VINAY SHARMA & ANR. versus STATE OF NCT OF DELHI on 9 July 2018

[2018] 7 S.C.R. 919

VINAY SHARMA & ANR.

v.

STATE OF NCT OF DELHI

(Review Petition (Crl.) Nos. 671-673 of 2017)

In

(Criminal Appeal Nos. 608 & 609-610 of 2017)

JULY 09, 2018

[DIPAK MISRA, CJI, R. BANUMATHI AND

ASHOK 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 petitions filed by the twopetitioners-accused – Held: In review petitions, petitioners cannotask the Court to re-hear the appeals on merits which submissionshad already been noted, considered and rejected – Criminal appealsfiled by the petitioners against the judgment of the High Court wereheard by the Supreme Court giving them sufficient time for raisingall possible submissions and same were duly considered in the mainjudgment – In instant case, no ground has been made out whichmay furnish any ground to review the judgment – Supreme CourtRules, 2013 – Or.XLVII, r.1 – Constitution of India – Art.137.

Dismissing the Review Petitions, the Court HELD: 1. An application to review a judgment is not to belightly entertained and this Court could exercise its reviewjurisdiction only when those grounds are made out as providedin Order XLVII Rule 1 of the Supreme Court Rules, 2013 framedunder Article 145 of the Constitution of India. As per rule, reviewin a criminal proceeding is permissible only on the ground oferror apparent on the face of the record. [Paras 20, 21][927-C-D, F]

2. The submission made by petitioners attacking theevidence of PW-1 sole eye-witness, who was also injured in theincident need not to be considered in these review petitions. Allsubmissions impeaching evidence of PW-1 were made when the

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Aappeals were heard on merit. This Court had considered allsubmissions attacking the evidence of PW-1 and after examiningthe relevant evidences had relied on evidence of PW-1. In thereview petitions, petitioners cannot ask the Court to re-hear theappeals on merits which submissions had already been noted,considered and rejected. [Para 28][933-E-G]B

3. The submission of Petitioners that Bus Ex.P-1, has beenfalsely implicated is also stated to be rejected. All thesesubmissions were considered by this Court while delivering thejudgment in paragraphs 98-107. This Court has rejected thesubmission of the petitioners that it was a case of plantation ofCBus, the Bus was found to be involved in the incident from theevidence on record. [Para 29][933-G-H]

4. All the contentions raised regarding the three dyingdeclarations of the victim have been considered in detail.Considering all the three dying declarations, in the light of well-Dsettled principles, this Court held that all the three dyingdeclarations are true, voluntary and consistent. [Para 35][935-E-F]

5. The plea of alibi put forth by petitioner no.1 that he waspresent in the musical programme organised by the SCC Unit ofEthe Church in the DDA Park in his locality has been elaboratelyconsidered by this Court which has also referred to the evidenceof PW-84 and PW-85 who have deposed that their church(es)never organised any musical programme/event in the DDA park.While considering the plea of alibi raised by petitioner no.1Freferring to the evidence of DW-5 mother of petitioner no.1, DW-7and DW-9 this Court held that the plea of alibi raised by petitionerno.1 was not acceptable. [Para 39][936-G-H; 937-A-C]

6. Plea of alibi raised by petitioner no.1 was also consideredin the light of the footprints lifted from the bus (Ext.P/1). PW-46GSenior Scientific Officer (Fingerprints), CFSL, CBI examined thechance prints lifted from the bus marked as “Q.1” and “Q.4”was found identical with the left palmprint and right thumbimpression of petitioner no.1. After referring to the evidence ofPW-46 and the expert report (Ext. PW-46/D), this Court heldthat the evidence clearly establishes the presence of petitioner H

no.1 in the bus. There is no merit in the contention that the pleaof alibi was not considered by this Court. [Para 40][937-C-E]

