MUKESH versus STATE OF NCT OF DELHI on 9 July 2018

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[2018] 7 S.C.R.

MUKESH

v.

STATE OF NCT OF DELHI

(Review Petition (Crl.) No. 570 of 2017)

In

(Criminal Appeal No. 607 of 2017)

JULY 09, 2018

[DIPAK MISRA, CJI, R. BANUMATHI ANDASHOK BHUSHAN, JJ.]

Review – Nirbhaya Case – Gang rape and murder of a youngwoman – All four accused convicted and sentenced to death by thetrial Court – Death penalty confirmed by the High Court – Appealsdismissed by the Supreme Court – Review petition filed by onepetitioner-accused – Held: In instant case, review petition does notdisclose any ground, on which review jurisdiction can be exercisedby the Supreme Court u/Art.137 r/w. Or.XLVII, r.1 of the Rules –Submissions raised by the petitioner were more or less same as itwas advanced at the time of hearing of the appeal and SupremeCourt had already considered the relevant submissions and dealtwith them in its Judgment – By review petition the petitioner cannotbe allowed to re-argue the appeal on merits of the case by pointingout certain evidences and materials which were on record and werealready looked into by the trial Court, High Court and SupremeCourt as well – Constitution of India – Art.137 – Supreme CourtRules, 2013 – Or. XLVII, r.1.

Review – Power of the Supreme Court – Held: The power ofreview of the Supreme Court as envisaged u/Art.137 of theConstitution is no doubt wider than review jurisdiction conferredby other statutes on the Court – Art.137 empowers the SupremeCourt to review any judgment pronounced or made, subject, ofcourse, to the provisions of any law made by the Parliament or anyrule made u/Art.145 of the Constitution – Constitution of India –Arts.137 and 145.

Rejecting the Review Petition, the Court HELD: 1. The power of review of the Supreme Court asenvisaged under Article 137 of the Constitution is no doubt widerthan review jurisdiction conferred by other statutes on the Court.Article 137 empowers the Supreme Court to review any judgmentpronounced or made, subject, of course, to the provisions of anylaw made by Parliament or any rule made under Article 145 ofthe Constitution. [Para 5][903-C-D]

2. An application to review a judgment is not to be lightlyentertained and this Court could exercise its review jurisdictiononly when grounds are made out as provided in Order XLVIIRule 1 of the Supreme Court Rules, 2013 framed under Article145 of the Constitution of India. As per rule, review in a criminalproceeding is permissible only on the ground of error apparenton the face of the record. [Paras 6, 7][903-E, G]

3. In review petition, petitioner submitted that policearrested accused-petitioner from Karoli, the State of Rajasthanon 17.12.2012 in the morning and he was shown to be arrested inthe evening of 18.12.2012 at Safdarjung Hospital in Delhi. TheHigh Court has dealt with this submission and has noticed thatpetitioner in his statement under Section 313 Cr.P.C. in an answerof question No.132 claimed that he was not apprehended at hisvillage Karoli, Rajasthan but was apprehended at Ravidass Campin Delhi. Police have shown a formal arrest on 18.12.2012 andthis Court vide its judgment dated 05.05.2017 has also noticedthe fact that accused was formally arrested at Safdarjung Hospitalon 18.12.2012 at 6.30 p.m. at Safdarjung Hospital, in the evening.This submission does not make out any ground to hold thatconviction and trial of the accused is vitiated in any manner so asto call for review of the judgment dated 05.05.2017. There is noapparent error in the Judgment dated 05.05.2017. [Paras 14,29][908-G-H; 911-A-C]

4. Petitioner further contended that the illegal detention ofPetitioner-accused in Karoli/Rajasthan on 17.12.2012 and failureto present him before the nearest Magistrate was not consideredby this Court. The details of arrest of accused No.2-petitionerhave been referred to in detail in the judgment dated 05.05.2017

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Aand the various recoveries are also referred therein. [Para44][917-B-C]

5. The argument that accused No.2-Petitioner does notknow driving has not been raised during the trial or in evidenceand also cross-examination of witnesses by the accused. UponBconsideration of the evidence of PW-1 and other evidencesincluding scientific evidence, this Court has arrived at theconclusion that accused no.2-Petitioner was driving the bus. Issuewhether accused No.2- Petitioner has a driving licence for drivingthe bus or not has no relevance with regard to conviction recordedagainst the accused which has been affirmed by the High CourtCand this Court as well. [Para 35][913-A-C]

