AKSHAY KUMAR SINGH versus STATE (NCT OF DELHI) on 18 December 2019

SUPREME COURT REPORTS

[2019] 15 S.C.R.

A

AKSHAY KUMAR SINGH

v.

STATE (NCT OF DELHI)

Review Petition (Criminal) D No. 44603 of 2019

B

In

(Criminal Appeal Nos. 609-610 of 2017)

DECEMBER 18, 2019

[R. BANUMATHI, ASHOK BHUSHAN ANDA. S. BOPANNA, JJ.]

C

Supreme Court Rules, 2013 – Or. XLVII, r.1 – Review in deathpenalty cases – Nirbhaya Case – Criminal appeal filed by thepetitioner-accused (cleaner of the bus) was dismissed by theSupreme Court vide judgment dated. 05.05.2017 in Mukesh andDanother v. State (NCT of Delhi) and Others reported as [2017] 6 SCR1 – Conviction and death penalty imposed upon the petitioner bythe trial court and the High Court was confirmed – Review petition– Held: Scope of review is limited – Review in the criminalproceedings is permissible only on the ground of error apparenton the face of the record – Review petition is not a rehearing ofEthe appeal over again – Grounds raised by the petitioner in thisreview petition are identical to those raised by the co-accused intheir review petitions which were considered and rejected bySupreme Court – Further, general contentions put forth against thecapital punishment cannot be gone into in this review petition – AFparty is not entitled to seek review of the judgment merely for thepurpose of rehearing of the appeal and a fresh decision –Considering the manner in which the offence was committed,Supreme Court in the judgment dated. 05.05.2017 held that thecase falls within “the rarest of rare cases”– In light of theaggravating circumstances and considering that the case fallsGwithin the category of “rarest of rare cases”, the death penalty isconfirmed – No error apparent on the face of the record in theappreciation of evidence or the findings of the judgment dated.05.05.2017 calling for review – Constitution of India – Arts.137,145 – Penal Code, 1860 – 120-B, 201, 302, 307, 365, 366,H376(2)(g), 377, 395, 397 and 412.

Constitution of India– Arts.137 and 145 – Power of SupremeCourt u/Art.137 – Held: Art.137 empowers the Supreme Court toreview any judgment pronounced or made, subject to the provisionsof any law made by the Parliament or any rule made u/Art.145.

Dismissing the review petition, the Court HELD: 1.1 Scope of review is limited and review cannotbe entertained except in cases of error apparent on the face ofthe record. Article 137 of the Constitution of India empowersthe Supreme Court to review any judgment pronounced or made,subject, of course, to the provisions of any law made by theParliament or any rule made under Article 145 of theConstitution of India. Order XLVII Rule 1 of Supreme CourtRules, 2013 dealing with review. Review is a not a rehearing ofthe appeal over again. In a review petition, it is not for the Courtto re-appreciate the evidence and reach a different conclusion.A review of the judgment is permitted only when it is shown thatjudgment suffers from error apparent on the face of the judgment.The grounds raised by the petitioner-accused in this reviewpetition are identical to that of the grounds raised by the co-accused in their review petitions. Those grounds urged by theco-accused in their review petitions were considered andrejected by this Court. [Paras 8, 10, 12 and 14] [348-F-G; 349- D-E; 350-H; 351-C-D]

P.N. Iswara Iyer and Ors. v. Registrar, Supreme Courtof India (1980) 4 SCC 680 – followed.

Sow Chandra Kante and Another v. Sheikh Habib(1975) 1 SCC 674 ; Kamlesh Verma v. Mayawati andOthers (2013) 8 SCC 320 : [2013] 11 SCR 25 ; VikramSingh alias Vicky Walia and Another v. State of Punjaband Another (2017) 8 SCC 518 : [2017] 8 SCR 177– relied on.

Mukesh and another v. State (NCT of Delhi) and others

(2017) 6 SCC 1 : [2017] 6 SCR 1 – referred to.