7. Likewise, video clippings relied upon by petitioner no.1(Ext.DW-10/1) was considered in the judgment wherein this Courtheld that petitioners were not in the DDA District Park at 08:16pm on 16.12.2012. [Para 41][937-F]

8. The issue of juvenility of petitioner no.1 was consideredby the trial court and trial court on the basis of the materials onrecord held that petitioner No.1 was not a juvenile. The trial courton being fully satisfied that petitioner is not a juvenile has rightlyrejected the application for ossification test submitted bypetitioner No.1. [Para 42][937-G-H]

9. The submission of the petitioner No.2 that he wasjuvenile at the time of occurrence was also considered by thetrial court and rejected. The trial court on the basis of the materialplaced before it had rightly concluded that petitioner No.2 wasnot a juvenile. The respondent has rightly referred to theproceedings of trial court dated 10.09.2013. In this respect thissubmission also does not furnish any ground for review of thejudgment. [Para 43][938-A-B]

10. The criminal appeals filed by the appellants (petitionersherein) against the judgment of the High Court were heard bythis Court giving them sufficient time for raising all possiblesubmissions. The hearing in criminal appeals continued about 38days. The appellants/petitioners had made elaborate submissionswhich were all duly considered in main judgment. In these reviewpetitions no ground has been made out which may furnish anyground to review the judgment. [Para 44][938-B-D]

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.

Bachan Singh v. State of Punjab (1980) 2 SCC 684;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 – referred to.

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CRIMINAL APPELLATE JURISDICTION: Review Petition(Criminal) Nos. 671 - 673 of 2017 in Criminal Appeal No. 608 & 609-610 of 2017.

From the Judgment and Order dated 13.03.2014 of the High CourtCof Delhi at New Delhi in Criminal Appeal No. 1399 & 1414 of 2013 &Death Reference No. 6 of 2013.

A. P. Singh, V. P. Singh, Ms. Geeta Chauhan, Ms. Pratima Rani,Pawan Trivedi, Ms. Surekha Srivastava, S. P. Singh, C. M. Sharma,Harshit Bhadauria for M. M. Kashyap, Advs. for the petitioners.

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Sidharth Luthra, Sr. Adv., Ms. Supriya Juneja, Ms. DrishtiHarpalani, Kumar Vaibhav, Mrinal Srivastava, Karan Khaitan, SameerChaudhary, Advs. for the respondent.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. These review petitions have beenEfiled by two applicants Vinay Sharma-accused No.1 and Pawan KumarGupta-accused No.2 to review the judgment of this Court dated05.05.2017 by which judgment this Court had dismissed the criminalappeals filed by the petitioners challenging the order of the High Courtconfirming the death reference and dismissing the criminal appeals filedFby the petitioners against the order of conviction and award of deathsentence.

2. Both the petitioners were tried for rape and murder of a 23years’ age lady -Nirbhaya (changed name). The trial court convictedthe petitioners along with three others and awarded death sentence toall the four accused. Death reference No.6 of 2013 Was sent by the trialGcourt to the High Court. Separate criminal appeals were also filed bythe petitioners challenging the judgment of the trial court. Delhi HighCourt vide its judgment dated 13.03.2014 confirmed the death penalty toall the four convicts including petitioners, Vinay Sharma, appellant No.1in Criminal Appeal No. 609 of 2017, Pawan Kumar Gupta, appellant H

No.1 in Criminal Appeal Nos.608 of 2017. The appeals were dismissedby the judgment of this Court dated 05.05.2017. The petitioners aggrievedby the said judgment dated 05.05.2017 by which all the appeals weredismissed have filed these review petitions praying for reviewing thejudgment dated 05.05.2017.

3. We have heard the learned counsel, Shri A.P. Singh appearingfor the petitioners and Shri Sidharth Luthra, learned senior counsel forthe State.