6. Petitioner has attacked the dying declarations of thevictim. This Court had elaborately considered all the three dyingdeclarations of the victims. All the three dying declarations havingbeen relied by trial court, High Court and this Court and allDarguments attacking the dying declarations having beenconsidered and rejected, in its judgment dated 05.05.2017, thepetitioner cannot be allowed to re-agitate the same issues whichwere already considered and expressly rejected by this Court.[Para 39][915-E-F]

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7. Petitioner has attacked the evidence of P.W.1 and triedto point out certain contradictions and errors. This Court hasexamined the evidence of PW.1 extensively and have given amplereason for accepting the said evidence as reliable. The petitionercannot be allowed to re-agitate the matter. [Paras 21, 42][909-F;F916-F]

8. Another contention raised by petitioner is that therewere two different recoveries from accused No.2-petitioner duringhis detention only to falsely implicate him and this has not beenconsidered by this Court. The arrest and recovery of accusedNo.2-petitioner have been referred and the details of arrest of allGthe accused and recovery of the articles recovered from each ofthem are also further referred to in judgment. In the light of variousdecisions, the scope of recoveries was considered and thearguments raised on behalf of accused No.2-petitioner were heldto be untenable. The arguments now advanced raising doubts H

about the arrest and recovery of articles, make no ground forreviewing the judgment dated 05.05.2017. [Para 43][916-F-H;917-A-B]

9. The submissions which have been raised by Petitionerin this review petition are more or less the submissions whichwere advanced at the time of hearing of the appeal and this Courthad already considered the relevant submissions and dealt themin its judgment dated 05.05.2017. This court had cautiously goneinto and revisited the entire evidences on record and after beingfully satisfied had dismissed the appeal. By the review petitionthe petitioner cannot be allowed to re-argue the appeal on meritsof the case by pointing out certain evidences and materials whichwere on the record and were already looked into by the trial court,High court and this Court as well. [Para 46][917-E-G]

10. In review petition, the petitioner had tried to raise theplea that he was not in the bus and he has nothing to do with theincident. The factum of he being involved in the offence havingbeen gone into by all courts and after marshalling the evidences,he having been convicted and sentenced, it is not open for thepetitioner in the review petition to contend that he had nothingto do with the incident. [Para 47][917-G-H; 918-A]

Kamlesh Verma v. Mayawati and others (2013) 8 SCC320 : [2013] 11 SCR 25; Vikram Singh alias Vicky Waliaand another v. State of Punjab and another (2017) 8SCC 518 – relied on.

Sow Chandra Kante and another v. Sheikh Habib(1975) 1 SCC 674; P.N. Eswara Iyer and others v.Registrar, Supreme Court of India (1980) 4 SCC 680 :[1980] 2 SCR 889; Devender Pal Singh v. State, NCTof Delhi (2003) 2 SCC 501 : [2002] 5 Suppl. SCR 332;Suthendraraja alias Suthenthira Raja alias Santhan andOthers v. State through Superintendent of Police CBI(1999) 9 SCC 323 : [1999] 3 Suppl. SCR 540; Prabhuv. Emperor AIR 1944 PC 73 – referred to.

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BCRIMINAL APPELLATE JURISDICTION: Review Petition(Criminal) No. 570 of 2017 in Criminal Appeal No. 607 of 2007.

From the Judgment and Order dated 13.03.2014 of the High Courtof Delhi at New Delhi in Criminal Appeal No. 1398 of 2013 and DeathReference No. 6 of 2013.C

Sidharth Luthra, Sr. Adv., Manohar Lal Sharma, Ms. Suman, NitinKumar Thakur, A. P. Singh, Vir Pal Singh, Ms. Geeta Singh Chauhan,Ms. Pratima Ravi, Ms. Richa Singh, Ms. Supriya Juneja, Ms. ShraddhaKarol, Sameer Chaudhary, Ms. Drishti Harpalani, Arjun Vinod Bobde,Ms. Richa Relhan, Ms. Surabhi Sardana, Advs. for the appearing parties.

