
to review and set aside the sentence of
hanging? We think not. The power to review
is in
Article 137 and it is equally wide in
all proceedings. The rule merely canalises
the flow from the reservoir of power. The
stream cannot stifle the source. Moreover,
the dynamics of interpretation depend on
the demand of the context and the lexical
limits of the test. Here “record” means any
material which is already on record or may,
with the permission of the court, be
brought on record. If justice summons the
Judges to allow a vital material in, it
becomes part of the record; and if apparent
error is there, correction becomes
necessitous.

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35. The purpose is plain, the language is
elastic and interpretation of a necessary
power must naturally be expansive. The
substantive power is derived from
Article
137 and is as wide for criminal as for
civil proceedings. Even the difference in
phraseology in the rule (Order 40 Rule 2)
must, therefore, be read to encompass the
same area and not to engraft an artificial
divergence productive of anomaly. If the
expression “record” is read to mean, in its
semantic sweep, any material even later
brought on record, with the leave of the
court, it will embrace subsequent events,
new light and other grounds which we find
in Order 47 Rule 1, CPC. We see no
insuperable difficulty in equating the area
in civil and criminal proceedings when
review power is invoked from the same
source.”

8. In Devender Pal Singh v. State, NCT of Delhi,

(2003) 2 SCC 501, it was held that review is not

rehearing of the appeal all over again. The review is

not an appeal in disguise. In Suthendraraja alias

Suthenthira Raja alias Santhan and Others vs. State

through Superintendent of Police, CBI, (1999) 9 SCC

323, it was held as under:-

“5. It would be seen that the scope of
review in criminal proceedings has been
considerably widened by the pronouncement
in the aforesaid judgment. In any case
review is not rehearing of the appeal all
over again and to maintain a review
petition it has to be shown that there has
been a miscarriage of justice. Of course,
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the expression “miscarriage of justice” is
all-embracing…”

9. The scope of review jurisdiction has been

considered by this Court in a number of cases and the

well settled principles have been reiterated time and

again. It is sufficient to refer to judgment of this

Court in Kamlesh Verma vs. Mayawati and others (2013)

8 SCC 320, where this Court has elaborately

considered the scope of review. In paras 17, 18, 20.1

and 20.2 following has been laid down:

“17. In a review petition, it is not open
to the Court to reappreciate the evidence
and reach a different conclusion, even if
that is possible. Conclusion arrived at on
appreciation of evidence cannot be assailed
in a review petition unless it is shown
that there is an error apparent on the face
of the record or for some reason akin
thereto. This Court in Kerala SEB v. Hitech
Electrothermics Hydropower Ltd. held as
under: (SCC p. 656, para 10)

“10. … In a review petition it is not open
to this Court to reappreciate the evidence
and reach a different conclusion, even if
that is possible. The learned counsel for
the Board at best sought to impress us
that the correspondence exchanged between
the parties did not support the conclusion
reached by this Court. We are afraid such
a submission cannot be permitted to be
advanced in a review petition. The
appreciation of evidence on record is
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fully within the domain of the appellate
court. If on appreciation of the evidence
produced, the court records a finding of
fact and reaches a conclusion, that
conclusion cannot be assailed in a review
petition unless it is shown that there is
an error apparent on the face of the
record or for some reason akin thereto. It
has not been contended before us that
there is any error apparent on the face of
the record. To permit the review
petitioner to argue on a question of
appreciation of evidence would amount to
converting a review petition into an
appeal in disguise.”

18. Review is not rehearing of an original
matter. The power of review cannot be
confused with appellate power which enables
a superior court to correct all errors
committed by a subordinate court. A
repetition of old and overruled argument is
not enough to reopen concluded
adjudications. This Court in
Jain Studios
Ltd. v. Shin Satellite Public Co. Ltd.,
held as under: (SCC pp. 504-505, paras 11-

12)

“11. So far as the grievance of the
applicant on merits is concerned, the
learned counsel for the opponent is right
in submitting that virtually the applicant
seeks the same relief which had been
sought at the time of arguing the main
matter and had been negatived. Once such a
prayer had been refused, no review
petition would lie which would convert
rehearing of the original matter. It is
settled law that the power of review
cannot be confused with appellate power
which enables a superior court to correct
all errors committed by a subordinate
court. It is not rehearing of an original
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matter. A repetition of old and overruled
argument is not enough to reopen concluded
adjudications. The power of review can be
exercised with extreme care, caution and
circumspection and only in exceptional
cases.