4. Shri A.P. Singh learned counsel for the peititoners in support ofthe review petitions has urged several grounds. Shri Singh submits thatdeath penalty in India needs to be abolished. He submits that there areseveral reasons for opposing death penalty which broadly speaking, theyfall under two categories, moral and practical. This also goes against theprinciple of non-violence that India has advocated for decades. In theyear 1966, the Bill introducing death penalty abolition was passed by theHouse of Parliament in England. He further submitted that in a largenumber of countries death penalty has been abolished. In his submissionhe has referred the names of several Latin American countries andseveral Australian States.

5. Apart from above, several other contentions have been advancedby Shri A.P. Singh which we proceed to note in seriatim. Shri Singhsubmits that investigation and trial has been carried out with the solepurpose of survival of the prosecuting agency. The investigation isengaged in maladroit effort to book the vulnerable and the innocent soas to disguise and cover there inefficiency to catch the real culprits. Thepolitical class is using investigating agencies as tools for partisan politicalobjective.

6. PW.1, during his cross-examination was confronted with hisstatement Ex.PW-1/A qua the factum of not disclosing the use of ironrod, the description of Bus, the name of assailants either in MLC Ex.PW-51/A or in his complaint Ex.PW-1/A. The Bus, Ex.P-1 has been falselyimplicated in the present case. CCTV footage was not properly examinedto check all possible Buses plying on the said route. The Bus was takento Tyagraj Stadium instead of the Police Station to avoid the media andto facilitate the planting of evidence.

7. That the three dying declarations have been contrived anddeserved to be kept out of consideration and the dying declarations do A

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Anot inspire confidence for variations in them relating to the number ofassailants, the description of Bus, the identity of accused etc. If at allany dying declaration is to be relied on, it is first dying declaration madeon 16.12.2012 and recorded by PW-49, Dr. Rashmi Ahuja, which dyingdeclaration only states that there were 4 to 5 persons in the Bus.

B8. In the statement recorded in MLC Ex.PW-49/A prosecutrixhas neither named any of the accused nor mentioned the factum of ironrod being used by the accused persons. The prosecutrix could not havegiven such a lengthy dying declaration on 21.12.2012 when she wascontinuously on morphine. Third dying declaration recorded by theMetropolitan Magistrate, PW-30, on 25.12.2012, through gesture andCwritings is controverted by allegations of false medical fitness certificateand absence of videography. The use of iron rod was not mentioned byPW-1 in his statement. Had the iron rod been really inserted through thevagina, it would have first destroyed the uterus before the intestineswere pulled out. There were no rod related injuries in her uterus andDmedical science too does not assist the prosecution in their claim.

9. The DNA test can not be treated as accurate, since there wasblood transfusion as the prosecutrix required blood and when there ismixing of blood, the DNA profile is likely to differ.

10. The High Court has failed to appreciate that petitioner No.1,EVinay Sharma on the date of incident and time was in a musicalprogramme arranged by S.C.C. unit of Church in his locality and he wasthere from 8.15 p.m. to 11/12 p.m. on 16.12.2012. The presence ofpetitioner No.1 in musical show has been witnessed by defence witnesseswho had deposed before the Court. Ram Babu,DW-10 had alsoFvideographed the show from the mobile phone of petitioner No.1 whichwas produced before the trial court.

11. The application for ossification test submitted by petitionerNo.1 was wrongly turned down by the trial court. The petitioner wasactually born on 01.03.1995 but his date of birth given by his father wasG01.03.1994 which was only for the purpose of getting him admitted inthe MCD School. The petitioner was only 17 years 8 months and 15days old at the time of incident.

12. The real date of birth of petitioner No.2 is 08.10.1996 and hewas also minor on the date of incident. The petitioners were not habitual offenders. Number of dacoits have surrendered for the last severaldecades and have reformed themselves.