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The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. The petitioner by this review petitionfiled under Article 137 of the Constitution of India prays to review thefinal judgment dated 05.05.2017 passed by this Court by which CriminalAppeal No. 607 of 2017 has been dismissed. The horrific incident whichEtook place on 16.12.2012 in Delhi wherein a young lady of twenty threeyears (Nirbhaya, a changed name) was gang raped and brutally injuredwho subsequently died, in which the petitioner was one of the accused.The petitioner was convicted and awarded death sentence by AdditionalSessions Judge (Special Fast Track Court) Saket Court Complex NewFDelhi. Delhi High Court confirmed the death reference and dismissedthe criminal appeal filed by the petitioner challenging his conviction andsentence.

2. Aggrieved against the judgment of the Delhi High Court dated13.03.2014, Criminal Appeal No. 607 of 2017 was filed by the petitionerGwhich appeal was dismissed by this Court on 05.05.2017. Now, thisapplication is filed to review the judgment dated 05.05.2017 dismissingthe Criminal Appeal of the petitioner.

3. Before we enter into the submissions raised in this reviewpetition, it is useful to recapitulate the scope and grounds available forHexercise of jurisdiction by this Court under Article 137. Order XLVII

Rule 1 of the Supreme Court Rules, 2013 dealing with review is asfollows:

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

4. In various decisions, this Court has already settled the law withregards to the maintainability of review petition under Article 137 of theConstitution of India read with Order XL Rule 1 of Supreme Court Rules,1966 in criminal appeals. Before we consider the points raised by theaccused, we may usefully refer to some of the decisions.

5. The power of review of the Supreme Court as envisaged underArticle 137 of the Constitution is no doubt wider than review jurisdictionconferred by other statutes on the Court. Article 137 empowers theSupreme Court to review any judgment pronounced or made, subject, ofcourse, to the provisions of any law made by Parliament or any rulemade under Article 145 of the Constitution.

6. An application to review a judgment is not to be lightlyentertained and this Court could exercise its review jurisdiction only whengrounds are made out as provided in Order XLVII Rule 1 of the SupremeCourt 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 reviewhas stated the following in para 10:

“10. A review of a judgment is a serious step and reluctant resortto it 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.”

7. As per rule, review in a criminal proceeding is permissible onlyon the ground of error apparent on the face of the record. This Court inP.N. Eswara Iyer and others v. Registrar, Supreme Court of India,(1980) 4 SCC 680 while examining the review jurisdiction of this Court A

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Avis a vis criminal and civil proceedings had made the followingobservations in paras 34 and 35:

“34. The rule, on its face, affords a wider set of grounds for reviewfor orders in civil proceedings, but limits the ground vis-a-viscriminal proceedings to “errors apparent on the face of therecord”. If at all, the concern of the law to avoid judicial errorshould be heightened when life or liberty is in peril since civilpenalties are often less traumatic. So, it is reasonable to assumethat the framers of the rules could not have intended a restrictivereview over criminal orders or judgments. It is likely to be theother way about. Supposing an accused is sentenced to death bythe Supreme Court and the “deceased” shows up in court and thecourt discovers the tragic treachery of the recorded testimony. Isthe court helpless to review and set aside the sentence of hanging?We think not. The power to review is in Article 137 and it isequally wide in all proceedings. The rule merely canalises theflow from the reservoir of power. The stream cannot stifle thesource. Moreover, the dynamics of interpretation depend on thedemand 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 justicesummons the Judges to allow a vital material in, it becomes partof the record; and if apparent error is there, correction becomesnecessitous.

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35. The purpose is plain, the language is elastic and interpretationof a necessary power must naturally be expansive. The substantivepower is derived from Article 137 and is as wide for criminal asfor civil proceedings. Even the difference in phraseology in therule (Order 40 Rule 2) must, therefore, be read to encompass thesame area and not to engraft an artificial divergence productiveof anomaly. If the expression “record” is read to mean, in itssemantic sweep, any material even later brought on record, withthe leave of the court, it will embrace subsequent events, newlight and other grounds which we find in Order 47 Rule 1, CPC.We see no insuperable difficulty in equating the area in civil andcriminal proceedings when review power is invoked from the samesource.”

