REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
REVIEW PETITION (CRIMINAL) D NO.44603 OF 2019
IN
CRIMINAL APPEAL NOS.609-610 OF 2017
AKSHAY KUMAR SINGH ...Petitioner
VERSUS
STATE (NCT OF DELHI) …Respondent
J U D G M E N T
R. BANUMATHI, J.
This Review Petition has been preferred by the petitioneraccused Akshay Kumar Singh who was the cleaner of the bus to
review the judgment dated 05.05.2017 passed by this Court in
Criminal Appeal Nos.609-610 of 2017 in and by which this Court
confirmed the conviction and death penalty imposed upon the
petitioner by the trial court as well as by the High Court.
2. In the evening of 16.12.2012, the prosecutrix (since
deceased) had gone for a movie with her friend, PW-1. At about
08:45 pm, both the prosecutrix and PW-1 left the movie theatre and
reached Munirka bus stand and they boarded the bus bearing
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registration No. DL-1PC-0149. This bus was being driven by
accused Ram Singh (since deceased) and the petitioner-Akshay
Kumar Singh @ Thakur was the helper thereof. The accused
misbehaved with the prosecutrix and have committed gang rape of
the prosecutrix in the moving bus. They also committed unnatural
offence and inserted iron rod in the private parts of the prosecutrix.
The accused persons had beaten up PW-1 with iron rods and his
clothes were torn off. The accused also took away all the
belongings of the prosecutrix and PW-1 and thereafter, threw the
prosecutrix and PW-1 in a naked/semi naked condition from the
moving bus. The prosecutrix was treated at Safdarjung Hospital,
Delhi where her three dying declarations were recorded. Since the
condition of the prosecutrix became critical, she was shifted for
further treatment on 27.12.2012 to Mt. Elizabeth Hospital,
Singapore where, she died on 29.12.2012.
3. The trial court held that the complicity and guilt of the accused
were proved and convicted the petitioner and other accused under
Sections 120-B IPC, 376 (2)(g) read with Section 120-B IPC, 377
read with 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, 302 read with Section 120-B IPC, 307 read with Section 120-B
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IPC, 412 and 201 read with Section 120-B IPC and inter alia
imposed death penalty upon them. Death penalty and other
sentence of imprisonment imposed upon them was confirmed by
the High Court. The accused had filed Criminal Appeal Nos.609-610
of 2017 before this Court.
4. Criminal appeal filed by the petitioner had earlier been
dismissed by this Court vide its judgment dated 05.05.2017 in
Mukesh and another v. State (NCT of Delhi) and others (2017) 6
SCC 1 on the basis of the following evidence which firmly
established the presence of the petitioner at the scene of the
incident and his involvement in the commission of rape on the
prosecutrix :-
(i) evidence of PW-1/injured eye-witness who spoke about the
occurrence in the bus; PW-1 identified the petitioner in the TIP
conducted on 26.12.2012 as one of the persons who came out of the
driver’s cabin from the bus and started abusing PW-1 and later, took
the prosecutrix to the back side of the bus and raped her;
(ii) three dying declarations of the prosecutrix of which, in the second
dying declaration (ExPW27/A), prosecutrix stated the incident in
detail and that the accused persons were calling “Ram Singh,
Thakur, Raju, Mukesh, Pawan and Vinay and in the third dying
declaration, the prosecutrix wrote the names of the accused “Ram
Singh, Mukesh, Vinay, Akshay, Vipin, Raju” including petitionerAkshay Kumar Singh and other accused;
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(iii) evidence of PW-81-Dinesh Yadav, owner of the bus in which he has
stated that accused Ram Singh was the driver and petitioner was the
helper in the bus in which the incident occurred;
(iv) Ex.PW71/C, report of PW-71-Dr. Ashith B. Acharaya who opined that
one bite mark found on the prosecutrix could have been possibly
caused by the petitioner; three other bite 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 the behest of petitioner
matched with the DNA profile of the prosecutrix; another set of DNA
profile generated from jeans pant of the petitioner matched with the
DNA profile of PW-1 and DNA profile generated from breast swab of
the victim which was found consistent with the DNA profile of the
blood of the petitioner;
(vi) recovery of metro card and silver ring of PW-1 recovered at the
behest of the petitioner and identified by PW-1.