1.2 Two grounds raised by the petitioner in this reviewpetition are (i) futility of awarding death sentence in Kalyug,where a person is no better than a dead body; and (ii) that thelevel of pollution in Delhi NCR is so great that life is short A

B

CD

E

F

G

H

Aanyhow and everyone is aware of what is happening in DelhiNCR in this regard and while so, there is no reason why deathpenalty should be awarded. It is unfortunate that such groundshave been raised in the matter as serious as the present case.The grounds raised in the petition alleging improperinvestigation and manipulation of evidence are too general andBnot specific. Each and every point raised by the petitioner-accused assailing the course of investigation was well consideredby the trial court which had been gone through at the time ofhearing of the criminal appeals. The same points cannot be urgedagain and again. [Paras 15, 17] [351-E; 352-A-B]C

2. Dying declaration – There were three dying declarationsrecorded from the prosecutrix. This Court considered the threedying declarations and found that the multiple dying declarationsinspire the confidence of the Court and are credible. The pleaof alibi taken by the petitioner-accused and the evidenceDadduced by the petitioner was well-considered by this Court inParas (247) to (269). Upon appreciation of evidence, this Courtaffirmed the findings of the trial court and the High Courtrejecting the plea of alibi and held that plea of alibi taken by thepetitioner is an afterthought. The appreciation of evidence inErejecting the plea of alibi does not suffer from any error apparenton the face of the record and this cannot be urged as a groundfor review. Elaborate submissions were made on the alleged useof iron rod and the same was rejected by well-consideredreasonings in Paras (193) to (209) and (413) to (422) and thesaid findings thereon supported by the opinion of the medicalFexpert do not suffer from any error. The review petition is notfor re-hearing of the appeal on reappreciation of the evidenceover and over again. A party is not entitled to seek review ofthe judgment merely for the purpose of rehearing of the appealand a fresh decision. [Paras 22, 25-27] [353-F; 354-D; 355-D-F;G356-B]

3. Dismissal of the review petitions filed by the co-accused: The aggravating and mitigating circumstance and theaffidavit filed by the petitioner was considered in detail in Para(324). The contention urged by the counsel for the parties andHlearned amicus curiae were considered in paras (327) to (368)

AB

and (511) to (518) of the judgment and the court observed thatthe background and family circumstances cannot be taken as themitigating circumstances. Considering the manner in which theoffence was committed, in the judgment dated 05.05.2017, thisCourt held that the case is falling within “the rarest of rarecases”. It is not found that these findings suffer from any errorapparent on the face of the record. The mitigating circumstanceselaborated upon by the defence by way of highlighting thecomparatively young age of the convicts, their socio-economicbackground, their unblemished antecedents and their chancesof reformation, fade into insignificance. In light of the aggravatingcircumstances and considering that the case falls within thecategory of “rarest of rare cases”, the death penalty isconfirmed. No error apparent on the face of the record is foundin the appreciation of evidence or the findings of the judgmentdated 05.05.2017. None of the grounds raised in the reviewpetition call for review of the judgment dated 05.05.2017. Thereview petition is dismissed. [Paras 28-31] [356-D-G; 357-D]

C

D

Mukesh v. State (NCT of Delhi) (2018) 8 SCC 149 :[2018] 7 SCR 898 ; Vinay Sharma and another v. State(NCT of Delhi) and others (2018) 8 SCC 186 : [2018]7 SCR 919 – referred to.

E

G

CRIMINAL APPELLATE JURISDICTION : Review Petition(Criminal) Nos. 602-603 of 2019 In Criminal Appeal Nos. 609-610 of2017.

From the Judgment and Order dated 05.05.2017 passed inCriminal Appeal Nos. 609-610 of 2017.

H

A A.P. Singh, V.P. Singh, Ms. Geeta Chauhan, Ms. Richa Singh,Ms. Pratima Rani, Sadashiv, Advs. for the Appellant.

Tushar Mehta, SG, Kanu Agrawal, Ms. Swati Ghildiyal, AditKhorana, Manan Popli, Rajeev Ranjan, Varun Chugh, Bhuvan Kapoor,B.V. Balram Das, Chirag M.Shroff, Advs. for the Respondent.