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8. In Devender Pal Singh v. State, NCT of Delhi, (2003) 2SCC 501, it was held that review is not rehearing of the appeal all overagain. The review is not an appeal in disguise. In Suthendraraja aliasSuthenthira Raja alias Santhan and Others vs. State throughSuperintendent of Police, CBI, (1999) 9 SCC 323, it was held asunder:- “5. It would be seen that the scope of review in criminalproceedings has been considerably widened by the pronouncementin the aforesaid judgment. In any case review is not rehearing ofthe appeal all over again and to maintain a review petition it has tobe shown that there has been a miscarriage of justice. Of course,the expression “miscarriage of justice” is all-embracing…”

9. The scope of review jurisdiction has been considered by thisCourt in a number of cases and the well settled principles have beenreiterated time and again. It is sufficient to refer to judgment of thisCourt in Kamlesh Verma vs. Mayawati and others (2013) 8 SCC320, 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 reappreciatethe evidence and reach a different conclusion, even if that ispossible. Conclusion arrived at on appreciation of evidence cannotbe assailed in a review petition unless it is shown that there is anerror apparent on the face of the record or for some reason akinthereto. 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 toreappreciate the evidence and reach a different conclusion,even if that is possible. The learned counsel for the Board atbest sought to impress us that the correspondence exchangedbetween the parties did not support the conclusion reached bythis Court. We are afraid such a submission cannot be permittedto be advanced in a review petition. The appreciation ofevidence on record is fully within the domain of the appellatecourt. If on appreciation of the evidence produced, the courtrecords a finding of fact and reaches a conclusion, thatconclusion cannot be assailed in a review petition unless it isshown that there is an error apparent on the face of the recordor for some reason akin thereto. It has not been contended A

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before us that there is any error apparent on the face of therecord. To permit the review petitioner to argue on a questionof appreciation of evidence would amount to converting areview petition into an appeal in disguise.”

18. Review is not rehearing of an original matter. The power ofBreview cannot be confused with appellate power which enables asuperior court to correct all errors committed by a subordinatecourt. A repetition of old and overruled argument is not enough toreopen concluded adjudications. This Court in Jain Studios Ltd.v. Shin Satellite Public Co. Ltd., held as under: (SCC pp. 504-505, paras 11-12)C

“11. So far as the grievance of the applicant on merits isconcerned, the learned counsel for the opponent is right insubmitting that virtually the applicant seeks the same reliefwhich had been sought at the time of arguing the main matterand had been negatived. Once such a prayer had been refused,Dno review petition would lie which would convert rehearing ofthe original matter. It is settled law that the power of reviewcannot be confused with appellate power which enables asuperior court to correct all errors committed by a subordinatecourt. It is not rehearing of an original matter. A repetition ofEold and overruled argument is not enough to reopen concludedadjudications. The power of review can be exercised withextreme care, caution and circumspection and only inexceptional cases.

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

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

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

(iii) Any other sufficient reason.

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The words “any other sufficient reason” have been interpreted inChhajju Ram v. Neki and approved by this Court in Moran MarBasselios Catholicos v. Most Rev. Mar Poulose Athanasius tomean “a reason sufficient on grounds at least analogous to thosespecified in the rule”. The same principles have been reiterated inBUnion 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 toreopen concluded adjudications.

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(ii) Minor mistakes of inconsequential import.

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

(iv) Review is not maintainable unless the material error, manifeston the face of the order, undermines its soundness or results inDmiscarriage of justice.

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

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

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

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

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

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10. This Very Bench speaking through one of us (Justice AshokBhushan) had occasion to consider the ambit and scope of the reviewpetition in a criminal proceeding in Vikram Singh alias Vicky Waliaand another vs. State of Punjab and another (2017) 8 SCC 518. Inpara 23 of the judgement following has been stated:

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A“23. In view of the above, it is clear that scope, ambit andparameters of review jurisdiction are well defined. Normally in acriminal proceeding, review applications cannot be entertainedexcept on the ground of error apparent on the face of the record.Further, the power given to this Court under Article 137 is widerand in an appropriate case can be exercised to mitigate a manifestBinjustice. By review application an applicant cannot be allowed toreargue the appeal on the grounds which were urged at the timeof the hearing of the criminal appeal. Even if the applicant succeedsin establishing that there may be another view possible on theconviction or sentence of the accused that is not a sufficient groundCfor review. This Court shall exercise its jurisdiction to review onlywhen a glaring omission or patent mistake has crept in the earlierdecision due to judicial fallibility. There has to be an error apparenton the face of the record leading to miscarriage of justice toexercise the review jurisdiction under Article 137 read with Order40 Rule 1. There has to be a material error manifest on the faceDof the record with results in the miscarriage of justice.”