13. Shri Sidharth Luthra, learned senior counsel appearing for theState refuting the submissions of the petitioners submitted that thepetitioners already in a long hearing of the appeals before this Courthave made all possible submissions which have been considered by thisCourt while deciding the appeals on 05.05.2017, the review petition isnothing but an effort by the petitioners to re-argue the appeals on meritswhich is not permissible under the law. No grounds have been made outto consider the review petitions. In so far as the submission of the learnedcounsel for the petitioners that the death penalty be abolished in India,Shri Luthra submits that the said submission need not to be gone into inthese review petitions. It is submitted that death penalty has alreadybeen upheld by this Court by the Constitution Bench of this Court inBachan Singh vs. State of Punjab, (1980) 2 SCC 684. He submitsthat death penalty being still in the statute book it is not open for thepetitioners to argue that the death penalty be abolished in this country.The abolition of the death penalty is a legislative function and unless theParliament passes an amending Act it is not for the Courts to considerthe said submission.

14. With regard to the submissions of the petitioners thatinvestigation was faulty and prosecuting agencies had roped in thepetitioners, it is submitted that prosecution was scientifically carried outin efficient manner which has also been noted by this Court and anyperson against the prosecution are unjustified and have to be ignored.

15. The evidence of PW-1 and all infirmities which are sought tobe pointed out in these review petitions have already been consideredand gone into by this Court. Learned counsel has referred to in paragraphs65 to 97 and 425 to 434 of the judgment where this Court has thoroughlyconsidered all submissions regarding evidence of PW-1 and this Courthas rejected the inconsistencies, shortcomings and omissions as beingpointed by the petitioners. Coming to the submission that the Bus, P-1has been falsely implicated, Shri Luthra submits that apart from CCTVfootage where Bus was noticed twice passing in front of the hotel, therewere other evidences, namely finger prints, wound stains and other objectsobtained from the Bus which proved that the Bus was involved in theincident. Shri Luthra has referred to paragraphs 104 and 105 where thisargument has been noted and rejected by this Court.

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A16. On the submissions raised by the learned counsel for thepetitioners regarding dying declarations, Shri Luthra submits that allarguments pertaining to dying declarations have been considered anddealt with by this Court in paragraphs 148 to 192 of the judgment dated05.05.2017 and petitioners cannot be allowed to reagitate the same whichhave already been considered and rejected by this Court. With regard toBfirst dying declaration which was the case history recorded by Dr. RashmiAhuja, this Court has considered all aspects and had already held thatthere was no infirmity in noticing the facts as could be disclosed by theprosecutrix at that time when she had undergone traumatic experienceimmediately before.C

17. The non-mention of use of iron rod in the MLC or PW-1’sstatement has also been considered by this Court and this Court hadheld and found use of iron rod from the evidence. The statement of PW-1 pertaining to use of iron rod to injure the prosecutrix has also beenconsidered and noticed by this Court. The DNA reports have beenDexamined in detail by this Court including blood transfusion which hasalso been considered in paragraphs 233-234. With regard to alibi of VinaySharma that he, at the relevant time, was in a musical programme, thisCourt in its judgment dated 05.05.2017 has considered and rejected theplea of alibi after consideration of Defence evidence. The same argumentcannot be allowed to be raised in the review petition. In so far as theEargument that petitioner No.1, Vinay Sharma was a juvenile at the timeof the commission of the offence, Shri Luthra mentioned order of thetrial court dated 10.01.2013 which mentioned that age verification reportof Vinay and Pawan have been received and they do not dispute the ageverification report filed by the IO. The prosecuiton has placed the certified Fcopy of the admission register of the first attended school along with thecertified copy of the admission form of the first class of accused-VinaySharma and trial court after considering all evidences had held that VinaySharma was more than 18 years of age at the time of commission ofoffence. On the claim that Pawan was a juvenile, Shri Luthra referred to the order dated 10.01.2013 where age verification report of PawanGhas been received and also certified copies had been filed on record.The report had referred to the written statement of the parents of boththese accused where they have confirmed the age of their wards. Therewas no infirmity in the trial court taking decision that both were majorand the trial court proceeded accordingly. There is no substance in theHsubmission raised by the learned counsel for the petitioners.