BThe Judgment of the Court was delivered by

R. BANUMATHI, J.

1. This Review Petition has been preferred by the petitioner-accused Akshay Kumar Singh who was the cleaner of the bus to reviewCthe judgment dated 05.05.2017 passed by this Court in Criminal AppealNos.609-610 of 2017 in and by which this Court confirmed theconviction and death penalty imposed upon the petitioner by the trialcourt as well as by the High Court.

2. In the evening of 16.12.2012, the prosecutrix (since deceased)Dhad gone for a movie with her friend, PW-1. At about 08:45 pm, boththe prosecutrix and PW-1 left the movie theatre and reached Munirkabus stand and they boarded the bus bearing registration No. DL-1PC-0149. This bus was being driven by accused Ram Singh (sincedeceased) and the petitioner-Akshay Kumar Singh @ Thakur was thehelper thereof. The accused misbehaved with the prosecutrix and haveEcommitted gang rape of the prosecutrix in the moving bus. They alsocommitted unnatural offence and inserted iron rod in the private partsof the prosecutrix. The accused persons had beaten up PW-1 with ironrods and his clothes were torn off. The accused also took away all thebelongings of the prosecutrix and PW-1 and thereafter, threw theFprosecutrix and PW-1 in a naked/semi naked condition from the movingbus. The prosecutrix was treated at Safdarjung Hospital, Delhi whereher three dying declarations were recorded. Since the condition of theprosecutrix became critical, she was shifted for further treatment on27.12.2012 to Mt. Elizabeth Hospital, Singapore where, she died on29.12.2012.G

3. The trial court held that the complicity and guilt of the accusedwere proved and convicted the petitioner and other accused underSections 120-B IPC, 376 (2)(g) read with Section 120-B IPC, 377 readwith Section 120-B IPC, 365 and 366 read with Section 120-B IPC,395 read with Section 120-B IPC, 397 read with Section 120-B IPC,H302 read with Section 120-B IPC, 307 read with Section 120-B IPC, 412 and 201 read with Section 120-B IPC and inter alia imposed deathpenalty upon them. Death penalty and other sentence of imprisonmentimposed upon them was confirmed by the High Court. The accusedhad filed Criminal Appeal Nos.609-610 of 2017 before this Court.

4. Criminal appeal filed by the petitioner had earlier beendismissed by this Court vide its judgment dated 05.05.2017 in Mukeshand another v. State (NCT of Delhi) and others (2017) 6 SCC 1on the basis of the following evidence which firmly established thepresence of the petitioner at the scene of the incident and hisinvolvement in the commission of rape on the prosecutrix :-

(i) evidence of PW-1/injured eye-witness who spoke about theoccurrence in the bus; PW-1 identified the petitioner in theTIP conducted on 26.12.2012 as one of the persons whocame out of the driver’s cabin from the bus and startedabusing PW-1 and later, took the prosecutrix to the backside of the bus and raped her;

(ii) three dying declarations of the prosecutrix of which, in thesecond dying declaration (ExPW27/A), prosecutrix statedthe incident in detail and that the accused persons werecalling “Ram Singh, Thakur, Raju, Mukesh, Pawan andVinay and in the third dying declaration, the prosecutrixwrote the names of the accused “Ram Singh, Mukesh,Vinay, Akshay, Vipin, Raju” including petitioner-AkshayKumar Singh and other accused;

(iii) evidence of PW-81-Dinesh Yadav, owner of the bus inwhich he has stated that accused Ram Singh was thedriver and petitioner was the helper in the bus in whichthe incident occurred;

(iv) Ex.PW71/C, report of PW-71-Dr. Ashith B. Acharaya whoopined that one bite mark found on the prosecutrix couldhave been possibly caused by the petitioner; three otherbite marks were caused by accused Ram Singh;

(v) DNA evidence – DNA profile generated from the blood-stained jeans and banian of the petitioner recovered at thebehest of petitioner matched with the DNA profile of theprosecutrix; another set of DNA profile generated fromjeans pant of the petitioner matched with the DNA profile A

B

C

D

E

F

G

H

Aof PW-1 and DNA profile generated from breast swab ofthe victim which was found consistent with the DNAprofile of the blood of the petitioner;

(vi) recovery of metro card and silver ring of PW-1 recoveredat the behest of the petitioner and identified by PW-1.