11. Applying the parameters of the review jurisdiction as noticedabove, we now proceed to examine the grounds given in the reviewpetition to find out as to whether there are any grounds for exercisingthe review jurisdiction by this court to review the judgment datedE05.05.2017.

12. We have heard Shri M.L.Sharma learned counsel appearingfor the petitioner and Shri Sidharth Luthra learned senior counselappearing for the respondent.

13. In support of the review petition, Shri Sharma has raised varioussubmissions which according to Mr. Sharma furnish grounds to reviewthe judgment to protect the fundamental rights of the petitioner guaranteedunder Articles 21, 20(3), 22(1) and 22(2) of the Constitution of India. Wenow proceed to examine the submissions in seriatim.

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G14. Shri Sharma submits that police arrested Mukesh from Karoli,the State of Rajasthan on 17.12.2012 in the morning and he was shownto be arrested in the evening of 18.12.2012 at Safdarjung Hospital inDelhi. He submits that Mukesh was not produced before the concernedMagistrate within twenty four hours of his arrest at Karoli which isviolative of rights guaranteed under Articles 22(1) and 22(2).H

15. Shri Sharma has further contended that police has coercedthe petitioner to give his vakalatnama in favour of one V.K. Anandadvocate, who was police sponsored advocate. He submits that thepetitioner has given his vakalatnama in favour of Shri M.L. Sharmaadvocate in January 2013 and April 2013 but police imposed AdvocateV.K. Anand as his advocate and compelled to give his confessionstatement under Section 313 Cr.P.C.

16. Shri M.L. Sharma further submitted that accused Mukeshwas tortured by police with regard to which he also filed an affidavit inMarch 2013 before the trial court and this affidavit was not consideredby 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 accusedMukesh did not know driving of a bus and had driving licence which wasonly for LMV(Motorcycle).

18. It is further submitted by Shri Sharma that this Court has notconsidered the remand application filed by the IO Exh. PW.80/D2, whichclearly proves that no disclosure existed till 22.12.2012.

19. One of the submissions which has been raised by Shri Sharmais that this Court had not adverted to the call details as per which accusedMukesh could not have been in the bus on 16.12.2012, since at that timea call was received by him from Ram Singh at 8.55 p.m.

20. Shri Sharma has attacked the second dying declarationrecorded by the SDM, Usha Chaturvedi and submitted that in the policediary there is no mention of dying declaration recorded by the SDM,Usha Chaturvedi.

21. Shri Sharma has again attacked the evidence of PW.1 andtried to point out certain contradictions and errors.

22. Learned counsel submitted that as application for additionalevidences under Section 391 Cr.P.C. remained pending before theAppellate Court and no orders were passed therein.

23. Shri Sidharth Luthra, learned senior counsel replying theaforesaid submissions contends that police on information received fromone Ram Singh has reached to Karoli district, Rajasthan and reached atthe house of Mukesh at 10.45 a.m. and apprehended the petitioner who A

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Awas brought to Delhi and first taken to Vasant Vihar Police Station andafter coming to know that IO was at Safdarjung Hospital, accused wastaken 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 hasBtaken us to the proceedings of trial court and the orders passed by trialcourt in support of his submission that it was on the statement of Mukeshaccused before the Court where he expressed a desire to discharge ShriM.L. Sharma the Court passed an order on 24.01.2013 discharging ShriSharma on the request of accused and thereafter V.K. Anand waspermitted to be engaged by the petitioner.C

25. Opposing the submission regarding coercion and torture, ShriSidharth Luthara submitted that Mukesh was in judicial custody andfrom judicial custody he used to go to Court to attend the trial. On severaloccasions, the Court interacted with the accused and in none of theoccasion, accused at any point of time complained of any torture byDpolice or jail authorities. Shri Luthra further submitted that Court haddirected for medical checkups of Mukesh and also sought a report ofMukesh. The torture by police was never alleged or proved by theaccused.

26. Learned Counsel for the respondent submits that the issueEregarding not having driving licence for Bus was not raised during thetrial or during the cross-examination of the witnesses, hence, at thisstage, it cannot be allowed to be raised.