12. When a prayer to appoint an arbitrator
by the applicant herein had been made at
the time when the arbitration petition was
heard and was rejected, the same relief
cannot be sought by an indirect method by
filing a review petition. Such petition,
in my opinion, is in the nature of ‘second
innings’ which is impermissible and
unwarranted and cannot be granted.””

20.1. When the review will be maintainable:

(i) Discovery of new and important matter
or evidence which, after the exercise of
due diligence, was not within knowledge of
the petitioner or could not be produced by
him;

(ii) Mistake or error apparent on the face
of the record;

(iii) Any other sufficient reason.
The words “any other sufficient reason”
have been interpreted in Chhajju Ram v.
Neki and approved by this Court in
Moran
Mar Basselios Catholicos v. Most Rev. Mar
Poulose Athanasius to mean “a reason
sufficient on grounds at least analogous to
those specified in the rule”. The same
principles have been reiterated in
Union of
India v. Sandur Manganese Iron Ores Ltd.

20.2. When the review will not be
maintainable:

(i) A repetition of old and overruled
argument is not enough to reopen concluded
adjudications.

(ii) Minor mistakes of inconsequential
import.

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(iii) Review proceedings cannot be equated
with the original hearing of the case.

(iv) Review is not maintainable unless the
material error, manifest on the face of
the order, undermines its soundness or
results in miscarriage of justice.

(v) A review is by no means an appeal in
disguise whereby an erroneous decision is
reheard and corrected but lies only for
patent error.

(vi) The mere possibility of two views on
the subject cannot be a ground for review.

(vii) The error apparent on the face of
the record should not be an error which
has to be fished out and searched.

(viii) The appreciation of evidence on
record is fully within the domain of the
appellate court, it cannot be permitted to
be advanced in the review petition.

(ix) Review is not maintainable when the
same relief sought at the time of arguing
the main matter had been negatived.”

10. This Very Bench speaking through one of us

(Justice Ashok Bhushan) had occasion to consider the

ambit and scope of the review petition in a criminal

proceeding in Vikram Singh alias Vicky Walia and

another vs. State of Punjab and another (2017) 8 SCC

518. In para 23 of the judgement following has been

stated:

“23. In view of the above, it is clear that
scope, ambit and parameters of review
jurisdiction are well defined. Normally in
a criminal proceeding, review applications
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cannot be entertained except on the ground
of error apparent on the face of the
record. Further, the power given to this
Court under
Article 137 is wider and in an
appropriate case can be exercised to
mitigate a manifest injustice. By review
application an applicant cannot be allowed
to reargue the appeal on the grounds which
were urged at the time of the hearing of
the criminal appeal. Even if the applicant
succeeds in establishing that there may be
another view possible on the conviction or
sentence of the accused that is not a
sufficient ground for review. This Court
shall exercise its jurisdiction to review
only when a glaring omission or patent
mistake has crept in the earlier decision
due to judicial fallibility. There has to
be an error apparent on the face of the
record leading to miscarriage of justice to
exercise the review jurisdiction under
Article 137 read with Order 40 Rule 1.
There has to be a material error manifest
on the face of the record with results in
the miscarriage of justice.”

11. Applying the parameters of the review

jurisdiction as noticed above, we now proceed to

examine the grounds given in the review petition to

find out as to whether there are any grounds for

exercising the review jurisdiction by this court to

review the judgment dated 05.05.2017.
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12. We have heard Shri M.L.Sharma learned counsel

appearing for the petitioner and Shri Sidharth Luthra

learned senior counsel appearing for the respondent.

13. In support of the review petition, Shri Sharma

has raised various submissions which according to Mr.

Sharma furnish grounds to review the judgment to

protect the fundamental rights of the petitioner

guaranteed under Articles 21, 20(3), 22(1) and 22(2)

of the Constitution of India. We now proceed to

examine the submissions in seriatim.