B

5. We have heard Mr. A.P. Singh, learned counsel appearing forthe petitioner-accused No.3. We have also heard Mr. Tushar Mehta,learned Solicitor General appearing for NCT of Delhi assisted by Ms.Supriya Juneja, learned counsel.

6. The learned counsel Mr. A.P. Singh had taken us through theCvarious grounds urged in the review petition and prayed for review ofthe judgment. The learned Solicitor General Mr. Tushar Mehta submittedthat the evidence adduced by the prosecution and the defence plea hasbeen considered threadbare both by the trial court, High Court and alsoby this Court. The learned Solicitor General submitted that uponDappreciation of evidence, the High Court and the Supreme Court upheldthe findings as to the guilt of the accused and also the sentence. Thelearned Solicitor General also submitted that the very same groundswere raised in the review petition by the co-accused and the same wasdismissed by this Court vide judgments in Mukesh v. State (NCT ofDelhi) (2018) 8 SCC 149 and Vinay Sharma and another v. State E(NCT of Delhi) and others (2018) 8 SCC 186.

7. In this review petition, the petitioner prays for review of thejudgment dated 05.05.2017. In the review petition before us, thepetitioner has again sought to assail the merits of the prosecution caseand the findings rendered thereon which cannot be permitted.

F

8. It is no longer res integra that scope of review is limited andreview cannot be entertained except in cases of error apparent on theface of the record. Article 137 of the Constitution of India empowersthe Supreme Court to review any judgment pronounced or made,subject, of course, to the provisions of any law made by the ParliamentGor any rule made under Article 145 of the Constitution of India. OrderXLVII Rule 1 of Supreme Court Rules, 2013 dealing with review readsas follows:- “1. The Court may review its judgment or order, but noapplication for review will be entertained in a civil proceedingHexcept on the ground mentioned in Order 47 Rule 1 of the Code, and in a criminal proceeding except on the ground of an errorapparent on the face of the record.”

As per the Supreme Court Rules, review in the criminalproceedings is permissible only on the ground of error apparent on theface of the record.

9. The jurisdiction of this Court under Article 137 of theConstitution of India has been clearly stated in Sow Chandra Kanteand Another v. Sheikh Habib (1975) 1 SCC 674, wherein this Courtheld as under:-

“A review of a judgment is a serious step and reluctant resort toit is proper only where a glaring omission or patent mistake orlike grave error has crept in earlier by judicial fallibility. A mererepetition through different counsel of old and overruledarguments, a second trip over ineffectually covered ground orminor mistakes of inconsequential import are obviouslyinsufficient.”

10. Review is a not a rehearing of the appeal over again. In areview petition, it is not for the Court to re-appreciate the evidence andreach a different conclusion. The scope of review jurisdiction has beenelaborately considered by this Court in number of cases and the wellsettled principles have been reiterated time and again. In Kamlesh Vermav. Mayawati and Others (2013) 8 SCC 320, the Supreme Court heldas under:- “17. In a review petition, it is not open to the Court toreappreciate the evidence and reach a different conclusion, evenif that is possible. Conclusion arrived at on appreciation ofevidence cannot be assailed in a review petition unless it is shownthat there is an error apparent on the face of the record or forsome reason akin thereto. This Court in Kerala SEB v. HitechElectrothermics & Hydropower Ltd. (2005) 6 SCC 654 heldas under: (SCC p. 656, para 10)

“10. … In a review petition it is not open to this Court toreappreciate the evidence and reach a different conclusion, evenif that is possible. The learned counsel for the Board at bestsought to impress us that the correspondence exchanged betweenthe parties did not support the conclusion reached by this Court.We are afraid such a submission cannot be permitted to be A