27. Shri Sidharth Luthra replying the submission regarding remandapplication dated 22.12.2012 submitted that after the arrest of accusedFon 18.12.2012, the accused was produced before the Magistrate on19.12.2012 and after TIP was conducted on 20.12.2012 he was remandedin the police custody for three days on 22.12.2012, hence the remandapplication was given on 22.12.2012.

28. Shri Luthra replying the submission based on call details ofGMukesh it is submitted that this Court in its judgment dated 05.05.2017has elaborately considered all the evidences and held that Mukesh wasin the bus, which was boarded by the prosecutrix and PW.1 at about9.00 p.m. and it was proved that Mukesh was driving the bus. We haveconsidered the submissions of both the parties and have perused therecords.H

29. Coming to the submission of arrest at Karoli, the High Courthas dealt this submission in paras 288 to 294. The High Court has noticedin para 290 that petitioner in his statement under Section 313 Cr.P.C. inan answer of question No.132 claimed that he was not apprehended athis village Karoli, Rajasthan but was apprehended at Ravidass Camp inDelhi. High Court noticing the judgment of the Privy Council in thePrabhu v. Emperor, AIR 1944 PC 73 had observed that convictionshall not be affected by any irregularity in his arrest. Police have showna formal arrest on 18.12.2012 and this Court vide its judgment dated05.05.2017 has also noticed the fact that accused was formally arrestedat 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 holdthat conviction and trial of the accused is vitiated in any manner so as tocall for review of the judgment dated 05.05.2017. There is no apparenterror in the Judgment dated 05.05.2017.

30. Coming to the submission that Shri V.K. Anand, Advocatewas forced on petitioner it is sufficient to note the order sheet of trialcourt which noticed all facts. In proceeding dated 24.01.2013 the TrialCourt has recorded:

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

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

Again when the accused made his request to avail the services ofM.L. Sharma, said fact was recorded on 20.03.2013 proceeding andShri 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- AB

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Aexamination on behalf of the accused then the Court was left with nooption but to appoint a amicus curiae. The submission of Shri Sharmathat Advocate V.K. Anand was forced on the accused against his will iswholly untenable and does not furnish any ground to review the judgment.

31. With regard to submission regarding torture by police, it isBsufficient to note that the trial court interacted with the accused on manyoccasions and on none of the occasions any complaint was made byaccused. The accused was in judicial custody. The trial court in itsproceeding dated 24.01.2013 recorded following:

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

The submission of Shri Sharma that statement of accused recordedunder Section 313 Cr.P.C. was under pressure and influence of amicuscuriae has no legs to stand. The above argument is stated to be rejectedDsince the statement was recorded by the Court and the accused wascoming from judicial custody and could not be tortured by the police asalleged. On the affidavit filed in March 2013, the trial court had promptlycalled for a report and matter was not further pursued by the trial courtsince no material came to substantiate the plea.

E32. This Court in its judgment dated 05.05.2017 has held aftermarshalling evidence of PW.1 and other evidences including scientificevidences that Mukesh was driving the bus. The issue whether he hada driving licence for driving the bus or not has no relevance with regardto conviction recorded against the accused which has been affirmed bythe High court and this Court as well.F

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33. This Court in its judgment has referred to recoveries madefrom the petitioner in para No. 127. Remand application was given bypolice after conclusion of T.I.P. Recoveries made from petitioner hasbeen discussed and believed, we cannot permit the petitioner to arguethe said issues again.

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34. Learned counsel for accused No.2-Mukesh contended thataccused No.2-Mukesh does not know driving as evidenced from hisdriving licence which shows that the licence was only for Light MotorVehicle (LMV) and that he does not know how to drive a bus. Furthercontention of accused No.2-Mukesh is that as per the Call Details Record H

(CDR), he could not have been present in the bus on 16.12.2012 at08.55 p.m.

35. The argument that accused No.2-Mukesh does not knowdriving has not been raised during the trial or in evidence and also cross-examination of witnesses by the accused. Upon consideration of theevidence of PW-1 and other evidences including scientific evidence, thisCourt has arrived at the conclusion that accused no.2-Mukesh was drivingthe bus. Issue whether accused No.2-Mukesh has a driving licence fordriving the bus or not has no relevance with regard to conviction recordedagainst the accused which has been affirmed by the High Court and thisCourt as well.