14. Shri Sharma submits that police arrested Mukesh

from Karoli, the State of Rajasthan on 17.12.2012 in

the morning and he was shown to be arrested in the

evening of 18.12.2012 at Safdarjung Hospital in

Delhi. He submits that Mukesh was not produced before

the concerned Magistrate within twenty four hours of

his arrest at Karoli which is violative of rights

guaranteed under Articles 22(1) and 22(2).
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15. Shri Sharma has further contended that police

has coerced the petitioner to give his vakalatnama in

favour of one V.K. Anand advocate, who was police

sponsored advocate. He submits that the petitioner

has given his vakalatnama in favour of Shri M.L.

Sharma advocate in January 2013 and April 2013 but

police imposed Advocate V.K. Anand as his advocate

and compelled to give his confession statement under

Section 313 Cr.P.C.

16. Shri M.L. Sharma further submitted that accused

Mukesh was tortured by police with regard to which he

also filed an affidavit in March 2013 before the

trial court and this affidavit was not considered by

this Court. It is submitted that statement under

Section 313 Cr. P.C. of the petitioner was got

recorded under torture of police.

17. One of the submissions of Shri Sharma was that

accused Mukesh did not know driving of a bus and had

driving licence which was only for LMV(Motorcycle).
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18. It is further submitted by Shri Sharma that this

Court has not considered the remand application filed

by the IO Exh. PW.80/D2, which clearly proves that no

disclosure existed till 22.12.2012.

19. One of the submissions which has been raised by

Shri Sharma is that this Court had not adverted to

the call details as per which accused Mukesh could

not have been in the bus on 16.12.2012, since at that

time a call was received by him from Ram Singh at

8.55 p.m.

20. Shri Sharma has attacked the second dying

declaration recorded by the SDM, Usha Chaturvedi and

submitted that in the police diary there is no

mention of dying declaration recorded by the SDM,

Usha Chaturvedi.

21. Shri Sharma has again attacked the evidence of

PW.1 and tried to point out certain contradictions

and errors.

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22. Learned counsel submitted that as application for

additional evidences under Section 391 Cr.P.C.

remained pending before the Appellate Court and no

orders were passed therein.

23. Shri Sidharth Luthra, learned senior counsel

replying the aforesaid submissions contends that

police on information received from one Ram Singh has

reached to Karoli district, Rajasthan and reached at

the house of Mukesh at 10.45 a.m. and apprehended the

petitioner who was brought to Delhi and first taken

to Vasant Vihar Police Station and after coming to

know that IO was at Safdarjung Hospital, accused was

taken to the said hospital where he was formally

arrested at 6.30 p.m. on 18.12.2012.

24. Shri Luthra, learned senior counsel for the

respondent has taken us to the proceedings of trial

court and the orders passed by trial court in support

of his submission that it was on the statement of

Mukesh accused before the Court where he expressed a

desire to discharge Shri M.L. Sharma the Court passed
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an order on 24.01.2013 discharging Shri Sharma on the

request of accused and thereafter V.K. Anand was

permitted to be engaged by the petitioner.

25. Opposing the submission regarding coercion and

torture, Shri Sidharth Luthara submitted that Mukesh

was in judicial custody and from judicial custody he

used to go to Court to attend the trial. On several

occasions, the Court interacted with the accused and

in none of the occasion, accused at any point of time

complained of any torture by police or jail

authorities. Shri Luthra further submitted that Court

had directed for medical checkups of Mukesh and also

sought a report of Mukesh. The torture by police was

never alleged or proved by the accused.

26. Learned Counsel for the respondent submits that

the issue regarding not having driving licence for

Bus was not raised during the trial or during the

cross-examination of the witnesses, hence, at this

stage, it cannot be allowed to be raised.
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27. Shri Sidharth Luthra replying the submission

regarding remand application dated 22.12.2012

submitted that after the arrest of accused on

18.12.2012, the accused was produced before the

Magistrate on 19.12.2012 and after TIP was conducted

on 20.12.2012 he was remanded in the police custody

for three days on 22.12.2012, hence the remand

application was given on 22.12.2012.