B

C

D

E

F

G

H

A

Aadvanced in a review petition. The appreciation of evidence onrecord is fully within the domain of the appellate court. If onappreciation of the evidence produced, the court records a findingof fact and reaches a conclusion, that conclusion cannot beassailed in a review petition unless it is shown that there is anerror apparent on the face of the record or for some reason akinBthereto. It has not been contended before us that there is anyerror apparent on the face of the record. To permit the reviewpetitioner to argue on a question of appreciation of evidencewould amount to converting a review petition into an appeal indisguise.”

C

11. Considering the scope of review under Article 137 of theConstitution of India and observing that normally in a criminalproceeding, review applications cannot be entertained except on theground of error apparent on the face of the record, in Vikram Singhalias Vicky Walia and Another v. State of Punjab and AnotherD(2017) 8 SCC 518, the Supreme Court held as under:-

“23. In view of the above, it is clear that scope, ambit andparameters of review jurisdiction are well defined. Normally ina criminal proceeding, review applications cannot be entertainedexcept on the ground of error apparent on the face of the record.EFurther, the power given to this Court under Article 137 is widerand in an appropriate case can be exercised to mitigate a manifestinjustice. By review application an applicant cannot be allowedto reargue the appeal on the grounds which were urged at thetime of the hearing of the criminal appeal. Even if the applicantsucceeds in establishing that there may be another view possibleFon the conviction or sentence of the accused that is not asufficient ground for review. This Court shall exercise itsjurisdiction to review only when a glaring omission or patentmistake has crept in the earlier decision due to judicial fallibility.There has to be an error apparent on the face of the recordGleading to miscarriage of justice to exercise the review jurisdictionunder Article 137 read with Order 40 Rule 1. There has to be amaterial error manifest on the face of the record with results inthe miscarriage of justice.”

12. A review of the judgment is permitted only when it is shownHthat judgment suffers from error apparent on the face of the judgment.

In P.N Iswara Iyer and Others v. Registrar, Supreme Court of India(1980) 4 SCC 680, while considering Order XL Rule 1 of the SupremeCourt Rules, 1996, the Constitution Bench of the Supreme Courtobserved that Order XL Rule 1 affords the wider set of grounds forreview of orders in civil proceedings, but limits the grounds vis-à-viscriminal proceedings to errors apparent on the face of the judgment.

13. Applying the above parameters of the review jurisdiction, itis to be seen whether the petitioner has made out any ground indicatingerror apparent on the face of the record warranting review of ourjudgment dated 05.05.2017.

14. Even at the outset, it is to be pointed out that the groundsraised by the petitioner-accused in this review petition are identical tothat of the grounds raised by the co-accused in their review petitions.Those grounds urged by the co-accused in their review petitions wereconsidered and rejected by this Court in Mukesh v. State (NCT ofDelhi) (2018) 8 SCC 149 and Vinay Sharma and another v. State(NCT of Delhi) and others (2018) 8 SCC 186.

15. At this juncture, we would like to point out two grounds raisedby the petitioner in this review petition viz., (i) futility of awarding deathsentence in Kalyug, where a person is no better than a dead body;and (ii) that the level of pollution in Delhi NCR is so great that life isshort anyhow and everyone is aware of what is happening in Delhi NCRin this regard and while so, there is no reason why death penalty shouldbe awarded. According to the petitioner, in view of the above, he shouldbe spared of the death sentence. We find it unfortunate that suchgrounds have been raised in the matter as serious as the present case.

16. The petitioner has also raised the plea that death penalty isthe ultimate denial of human rights and that it violates the right to life;it also goes against the principle of non-violence. In the review petition,the petitioner has put forth the general case against the capitalpunishment by stating that only the poor and downtrodden are morelikely to be sentenced with death sentence. Such general contentionsput forth against the capital punishment cannot be gone into in thisreview petition.