36. There is no merit in the contention that accused No.2-Mukeshcould not have driven the bus and that he was not present in the bus atthe time of the incident. It is to be noted that in the questioning underSection 313 Crl.P.C., accused No.2-Mukesh has clearly admitted thathe 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), arebrothers. He has also admitted that on the night of 16-12-2012, hewas driving the bus and that accused Pawan and Vinay Sharmawere seated on the backside of the driver’s seat, whereas Akshayand Ram Singh were sitting in the driver’s cabin. The relevantportion of his statement under Section 313 Cr.PC reads as under:

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

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

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SUPREME COURT REPORTS

Q.4.: It is in evidence against you that during the course of hisdeposition, complainant, PW 1 has identified you accusedMukesh to be the person who was sitting on the driver’s seatand was driving the bus; PW 1 further identified your co-accused Ram Singh (since deceased), and Akshay Kumar tobe the person who were sitting in the driver’s cabin along withthe driver; PW 1 had also identified your co-accused PawanKumar who was sitting in front of him in two seats row of thebus; PW 1 had also identified your co-accused Vinay Sharmato be the person who was sitting in three seats row just behindthe driver’s cabin, when PW 1 entered the bus; PW 1 has alsodeposed before the court that the conductor who was callinghim and his friend/prosecutrix to board the bus, Ext. P-1 wasnot among the accused person being tried in this court.

Ans.: Accused Pawan and accused Vinay Sharma were sittingon my backside of the driver’s seat and whereas accusedAkshay was sitting in the driver’s cabin while my brother RamSingh, since deceased was asking for passengers.

Q.5.: It is in evidence against you that after entering the busPW 1 noticed that seats cover of the bus were of red colourand it had yellow-coloured curtains and the windows of thebus had black film on it. The windows were at quite a heightas in luxury buses. As PW 1 sat down inside the bus, he noticedthat two of you accused were sitting in the driver’s cabin werecoming and returning to the driver’s cabin. PW 1 paid an amountof 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, Ext. P-1 werehaving black film on it but I cannot say if the seats of the buswere having red covers or that the curtains were of yellowcolour as my brother Ram Singh, since deceased, only used todrive the bus daily and that on that day since he was drunkheavily so I had gone to Munirka to bring him to my house andhence, I was driving the bus on that day. I had gone to Munirkawith my nephew on my cycle to fetch Ram Singh, sincedeceased, and that the other boys along with Ram Singh hadalready taken the bus from R.K. Puram. I was called by RamSingh 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 judgmentof this Court in more than one place. Presence of accused No.2-Mukeshin the bus has also been considered while considering the presence ofwitness PW-82, Shri Ram Adhar in the bus in para (298). As pointed outabove, in his questioning under Section 313 Crl.P.C., accused No.2-Mukesh has admitted that he and accused No.1-Ram Singh (sincedeceased) are brothers and on the night of 16.12.2012, he (accusedNo.2-Mukesh) was driving the bus and that accused-Pawan and accused-Vinay Sharma were seated on the back side of the driver seat whereasaccused-Akshay was sitting in the Driver’s cabin. Accused-Ram Singhand JCL, Raju were calling for passengers by saying “Palam/DwarkaMod”. When there is such clear admission in the questioning under Section313 Cr.P.C, now the Petitioner-accused No.2-Mukesh cannot raise theplea denying his presence in the bus.

38. Another contention raised by accused No.2-Mukesh is thathe could not have been present in the bus on 16.12.2012 at 08.55 p.m. asseen from Call Details Record (CDR) and that his phone number wasgiving the location of Lajpat Nagar. This issue has been elaborately arguedand dealt with as overlapping of signals in close proximity is common.

39. This Court had elaborately considered all the three dyingdeclarations. All the three dying declarations having been relied by trialcourt, High Court and this Court and all arguments attacking the dyingdeclarations having been considered and rejected, in its judgment dated05.05.2017, we are of the view that the petitioner cannot be allowed tore-agitate the same issues which were already considered and expresslyrejected by this Court.