28. Shri Luthra replying the submission based on

call details of Mukesh it is submitted that this

Court in its judgment dated 05.05.2017 has

elaborately considered all the evidences and held

that Mukesh was in the bus, which was boarded by the

prosecutrix and PW.1 at about 9.00 p.m. and it was

proved that Mukesh was driving the bus. We have

considered the submissions of both the parties and

have perused the records.

29. Coming to the submission of arrest at Karoli, the

High Court has dealt this submission in paras 288 to

294. The High Court has noticed in para 290 that

petitioner in his statement under Section 313 Cr.P.C.
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in an answer of question No.132 claimed that he was

not apprehended at his village Karoli, Rajasthan but

was apprehended at Ravidass Camp in Delhi. High Court

noticing the judgment of the Privy Council in the

Prabhu v. Emperor, AIR 1944 PC 73 had observed that

conviction shall not be affected by any irregularity

in his arrest. Police have shown a formal arrest on

18.12.2012 and this Court vide its judgment dated

05.05.2017 has also noticed the fact that accused was

formally arrested at Safdarjung Hospital on

18.12.2012 at 6.30 p.m. at Safdarjung Hospital, in

the evening. This submission does not make out any

ground to hold that conviction and trial of the

accused is vitiated in any manner so as to call for

review of the judgment dated 05.05.2017. There is no

apparent error in the Judgment dated 05.05.2017.

30. Coming to the submission that Shri V.K. Anand,

Advocate was forced on petitioner it is sufficient to

note the order sheet of trial court which noticed all

facts. In proceeding dated 24.01.2013 the Trial Court

has recorded:

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“… Lastly, I have called accused Mukesh
from JC, in my chamber and asked him about
his counsel. He replied that earlier he had
appointed Shri Manohar Lal Sharma, Advocate
vide vakalatnamas dated 08.01.2013 and
09.01.2013 but now would like to change his
counsel and has appointed Mr. V.K.Anand,
Advocate, as his counsel before this court
from today. Vakalatnama is filed. Shri
Manohar Lal Sharma, Advocate, is thus
discharged.

Accused Mukesh even informed that he do
not intend to avail the services of Shri N.
Rajaraman, Advocate-on-record, in the
Transfer Petition pending before the
Hon’ble Supreme Court of India and that he
had requested Shri V.K.Anand, Advocate, to
be his counsel, even in the Hon’ble Supreme
Court of India and to engage some other
Advocate-on-Record.

Again when the accused made his request to avail

the services of M.L. Sharma, said fact was recorded

on 20.03.2013 proceeding and Shri Sharma started

representing accused Mukesh. Subsequent order-sheet

also indicates that Shri Sharma did not appear on

several occasions, more than half a dozen of the

dates, which were fixed for cross-examination on

behalf of the accused then the Court was left with no

option but to appoint a amicus curiae. The submission

of Shri Sharma that Advocate V.K. Anand was forced on
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the accused against his will is wholly untenable and

does not furnish any ground to review the judgment.

31. With regard to submission regarding torture by

police, it is sufficient to note that the trial court

interacted with the accused on many occasions and on

none of the occasions any complaint was made by

accused. The accused was in judicial custody. The

trial court in its proceeding dated 24.01.2013

recorded following:

“….I have also enquired from accused
Mukesh if he has any complaint with regard
to the manner in which he has been treated
in custody but he replied that he has no
complaint in this regard.”

The submission of Shri Sharma that statement of

accused recorded under Section 313 Cr.P.C. was under

pressure and influence of amicus curiae has no legs

to stand. The above argument is stated to be rejected

since the statement was recorded by the Court and the

accused was coming from judicial custody and could

not be tortured by the police as alleged. On the

affidavit filed in March 2013, the trial court had
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promptly called for a report and matter was not

further pursued by the trial court since no material

came to substantiate the plea.

32. This Court in its judgment dated 05.05.2017 has

held after marshalling evidence of PW.1 and other

evidences including scientific evidences that Mukesh

was driving the bus. The issue whether he had a

driving licence for driving the bus or not has no

relevance with regard to conviction recorded against

the accused which has been affirmed by the High court

and this Court as well.