17. The petitioner has raised the plea as to the lack of professionalskills of the investigating agency and the need for an unbiasedinvestigation. In the petition, general allegations have been made A

B

C

D

E

F

G

H

Aagainst the investigating agency alleging extortion of confession and thencreate evidence to falsely implicate the accused. The grounds raisedin the petition alleging improper investigation and manipulation ofevidence are too general and not specific. It is to be pointed out thateach and every point raised by the petitioner-accused assailing thecourse of investigation was well considered by the trial court whichBwe have gone through at the time of hearing of the criminal appeals.The same points cannot be urged again and again.

18. So far as the dying declaration is concerned, thepetitioner has raised the same contention which was raised earlier thatis, according to the petitioner, only the first dying declaration (Ex.PW49/CA) recorded by PW-49-Dr. Rashmi Ahuja where the prosecutrix hasneither named nor mentioned the name of any of the accused persons,has to be relied upon. Contention of the petitioner is that the seconddying declaration (Ex.PW27/A) recorded by PW-24-Dr. UshaChaturvedi, SDM on 21.12.2012 could not have been recorded as theDvictim was under the life support and she could not have given fourpages of dying declaration. Further contention of the petitioner is thatthe third dying declaration recorded by PW-30-Pawan Kumar,Metropolitan Magistrate where the victim has named the petitioner andother accused was a tutored version and cannot be relied upon.

E19. Mr. A.P. Singh, learned counsel appearing for the petitioner-accused has contended that investigation in the present case is flawedand unreliable. It was submitted that insofar as the recording of thestatement of witnesses under Section 161 Cr.P.C., manner of arrest ofthe accused, conduct of test identification parade are doubtful. Variouscontentions assailing the course of investigation have been raised bothFbefore the trial court as well as before the High Court and this Courtwhich have been considered threadbare and were rejected. We donot find any merit in the contention of the learned counsel for thepetitioner assailing the investigation.

20. The learned counsel submitted that because of the mediaGpressure, the petitioner and other accused have been falsely implicated.Taking us through the averments made in para 3(f) of the reviewpetition, the learned counsel submitted that PW-1-Awninder Pratap Singhhad taken heavy amount as bribe and this has been highlighted in someof the news channels which affect the credibility of the evidence ofHPW-1. It was submitted that in this regard, Heera Lal Gupta, father of co-accused Pawan Gupta had filed a complaint vide Diary No.26Aon 02.11.2019 before SHO, PS R.K. Puram, Sector-12, New Delhi andalso before Deputy Commissioner of Police, Vasant Vihar. Theaverments made in para 3(f) of the review petition are subsequentevents unsupported by any material. In a criminal case, culpability orotherwise of the accused are based upon appreciation of evidenceadduced by the prosecution and also the evidence adduced by thedefence. The materials or the news emerging in the media and pressas also the news channels cannot be taken note of in arriving at aconclusion on the culpability of the accused or to test credibility of thewitness. Such events cannot be urged as a ground for review.

21. The learned counsel appearing for the petitioner-accused hastaken us through the averments made in para 3(g) of the review petitionand also the clippings of book titled “Black Warrant” written by SunilGupta, a former law officer of Central Jail, Tihar, Delhi who servedlong time in Tihar jail. The learned counsel submitted that in the bookwritten by the above officer, the officer has expressed his opinion thatRam Singh, accused No.1 was murdered in Tihar jail on 11.03.2013.Here again, the opinion of the said former law officer Sunil Gupta isonly his opinion which is not supported by any material. If the formerlaw officer had any doubt regarding death of Ram Singh, the said officercould have offered himself to appear as a defence witness or he could have filed an affidavit before any of the courts, either trial court or HighCourt or before the Supreme Court. The opinion of the said officerSunil Gupta which is not supported by any material, cannot be a groundfor reviewing our judgment.