18. We have considered the submissions of the parties and perusedthe records.

18. We have considered the submissions of the parties and perusedthe records.

19. Before we enter into the submissions raised in these reviewpetitions, it is useful to recapitulate the scope and grounds available forexercise of jurisdiction by this Court under Article 137. Order XLVIIRule 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.”

20. An application to review a judgment is not to be lightlyentertained and this Court could exercise its review jurisdiction only whenthose grounds are made out as provided in Order XLVII Rule 1 of theSupreme Court Rules, 2013 framed under Article 145 of the Constitutionof India. This Court in Sow Chandra Kante and another v. SheikhHabib, (1975) 1 SCC 674 speaking through Justice V.R. Krishna Iyeron review has 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.”

21. As per rule, review in a criminal proceeding is permissibleonly on the ground of error apparent on the face of the record. ThisCourt in P.N. Eswara Iyer and others v. Registrar, Supreme Courtof India,(1980) 4 SCC 680 while examining the review jurisdiction ofthis Court vis 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 error A

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Ashould 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 theBcourt 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 theCsource. 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 becomesDnecessitous.

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 theErule (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, newFlight 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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22. The scope of review jurisdiction has been considered by thisGCourt in a number of cases where 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:

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“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, 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 beadvanced 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 akinthereto. 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.”

18. Review is not rehearing of an original matter. The power ofreview 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)

“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 relief whichhad been sought at the time of arguing the main matter and hadbeen negatived. Once such a prayer had been refused, no reviewpetition would lie which would convert rehearing of the originalmatter. It is settled law that the power of review cannot be AB

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930SUPREME COURT REPORTS

Aconfused with appellate power which enables a superior courtto correct all errors committed by a subordinate court. It is notrehearing of an original matter. A repetition of old and overruledargument is not enough to reopen concluded adjudications. Thepower of review can be exercised with extreme care, cautionand circumspection and only in exceptional cases.

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12. When a prayer to appoint an arbitrator by the applicant hereinhad been made at the time when the arbitration petition washeard and was rejected, the same relief cannot be sought by anindirect method by filing a review petition. Such petition, in myopinion, is in the nature of ‘second innings’ which is impermissibleCand 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 ofDthe 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 inChhajju Ram v. Neki and approved by this Court in Moran MarEBasselios 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 inUnion of India v. Sandur Manganese & Iron Ores Ltd.

20.2. When the review will not be maintainable:F(i) A repetition of old and overruled argument is not enough toreopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

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

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

(v) A review is by no means an appeal in disguise whereby anH

erroneous decision is reheard and corrected but lies only forpatent error.

(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 be advancedin the review petition.

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

23. This very Bench speaking through one of us (Justice AshokBhushan) had occasion to consider the ambit and scope of the reviewJurisdiction 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:

“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 manifestinjustice. 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 groundfor 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 faceof the record with results in the miscarriage of justice.”

24. We first take up the submission of Shri A.P. Singh regardingthe abolition of death penalty in this counrty. The Constitution Bench of A

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Athis Court in Bachan Singh (supra) examined the constitutional validityof death penalty as provided under Section 302 of IPC. After elaboratelyconsidering the existence of death penalty in the Penal Code, constitutionalprovisions of Articles 19 and 21, and international covenant on civil andcriminal rights, this court held that death penalty as contained in PenalCode is constitutionally valid. In paragraph 132 following was held:B