5. We have heard Mr. A.P. Singh, learned counsel appearing for
the 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 the
various grounds urged in the review petition and prayed for review
of the judgment. The learned Solicitor General Mr. Tushar Mehta
submitted that the evidence adduced by the prosecution and the
defence plea has been considered threadbare both by the trial
court, High Court and also by this Court. The learned Solicitor
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General submitted that upon appreciation of evidence, the High
Court and the Supreme Court upheld the findings as to the guilt of
the accused and also the sentence. The learned Solicitor General
also submitted that the very same grounds were raised in the review
petition by the co-accused and the same was dismissed by this
Court vide judgments in Mukesh v. State (NCT of Delhi) (2018) 8
SCC 149 and Vinay Sharma and another v. State (NCT of Delhi)
and others (2018) 8 SCC 186.
7. In this review petition, the petitioner prays for review of the
judgment dated 05.05.2017. In the review petition before us, the
petitioner has again sought to assail the merits of the prosecution
case and the findings rendered thereon which cannot be permitted.
8. It is no longer res integra that scope of review is limited and
review cannot be entertained except in cases of error apparent on
the face of the record. Article 137 of the Constitution of India
empowers the Supreme Court to review any judgment pronounced
or made, subject, of course, to the provisions of any law made by
the Parliament or any rule made under Article 145 of the
Constitution of India. Order XLVII Rule 1 of Supreme Court Rules,
2013 dealing with review reads as follows:-
“1. The Court may review its judgment or order, but no application for
review will be entertained in a civil proceeding except on the ground
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mentioned in Order 47 Rule 1 of the Code, and in a criminal
proceeding except on the ground of an error apparent on the face of
the record.”
As per the Supreme Court Rules, review in the criminal proceedings
is permissible only on the ground of error apparent on the face of
the record.
9. The jurisdiction of this Court under Article 137 of the
Constitution of India has been clearly stated in Sow Chandra Kante
and Another v. Sheikh Habib (1975) 1 SCC 674, wherein this Court
held as under:-
“A review of a judgment is a serious step and reluctant resort to it is
proper only where a glaring omission or patent mistake or like grave
error has crept in earlier by judicial fallibility. A mere repetition through
different counsel of old and overruled arguments, a second trip over
ineffectually covered ground or minor mistakes of inconsequential
import are obviously insufficient.”
10. Review is a not a rehearing of the appeal over again. In a
review petition, it is not for the Court to re-appreciate the evidence
and reach a different conclusion. The scope of review jurisdiction
has been elaborately considered by this Court in number of cases
and the well settled principles have been reiterated time and again.
In Kamlesh Verma v. Mayawati and Others (2013) 8 SCC 320, the
Supreme Court held as under:-
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“17. In a review petition, it is not open to the Court to reappreciate the
evidence and reach a different conclusion, even if that is possible.
Conclusion arrived at on appreciation of evidence cannot be assailed in
a review petition unless it is shown that there is an error apparent on the
face of the record or for some reason akin thereto. This Court in Kerala
SEB v. Hitech Electrothermics & Hydropower Ltd. (2005) 6 SCC 654
held as under: (SCC p. 656, para 10)
“10. … In a review petition it is not open to this Court to
reappreciate the evidence and reach a different conclusion, even
if that is possible. The learned counsel for the Board at best
sought to impress us that the correspondence exchanged
between the parties did not support the conclusion reached by
this Court. We are afraid such a submission cannot be permitted
to be advanced in a review petition. The appreciation of evidence
on record is fully within the domain of the appellate court. If on
appreciation of the evidence produced, the court records a finding
of fact and reaches a conclusion, that conclusion cannot be
assailed in a review petition unless it is shown that there is an
error apparent on the face of the record or for some reason akin
thereto. It has not been contended before us that there is any
error apparent on the face of the record. To permit the review
petitioner to argue on a question of appreciation of evidence
would amount to converting a review petition into an appeal in
disguise.”
11. Considering the scope of review under Article 137 of the
Constitution of India and observing that normally in a criminal
proceeding, review applications cannot be entertained except on
the ground of error apparent on the face of the record, in Vikram
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Singh alias Vicky Walia and Another v. State of Punjab and Another
(2017) 8 SCC 518, the Supreme Court held as under:-
“23. In view of the above, it is clear that scope, ambit and parameters of
review jurisdiction are well defined. Normally in a criminal proceeding,
review applications cannot be entertained except on the ground of error
apparent on the face of the record. Further, the power given to this Court
under Article 137 is wider and in an appropriate case can be exercised to
mitigate a manifest injustice. By review application an applicant cannot
be allowed to reargue the appeal on the grounds which were urged at
the time of the hearing of the criminal appeal. Even if the applicant
succeeds in establishing that there may be another view possible on the
conviction or sentence of the accused that is not a sufficient ground for
review. This Court shall exercise its jurisdiction to review only when a
glaring omission or patent mistake has crept in the earlier decision due
to judicial fallibility. There has to be an error apparent on the face of the
record leading to miscarriage of justice to exercise the review jurisdiction
under Article 137 read with Order 40 Rule 1. There has to be a material
error manifest on the face of the record with results in the miscarriage of
justice.”