22. As pointed out in the judgment, there were three dyingdeclarations recorded from the prosecutrix:-

(i) in the first dying declaration (Ex.PW-49/A) recorded byDr. Rashmi Ahuja (PW-49) on 16.12.2012 at 11.15 pm, theprosecutrix has stated that more than two men committedrape on her after which, she does not remember the sexualintercourse; the prosecutrix also stated that she wassubjected to unnatural sex and she was bitten over her lips,cheeks and breast;

(ii) in the second dying declaration (Ex.PW-27/A) recorded byPW-27-Usha Chaturvedi, SDM on 21.12.2012 at 09.00 pm,the prosecutrix has narrated the entire incident in great AB

C

D

E

F

G

H

A

detail, specifying the role of each of the accused, rapecommitted by number of persons, insertion of iron rod inher private parts, description of the bus, robbery committedand throwing of both the victims out of the moving bus innaked condition. Prosecutrix also stated that the accusedwere calling each other “Ram Singh, Thakur, Raju,Mukesh, Pawan and Vinay”; and B

(iii) in the third dying declaration (Ex.PW-30/D) recorded on25.12.2012 at 1.00 p.m by PW-30-Pawan Kumar,Metropolitan Magistrate by putting multiple choicequestions to the victim and getting answers by gestures andwriting. While giving third dying declaration, prosecutrixrevealed the names of the accused by writing in her ownhandwriting viz. “Ram Singh, Mukesh, Vinay, Akshay, Vipin,Raju”.

C

This Court considered the three dying declarations in the light ofthe well-settled principles and found that the multiple dying declarationsinspire the confidence of the Court and are credible. The abovecontentions were earlier raised and were considered by this Court inparas (148) to (164), (186) to (192) and (395) to (417) of the judgmentand rejected. While so, the petitioner cannot raise the same plea.

D

E

23. So far as the plea of alibi, contention of the petitioner is thathe was not present in Delhi on the night of 16.12.2012 and that heaccompanied his sister-in-law Sarita Devi (DW-15) along with her sonKundan. He boarded Mahabodhi Express on 15.12.2012 and left forAurangabad, Bihar from Platform No.9, New Delhi Railway Station.FContention of the petitioner that the evidence adduced by the petitionerto prove his presence in the Karmalahang, P.S. Thandva, District-Aurangabad, that is the evidence of DW-1, local auto driver, DW-12-Sarju Singh who has spoken about the petitioner reaching his house inhis native village on 16.12.2012 and DW-13-Rajmohan, father-in-lawof petitioner and DW-14-Punita Devi, wife of petitioner who haveGdeposed that the petitioner came to their house in the native villageKarmalahang along with Sarita Devi (DW-15), would show that thepetitioner was not present in Delhi on the night of 16.12.2012. It wassubmitted that though the defence has showed booked ticket details ofMahabodhi Express from New Delhi to Aurangabad on 15.12.2012 toHprove the departure of the petitioner, this aspect was not appreciated

by the court and the petitioner’s plea of alibi was erroneously turneddown.

24. To substantiate the plea of alibi, the petitioner has examinedDW-11-Chavinder, Auto Driver who has taken the petitioner and hisfamily members from Anugrah Narayan Railway Station, District-Aurangabad, Bihar to his native village, Karmalahang. DW-12-SarjuSingh, DW-13-Rajmohan, father-in-law of petitioner and DW-14-wifeof the petitioner have spoken about the presence of petitioner in thevillage. DW-15-Sister-in-law of petitioner whom the petitioner claimshad accompanied her on 15.12.2012. Considering the evidence of DWs12, 14 and 15 in Para (256), this Court has observed that DWs 12, 14and 15 are all relatives of accused Akshay Kumar Singh alias Thakurand that as observed by both the courts, they tried to wriggle thepetitioner out of the messy situation as is the natural instinct of thefamily members.

25. The plea of alibi taken by the petitioner-accused and theevidence adduced by the petitioner has been well-considered by thisCourt in Paras (247) to (269). Upon appreciation of evidence, thisCourt affirmed the findings of the trial court and the High Court rejectingthe plea of alibi and held that plea of alibi taken by the petitioner isan afterthought. We do not find any error apparent on the face of therecord in consideration of evidence and rejection of the plea of alibi.The appreciation of evidence in rejecting the plea of alibi does not sufferfrom any error apparent on the face of the record and this cannot beurged as a ground for review.