“132. To sum up, the question whether or not death penaltyserves any penological purpose is a difficult, complex andintractable issue. It has evoked strong, divergent views. For thepurpose of testing the constitutionality of the impugned provisionas to death penalty in Section 302, Penal Code on the ground ofCreasonableness in the light Of Articles 19 and 21 of theConstitution, it is not necessary for us to express any categoricalopinion, one way or the other, as to which of these two antitheticalviews, held by the Abolitionists and Retentionists, is correct. It issufficient to say that the very fact that persons of reason, learningDand light are rationally and deeply divided in their opinion on thisissue, is a ground among others, for rejecting the petitioner’sargument that retention of death penalty in the impugned provision,is totally devoid of reason and purpose. If, notwithstanding theview of the Abolitionists to the contrary, a very large segment ofpeople, the world over, including sociologists, legislators, jurists,Ejudges and administrators still firmly believe in the worth andnecessity of capital punishment for the protection of society, if inthe perspective of prevailing crime conditions in India,contemporary public opinion channelized through the people’srepresentatives in Parliament, has repeatedly in the last threeFdecades, rejected all attempts, including the one made recently, toabolish or specifically restrict the area of death penalty, if deathpenalty is still a recognised legal sanction for murder or sometypes of murder in most of the civilised countries in the world, ifthe! framers of the Indian Constitution were fully aware as weshall presently show they were of the existence of death penaltyGas punishment for murder, under the Indian Penal Code, if the35th Report and subsequent Reports of the Law Commissionsuggesting retention of death penalty, and recommendingrevision of the Criminal Procedure Code and the insertion of thenew Sections 235(2) and 354(3) in that Code providing for pre-Hsentence hearing and sentencing procedure on conviction for D

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murder and other capital offences were before the Parliamentand presumably considered by it when in 1972-1973 it took uprevision of the Code of 1898 and replaced it by the CrPC, 1973, itis not possible to hold that the provision of death penalty as analternative punishment for murder, in Section 302, Penal Code isunreasonable and not in the public interest. We would, therefore,conclude that the impugned provision in Section 302, violatesneither the letter or the ethos of Article 19.”

25. The submission of Mr. Singh that death penalty has beenabolished by the Parliament of U.K. in the year 1966 and several LatinAmerican countries and Australian States have also abolished deathpenalty is no ground to efface the death penalty from the statute book ofour country. So far the death penalty remains in the Penal Code theCourts cannot be held to commit any illegality in awarding death penaltyin appropriate cases.

26. In view of the above, no ground to review judgment is madeout on the strength of the above submissions.

27. Now, coming to the submissions made by Shri Singh attackingthe investigation and prosecution agencies, suffice it to say thatsubmissions and arguments are general in nature and not based on anysubstantial ground so as to point out any such error in the trial so as tofurnish any ground to review any judgment.

28. The submission made by Shri Singh attacking the evidence ofPW-1 sole eye-witness, who was also injured in the incident need not tobe considered in these review petitions. All submissions impeachingevidence of PW-1 were made when the appeals were heard on merit.This Court had considered all submissions attacking the evidence ofPW-1 in paragraphs 65-97 and 425 to 434. This Court after examiningthe relevant evidences had relied on evidence of PW-1. In the reviewpetitions, petitioners cannot ask the Court to re-hear the appeals on meritswhich submissions had already been noted, considered and rejected.

29. The submission of Shri Singh that Bus Ex.P-1, has been falselyimplicated is also stated to be rejected. All these submissions wereconsidered by this Court while delivering the judgment inparagraphs 98-107. This Court has rejected the submission of thepetitioners that it was a case of plantation of Bus, the Bus was found tobe involved in the incident from the evidence on record.

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A30. Contention of Mr. V.K. Singh is that the bus No. DL 1 PC0149 (Ext. P/1) has been falsely implicated and the CCTV Footagecannot be relied upon and this aspect is not properly considered by thisCourt. The exact points now raised by Mr. Singh in para (M) of thereview petition were considered by this Court in paras (98) to (113) andparas (435) to (439). In para (101), this Court has referred to the evidenceBof PW-76 Gautam Roy, HoD, Computer Cell, Forensic Division whohas examined the CCTV Footage received by him in a Pen Drive in twosealed parcels. In paras (98) to (113), this Court has referred to theevidence regarding retrieval of CCTV Footage in the presence of PW-67 Pramod Kumar Jha, owner of the hotel at Delhi Airport and theCphotographs taken thereon to prove the involvement of the bus No. DL1 PC 0149 (Ext. P/1).