33. This Court in its judgment has referred to

recoveries made from the petitioner in para No. 127.

Remand application was given by police after

conclusion of T.I.P. Recoveries made from petitioner

has been discussed and believed, we cannot permit the

petitioner to argue the said issues again.

34. Learned counsel for accused No.2-Mukesh contended

that accused No.2-Mukesh does not know driving as
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evidenced from his driving licence which shows that

the licence was only for Light Motor Vehicle (LMV)

and that he does not know how to drive a bus. Further

contention of accused No.2-Mukesh is that as per the

Call Details Record (CDR), he could not have been

present in the bus on 16.12.2012 at 08.55 p.m.

35. The argument that accused No.2-Mukesh does not

know driving has not been raised during the trial or

in evidence and also cross-examination of witnesses

by the accused. Upon consideration of the evidence of

PW-1 and other evidences including scientific

evidence, this Court has arrived at the conclusion

that accused no.2-Mukesh was driving the bus. Issue

whether accused No.2-Mukesh has a driving licence for

driving the bus or not has no relevance with regard

to conviction recorded against the accused which has

been affirmed by the High Court and this Court as

well.

36. There is no merit in the contention that accused

No.2-Mukesh could not have driven the bus and that he
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was not present in the bus at the time of the

incident. It is to be noted that in the questioning

under Section 313 Crl.P.C., accused No.2-Mukesh has

clearly admitted that he was driving the bus and this

has been elaborately referred to in para (302) of the

Judgment as under:-

“302. In his questioning under Section 313
Cr.PC, Mukesh, A-2, has admitted that he
and A-1, Ram Singh (since deceased), are
brothers. He has also admitted that on the
night of 16-12-2012, he was driving the bus
and that accused Pawan and Vinay Sharma
were seated on the backside of the driver’s
seat, whereas Akshay and Ram Singh were
sitting in the driver’s cabin. The relevant
portion of his statement under
Section 313
Cr.PC reads as under:

“Q.2. It is in evidence against you
that PW 1 further deposed that they
inquired from 4-5 autorickshaw-walas to
take them to Dwarka, but they all
refused. At about 9 p.m. they reached at
Munirka Bus-stand and found a white-
coloured bus on which “Yadav” was
written. A boy in the bus was calling
for commuters for Dwarka/Palam Mod. PW 1
noticed yellow and green lines/stripes
on the bus and that the entry gate of
the bus was ahead of its front tyre, as
in luxury buses and that the front tyre
was not having a wheel cover. What do
you have to say?

Ans.: I was driving the bus while my
brother Ram Singh, since deceased and
JCL, Raju was calling for passengers by
saying “Palam/Dwarka Mod”.

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Q.4.: It is in evidence against you that
during the course of his deposition,
complainant, PW 1 has identified you
accused Mukesh to be the person who was
sitting on the driver’s seat and was
driving the bus; PW 1 further identified
your co-accused Ram Singh (since
deceased), and Akshay Kumar to be the
person who were sitting in the driver’s
cabin along with the driver; PW 1 had
also identified your co-accused Pawan
Kumar who was sitting in front of him in
two seats row of the bus; PW 1 had also
identified your co-accused Vinay Sharma
to be the person who was sitting in
three seats row just behind the driver’s
cabin, when PW 1 entered the bus; PW 1
has also deposed before the court that
the conductor who was calling him and
his friend/prosecutrix to board the bus,
Ext. P-1 was not among the accused
person being tried in this court.

Ans.: Accused Pawan and accused Vinay
Sharma were sitting on my backside of
the driver’s seat and whereas accused
Akshay was sitting in the driver’s cabin
while my brother Ram Singh, since
deceased was asking for passengers.
Q.5.: It is in evidence against you that
after entering the bus PW 1 noticed that
seats cover of the bus were of red
colour and it had yellow-coloured
curtains and the windows of the bus had
black film on it. The windows were at
quite a height as in luxury buses. As PW
1 sat down inside the bus, he noticed
that two of you accused were sitting in
the driver’s cabin were coming and
returning to the driver’s cabin. PW 1
paid an amount of Rs 20 as bus fare to
the conductor i.e. Rs 10 per head. What
do you have to say?