40. The victim made three dying declarations:- (i) statementrecorded by PW-49 Dr. Rashmi Ahuja immediately after the victim wasadmitted to the hospital; (ii) Dying declaration (Ex.PW-27/A) recordedby PW-27 SDM Usha Chaturvedi on 21.12.2012; and (iii) dyingdeclaration(Ex.PW-30/D) recorded by PW-30 Pawan Kumar,Metropolitan Magistrate on 25.12.2012 at 1:00 p.m. by multiple choicequestions and recording answers by gestures and writing. In the firstdying declaration (Ex.PW-49/A), the prosecutrix has stated that morethan two men committed rape on her, bit her on lips, cheeks and breastand 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 AB

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Aincident in great detail, specifying the role of each accused, rapecommitted by number of persons, insertion of iron rod in her privateparts, description of the bus, robbery committed and throwing of boththe victims out of the moving bus in naked condition. On 25.12.2012 at1:00 p.m., PW-30 Pawan Kumar, Metropolitan Magistrate recorded thestatement by putting multiple choice questions to the victim and by gettingBanswers through gestures and writing. While making the third declaration,the victim also tried to reveal the names of the accused by writing in herown handwriting viz. “Ram Singh, Mukesh, Vinay, Akshay, Vipin,Raju”.

41. All the contentions raised regarding the three dying declarationsChave 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 aretrue, voluntary and consistent. Insofar as third dying declaration, thisCourt, in paras (408) to (412) held that the dying declaration made throughDsigns, gestures or by nods are admissible as evidence and that propercare was taken by PW-30 Pawan Kumar, Metropolitan Magistrate andthe third dying declaration recorded by in response to the multiple-choicequestions by signs, gestures made by the victim are admissible asevidence. In the third dying declaration, the victim also wrote the namesof the accused persons “Ram Singh, Mukesh, Vinay, Akshay, Vipin,ERaju”. So far as the name of accused Vipin written by the prosecutrixin the third dying declaration has been elaborately considered by thisCourt in paras (150) and (188) of the judgment.

42. This Court has examined the evidence of PW.1 extensivelyand have given ample reason for accepting the said evidence as reliable.FThe petitioner cannot be allowed to re-agitate the matter.

43. Yet another contention raised by Mr. Sharma is that therewere two different recoveries from accused No.2-Mukesh during hisdetention only to falsely implicate him and this has not been consideredby this Court. It is the further contention that the remand report filed byGthe I.O. (Ext. PW-80/D2) was not considered which implied that therewas no disclosure existed till 22.12.2012 and the disclosures andrecoveries shown are highly doubtful. The arrest and recovery of accusedNo.2-Mukesh have been referred to in paras (116), (117) and in thetabular column in para (128) and the details of arrest of all the accusedHand 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, thescope 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 raisingdoubts 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 thatthe illegal detention of Mukesh in Karoli/Rajasthan on 17.12.2012 andfailure to present him before the nearest Magistrate was not consideredby this Court. As pointed out earlier, the details of arrest of accusedNo.2-Mukesh have been referred to in detail in para (116) of the judgmentand the 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 proceedingsheld on 20.12.2012 corroborates recovery of articles from accused No.2-Mukesh (vide para (441)). Further, the DNA profile generated fromblood strained pants, T-shirts and jackets recovered from accused No.2-Mukesh matching with the DNA profile of the victim corroborates therecoveries made from accused No.2-Mukesh vide paras (231) and (454).

45. When the appeal was decided, all applications if any pendingshall stand closed and we do not find any ground to review the judgmenton this count, especially when parties lead all the evidences which werein their power.

46. We may observe that submissions which have been raised byShri Sharma before us in this review petition are more or less thesubmissions which were advanced at the time of hearing of the appealand this Court had already considered the relevant submissions anddealt them in its judgment dated 05.05.2017. This court had cautiouslygone into and revisited the entire evidences on record and after beingfully satisfied had dismissed the appeal. By the review petition thepetitioner cannot be allowed to re-argue the appeal on merits of the caseby pointing out certain evidences and materials which were on the recordand were already looked into by the trial court, High court and this Courtas well.

47. In review petition, the petitioner had tried to raise the plea thathe was not in the bus and he has nothing to do with the incident. Thefactum of he being involved in the offence having been gone into by all A

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Acourts and after marshalling the evidences, he having been convictedand sentenced, it is not open for the petitioner in the review petition tocontend that he had nothing to do with the incident.

48. We after having heard learned counsel for the petitioner andlearned senior counsel for the respondent and having gone through theBgrounds taken in the review petition, find that review petition does notdisclose any ground, on which review jurisdiction can be exercised bythis Court under Article 137 read with Order XLVII Rule 1 of the Supremecourt Rules, 2013. Consequently, the review petition is rejected.

CAnkit Gyan

Review Petition rejected.

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