31. To show the involvement of the bus No. DL 1 PC 0149 (Ext.P/1), in paras (108) to (113), this Court has also elaborately consideredthe evidence of PW-81, Dinesh Yadav, owner of the bus and PW-16DRajeev Jakhmola, Manager (Admn.) of Birla Vidya Niketan School,Pushp Vihar who have stated that the bus No. DL 1 PC 0149 (Ext. P/1)was routinely driven by Ram Singh (deceased accused) and he was thedriver of the bus.

32. Involvement of the bus No. DL 1 PC 0149 (Ext. P/1) wasEalso held to be substantiated by matching of DNA profile of the materialobjects lifted from the bus No. DL 1 PC 0149 (Ext. P/1) which werefound consistent with that of the victim and the complainant. In paras(431) and (438), the same has been well-considered. Matching of DNAprofile developed from the articles seized from the bus like ‘hair’recovered from the third left row of the bus and the blood-stained seatFcover of the bus and the bunch of hair recovered from the floor of thebus with the DNA profile of the victim was held to be unimpeachableevidence establishing the involvement of the bus in the commission ofthe offence. The oral and scientific evidence has been elaboratelyconsidered by this Court in upholding the findings of the High Court as toGthe involvement of the bus. The petitioner/accused cannot reagitate thesame point again.

33. Mr. Singh has inter alia made various submissions regardingreliability of the three dying declarations:- (i) failure to disclose the namesof any of the accused in the first dying declaration (Ext.PW-49/A) and H

therefore, the second and third dying declarations are tutored; (ii) thethree dying declarations cannot be relied upon due to variations andimprovements; and (iii) sudden appearance of the name of ‘Vipin’ (inthe third dying declaration) makes it doubtful and no explanation is offered.

34. 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 entireincident 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 gettinganswers through gestures and writing. While making the thirddeclaration, the victim also tried to reveal the names of the accused bywriting in her own handwriting viz. “Ram Singh, Mukesh, Vinay, Akshay,Vipin, Raju”.

35. All the contentions raised regarding the three dying declarationshave 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 throughsigns, 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,Raju”. So far as the name of accused Vipin written by the prosecutrix A

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Ain the third dying declaration has been elaborately considered by thisCourt in paras (150) and (188) of the judgment.

36. Non-mention of use of iron rod in MLC, Ex.PW-49/A hasalso been noticed by this Court in its judgment and this Court has givenreasons for not finding any fault in the MLC, Ex.PW-49/A. TheBsubmissions of Shri Singh that on 21.12.2012 the prosecutrix was not fitto record her dying declaration has also been rejected. With regard tothe morphine injection which was given to prosecutrix, the statement ofDoctor, the time of injection and the effect of morphine was categoricallynoted and considered and no fault was found with the second dyingdeclaration. The submission having been noted, considered and dealtCwith by this Court in the judgment, the petitioners cannot be allowed toreagitate the same issue again and again. Non-mention of use of ironrod in the statement of PW-1 has also been noted in detail by this Court.That in second dying declaration on 21.12.2012 the prosecutrix hasmentioned the use of iron rod by which she was injured which is alsoDnoted by the Court. This Court noted the injuries and medical evidenceand has concluded that accused had used iron rod. Those submissionshaving been raised, dealt with by this Court in the main judgment, thepetitioners cannot be allowed to raise the same again.

37. With regard to reports regarding DNA, this Court elaboratelyEconsidered the whole concept of DNA and reports received. The attackof the petitioners on the ground of blood transfusion and other submissionson DNA report having been considered and has rightly been relied on bythis Court, the submissions pertaining to DNA are nothing but repititionof submissions which have been noted and rejected by this Court in themain judgment.F

38. Contention of Mr. V.K. Singh is that accused Vinay Sharmaraised the plea of alibi that he had attended a musical programmearranged by SCC Unit of the Church in his locality and he was therefrom 08:15 pm to 11.00/12.00 pm on 16.12.2012 and he has producedthe video clipping to prove his presence there in the programme and theGsame has not been considered by this Court.