25

Ans.: It is correct that the windows of
the bus, Ext. P-1 were having black film
on it but I cannot say if the seats of
the bus were having red covers or that
the curtains were of yellow colour as my
brother Ram Singh, since deceased, only
used to drive the bus daily and that on
that day since he was drunk heavily so I
had gone to Munirka to bring him to my
house and hence, I was driving the bus
on that day. I had gone to Munirka with
my nephew on my cycle to fetch Ram
Singh, since deceased, and that the
other boys along with Ram Singh had
already taken the bus from R.K. Puram. I
was called by Ram Singh on phone to come
at Munirka.”

37. The contention raised by Mr. Sharma is that

accused No.2-Mukesh was not present in the bus has

been considered in the judgment of this Court in more

than one place. Presence of accused No.2-Mukesh in

the bus has also been considered while considering

the presence of witness PW-82, Shri Ram Adhar in the

bus in para (298). As pointed out above, in his

questioning under Section 313 Crl.P.C., accused No.2-

Mukesh has admitted that he and accused No.1-Ram

Singh (since deceased) are brothers and on the night

of 16.12.2012, he (accused No.2-Mukesh) was driving

the bus and that accused-Pawan and accused-Vinay

Sharma were seated on the back side of the driver
26

seat whereas accused-Akshay was sitting in the

Driver’s cabin. Accused-Ram Singh and JCL, Raju were

calling for passengers by saying “Palam/Dwarka Mod”.

When there is such clear admission in the questioning

under Section 313 Cr.P.C, now the Petitioner-accused

No.2-Mukesh cannot raise the plea denying his

presence in the bus.

38. Another contention raised by accused No.2-Mukesh

is that he could not have been present in the bus on

16.12.2012 at 08.55 p.m. as seen from Call Details

Record (CDR) and that his phone number was giving the

location of Lajpat Nagar. This issue has been

elaborately argued and dealt with as overlapping of

signals in close proximity is common.

39. This Court had elaborately considered all the

three dying declarations. All the three dying

declarations having been relied by trial court, High

Court and this Court and all arguments attacking the

dying declarations having been considered and

rejected, in its judgment dated 05.05.2017, we are of

the view that the petitioner cannot be allowed to re-
27

agitate the same issues which were already considered

and expressly rejected by this Court.

40. The victim made three dying declarations:- (i)

statement recorded by PW-49 Dr. Rashmi Ahuja

immediately after the victim was admitted to the

hospital; (ii) Dying declaration (Ex.PW-27/A)

recorded by PW-27 SDM Usha Chaturvedi on 21.12.2012;

and (iii) dying declaration(Ex.PW-30/D) recorded by

PW-30 Pawan Kumar, Metropolitan Magistrate on

25.12.2012 at 1:00 p.m. by multiple choice questions

and recording answers by gestures and writing. In the

first dying declaration (Ex.PW-49/A), the prosecutrix

has stated that more than two men committed rape on

her, bit her on lips, cheeks and breast and also

subjected her to unnatural sex. In the second dying

declaration (Ex.PW-27/A) recorded by PW-27, the

victim has narrated the entire incident in great

detail, specifying the role of each accused, rape

committed by number of persons, insertion of iron rod

in her private parts, description of the bus, robbery

committed and throwing of both the victims out of the
28

moving bus in naked condition. On 25.12.2012 at 1:00

p.m., PW-30 Pawan Kumar, Metropolitan Magistrate

recorded the statement by putting multiple choice

questions to the victim and by getting answers

through gestures and writing. While making the

third declaration, the victim also tried to reveal

the names of the accused by writing in her own

handwriting viz. “Ram Singh, Mukesh, Vinay, Akshay,

Vipin, Raju”.

41. All the contentions raised regarding the three

dying declarations have been considered in detail in

paras (148) to (192) and paras (395) to (417).