26. The next contention urged by the petitioner is the use of ironrod and absence of injury to the uterus on the alleged insertion of theiron rod in the private parts of the victim. Elaborate submissions weremade on the alleged use of iron rod and the same was rejected by well-considered reasonings in Paras (193) to (209) and (413) to (422) andthe said findings thereon supported by the opinion of the medical expertdo not suffer from any error.

27. The other contentions viz. (i) CCTV footage of Hotel DelhiAirport was not properly examined; (ii) the bus bearing registrationNo.DL-1PC-0149 was falsely implicated; (iii) PW-81-owner of the buswas in judicial custody for six months before his examination in the courtand he was so detained in custody only to bring pressure upon him todepose in favour of the prosecution; and (iv) the petitioner-accused was A

B

C

DE

F

G

H

Aphotographed earlier and the same was shown to PW-1 to enable himto identify the petitioner-accused in the test identification parade. Thesecontentions and other contentions assailing the case of the prosecutionwere all raised earlier and upon consideration of evidence, the samewere rejected by this Court. The review petition is not for re-hearingof the appeal on reappreciation of the evidence over and over again.BA party is not entitled to seek review of the judgment merely for thepurpose of rehearing of the appeal and a fresh decision.

28. On the question of award of death sentence, the Court hasconsidered the aggravating and mitigating circumstances. In Paras (322)to (368) and (511) to (518) of the judgment, while considering theCquestion of death sentence, opportunity was granted to the petitioneraccused and also other accused to file their affidavits as to their familybackground, criminal antecedents, possibility of reformation and suchother relevant factors. The petitioner accused through his counsel, Mr.A.P. Singh has filed an affidavit stating his family background and statingDthat he has no criminal antecedent and that his case is not falling under“the rarest of rare cases” to affirm the death sentence, which contentionwas considered and rejected. The aggravating and mitigatingcircumstance and the affidavit filed by the petitioner was consideredin detail in Para (324). The contention urged by the counsel for theEparties and learned amicus curiae were considered in paras (327) to(368) and (511) to (518) of the judgment and the court observed thatthe background and family circumstances cannot be taken as themitigating circumstances. Considering the manner in which the offencewas committed, in the judgment dated 05.05.2017, this Court held thatthe case is falling within “the rarest of rare cases”. We do not findFthat these findings suffer from any error apparent on the face of therecord. The mitigating circumstances elaborated upon by the defenceby way of highlighting the comparatively young age of the convicts,their socio-economic background, their unblemished antecedents andtheir chances of reformation, fade into insignificance. In light of theGaggravating circumstances and considering that the case falls withinthe category of “rarest of rare cases”, the death penalty is confirmed.

29. Insofar as the submission of learned counsel for the petitioner-accused that the death penalty has been abolished in UK and severalother Latin American countries and Australian States, the sameHcontentions were raised by Mr. A.P. Singh in the earlier review petitions and the same were dismissed. [vide Mukesh v. State (NCT of Delhi)(2018) 8 SCC 149 and Vinay Sharma and another v. State (NCTof Delhi) and others (2018) 8 SCC 186]

30. Dismissal of the review petitions filed by the co-accused: The review petition filed by the co-accused were dismissedas having no merit, on 09.07.2018 Mukesh v. State (NCT of Delhi)(2018) 8 SCC 149. The court observed that the submissions urgedby the other accused were already considered while delivering thejudgment and were rejected. The same points were earlier raised inthe review petitions filed by other co-accused. The grounds raised inthe present review petition are almost repetition of the arguments raisedin the earlier review petitions which were rejected and in our view, cannot be raised again and again.

31. We do not find any error apparent on the face of the recordin the appreciation of evidence or the findings of the judgment dated05.05.2017. None of the grounds raised in the review petition call forreview of the judgment dated 05.05.2017. The review petition isdismissed.

Divya Pandey

Review petition dismissed.

A

B

C

D

E

F

G

H