39. The plea of alibi put forth by accused Vinay Sharma that hewas present in the musical programme organised by the SCC Unit ofthe Church in the DDA Park in his locality has been elaborately consideredin paras (258) to (269). In para (267) of the judgment, this Court referred H

to the evidence of PW-83 Shri Angad Singh, Deputy Director(Horticulture), DDA who has deposed that no permission was grantedby any authority to organise any function in the evening of 16.12.2012 inthe DDA District Park, Hauz Khas, New Delhi. This Court has alsoreferred to the evidence of PW-84 Father George Manimala of St.Thomas Church and PW-85 Brother R.P. Samuel, Secretary, EbenezerAssembly Church who have deposed that their church(es) neverorganised any musical programme/event in the DDA District Park, HauzKhas in the evening of Sunday i.e. on 16.12.2012. While consideringthe plea of alibi raised by Vinay Sharma in paras (258) to (269) referringto the evidence of DW-5 Smt. Chamba Devi, mother of accused VinaySharma, DW-7 Kishore Kumar Bhat and DW-9 Manu Sharma, thisCourt held that the plea of alibi raised by accused Vinay Sharma wasnot acceptable. Petitioner/accused Vinay Sharma now cannot reagitatethe same point.

40. Plea of alibi raised by accused Vinay Sharma was alsoconsidered in the light of the footprints lifted from the bus (Ext.P/1).PW-46 A.D. Shah, Senior Scientific Officer (Fingerprints), CFSL, CBIexamined the chance prints lifted from the bus marked as “Q.1” and“Q.4” was found identical with the left palmprint and right thumbimpression of accused Vinay Sharma. After referring to the evidenceof PW-46 and the expert report (Ext. PW-46/D), this Court held that theevidence clearly establishes the presence of accused Vinay Sharma inthe bus. There is no merit in the contention that the plea of alibi was notconsidered by this Court.

41. Likewise, video clippings relied upon by accused Vinay Sharma(Ext.DW-10/1) was considered in para (263) of the judgment whereinthis Court held that accused Vinay Sharma and accused Pawan Guptawere not in the DDA District Park at 08:16 pm on 16.12.2012.

42. Now, coming to the submission regarding juvenility of petitioner,Vinay Sharma. The issue of juvenile was considered by the trial courtand trial court on the basis of the materials on record held that petitionerNo.1 was not a juvenile. Learned counsel for the respondent has referredto the order of the trial court dated 10.01.2013 which fully supports hissubmission. The trial court on being fully satisfied that petitioner is not ajuvenile has rightly rejected the application for ossification test submittedby petitioner No.1. There is no substance in this submission and no groundis made out to review the judgment.

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A43. Now, coming to the submission of the learned counsel forpetitioner No.2 that he was juvenile at the time of occurrence. The saidissue was also considered by the trial court and rejected. The trial courton the basis of the material placed before it had rightly concluded thatpetitioner No.2 was not a juvenile. Learned counsel for the respondenthas rightly referred to the proceedings of trial court dated 10.09.2013. InBthis respect this submission also does not furnish any ground for reviewof the judgment.

44. Before closing we need to reiterate that criminal appeals filedby the appellants (petitioners herein) against the judgment of the HighCourt were heard by this Court giving them sufficient time for raising allCpossible submissions. The hearing in criminal appeals continued about38 days. The learned counsel for the appellants/petitioners had madeelaborate submissions which were all duly considered by us in our mainjudgment. In these review petitions no ground has been made out whichmay furnish any ground to review the judgment. We, thus, find no meritDin these review petitions and consequently, the review petitions aredismissed.

Ankit Gyan Review Petitions dismissed.

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