Considering all the three dying declarations, in the

light of well-settled principles, this Court held

that all the three dying declarations are true,

voluntary and consistent. Insofar as third dying

declaration, this Court, in paras (408) to (412) held

that the dying declaration made through signs,

gestures or by nods are admissible as evidence and

that proper care was taken by PW-30 Pawan Kumar,

Metropolitan Magistrate and the third dying
29

declaration recorded by in response to the multiple-

choice questions by signs, gestures made by the

victim are admissible as evidence. In the third

dying declaration, the victim also wrote the names of

the accused persons “Ram Singh, Mukesh, Vinay,

Akshay, Vipin, Raju”. So far as the name of accused

Vipin written by the prosecutrix in the third dying

declaration has been elaborately considered by this

Court in paras (150) and (188) of the judgment.

42. This Court has examined the evidence of PW.1

extensively and have given ample reason for accepting

the said evidence as reliable. The petitioner cannot

be allowed to re-agitate the matter.

43. Yet another contention raised by Mr. Sharma is

that there were two different recoveries from accused

No.2-Mukesh during his detention only to falsely

implicate him and this has not been considered by

this Court. It is the further contention that the

remand report filed by the I.O. (Ext. PW-80/D2) was

not considered which implied that there was no
30

disclosure existed till 22.12.2012 and the

disclosures and recoveries shown are highly doubtful.

The arrest and recovery of accused No.2-Mukesh have

been referred to in paras (116), (117) and in the

tabular column in para (128) and the details of

arrest of all the accused and recovery of the

articles recovered from each of them are also further

referred to in detail in para (441). In the light of

various decisions, the scope of recoveries was

considered in paras (129) to (137) and paras (442) to

(452) and the arguments raised on behalf of accused

No.2-Mukesh were held to be untenable. The arguments

now advanced raising doubts about the arrest and

recovery of articles, in our considered view, make no

ground for reviewing the judgment.

44. Learned Counsel for accused No.2-Mukesh contended

that the illegal detention of Mukesh in

Karoli/Rajasthan on 17.12.2012 and failure to present

him before the nearest Magistrate was not considered

by this Court. As pointed out earlier, the details of

arrest of accused No.2-Mukesh have been referred to

in detail in para (116) of the judgment and the
31

various recoveries are referred to in paras (116),

(117), (127), (440) and (441) of the judgment.

Identification of Samsung Galaxy phone (recovered

from accused Mukesh) by PW-1 in the TIP proceedings

held on 20.12.2012 corroborates recovery of articles

from accused No.2-Mukesh (vide para (441)). Further,

the DNA profile generated from blood strained pants,

T-shirts and jackets recovered from accused No.2-

Mukesh matching with the DNA profile of the victim

corroborates the recoveries made from accused No.2-

Mukesh vide paras (231) and (454).

45. When the appeal was decided, all applications if

any pending shall stand closed and we do not find any

ground to review the judgment on this count,

especially when parties lead all the evidences which

were in their power.

46. We may observe that submissions which have been

raised by Shri Sharma before us in this review

petition are more or less the submissions which were
32

advanced at the time of hearing of the appeal and

this Court had already considered the relevant

submissions and dealt them in its judgment dated

05.05.2017. This court had cautiously gone into and

revisited the entire evidences on record and after

being fully satisfied had dismissed the appeal. By

the review petition the petitioner cannot be allowed

to re-argue the appeal on merits of the case by

pointing out certain evidences and materials which

were on the record and were already looked into by

the trial court, High court and this Court as well.

47. In review petition, the petitioner had tried to

raise the plea that he was not in the bus and he has

nothing to do with the incident. The factum of he

being involved in the offence having been gone into

by all courts and after marshalling the evidences, he

having been convicted and sentenced, it is not open

for the petitioner in the review petition to contend

that he had nothing to do with the incident.
33

48. We after having heard learned counsel for the

petitioner and learned senior counsel for the

respondent and having gone through the grounds taken

in the review petition, find that review petition

does not disclose any ground, on which review

jurisdiction can be exercised by this Court under

Article 137 read with Order XLVII Rule 1 of the

Supreme court Rules, 2013. Consequently, the review

petition is rejected.

…………………CJI.

( DIPAK MISRA )

…………………J.

( R.BANUMATHI )

…………………J.

( ASHOK BHUSHAN )
NEW DELHI,
JULY 09, 2018.

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