12. A review of the judgment is permitted only when it is shown
that 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 Supreme Court Rules, 1996, the Constitution Bench of the
Supreme Court observed that Order XL Rule 1 affords the wider set
of grounds for review of orders in civil proceedings, but limits the
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grounds vis-à-vis criminal proceedings to errors apparent on the
face of the judgment.
13. Applying the above parameters of the review jurisdiction, it is
to be seen whether the petitioner has made out any ground
indicating error apparent on the face of the record warranting review
of our judgment dated 05.05.2017.
14. Even at the outset, it is to be pointed out that the grounds
raised by the petitioner-accused in this review petition are identical
to that of the grounds raised by the co-accused in their review
petitions. Those grounds urged by the co-accused in their review
petitions were considered and rejected by this Court in Mukesh v.
State (NCT of Delhi) (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 raised
by the petitioner in this review petition viz., (i) futility of awarding
death sentence 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 is short anyhow and everyone is aware of what is happening in
Delhi NCR in this regard and while so, there is no reason why death
penalty should be awarded. According to the petitioner, in view of
the above, he should be spared of the death sentence. We find it
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unfortunate that such grounds have been raised in the matter as
serious as the present case.
16. The petitioner has also raised the plea that death penalty is
the 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
capital punishment by stating that only the poor and downtrodden
are more likely to be sentenced with death sentence. Such general
contentions put forth against the capital punishment cannot be gone
into in this review petition.
17. The petitioner has raised the plea as to the lack of
professional skills of the investigating agency and the need for an
unbiased investigation. In the petition, general allegations have
been made against the investigating agency alleging extortion of
confession and then create evidence to falsely implicate the
accused. The grounds raised in the petition alleging improper
investigation and manipulation of evidence are too general and not
specific. It is to be pointed out that each and every point raised by
the petitioner-accused assailing the course of investigation was well
considered by the trial court which we have gone through at the
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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, the petitioner
has raised the same contention which was raised earlier that is,
according to the petitioner, only the first dying declaration
(Ex.PW49/A) recorded by PW-49-Dr. Rashmi Ahuja where the
prosecutrix has neither named nor mentioned the name of any of
the accused persons, has to be relied upon. Contention of the
petitioner is that the second dying declaration (Ex.PW27/A)
recorded by PW-24-Dr. Usha Chaturvedi, SDM on 21.12.2012 could
not have been recorded as the victim was under the life support and
she could not have given four pages of dying declaration. Further
contention of the petitioner is that the third dying declaration
recorded by PW-30-Pawan Kumar, Metropolitan Magistrate where
the victim has named the petitioner and other accused was a
tutored version and cannot be relied upon.
19. Mr. A.P. Singh, learned counsel appearing for the petitioneraccused has contended that investigation in the present case is
flawed and unreliable. It was submitted that insofar as the recording
of the statement of witnesses under Section 161 Cr.P.C., manner of
arrest of the accused, conduct of test identification parade are
11
doubtful. Various contentions assailing the course of investigation
have been raised both before the trial court as well as before the
High Court and this Court which have been considered threadbare
and were rejected. We do not find any merit in the contention of the
learned counsel for the petitioner assailing the investigation.
20. The learned counsel submitted that because of the media
pressure, the petitioner and other accused have been falsely
implicated. Taking us through the averments made in para 3(f) of
the review petition, the learned counsel submitted that PW-1-
Awninder Pratap Singh had taken heavy amount as bribe and this
has been highlighted in some of the news channels which affect the
credibility of the evidence of PW-1. It was submitted that in this
regard, Heera Lal Gupta, father of co-accused Pawan Gupta had
filed a complaint vide Diary No.26A on 02.11.2019 before SHO, PS
R.K. Puram, Sector-12, New Delhi and also before Deputy
Commissioner of Police, Vasant Vihar. The averments made in
para 3(f) of the review petition are subsequent events unsupported
by any material. In a criminal case, culpability or otherwise of the
accused are based upon appreciation of evidence adduced by the
prosecution and also the evidence adduced by the defence. The
materials or the news emerging in the media and press as also the
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news channels cannot be taken note of in arriving at a conclusion
on the culpability of the accused or to test credibility of the witness.
Such events cannot be urged as a ground for review.
21. The learned counsel appearing for the petitioner-accused has
taken us through the averments made in para 3(g) of the review
petition and also the clippings of book titled “Black Warrant” written
by Sunil Gupta, a former law officer of Central Jail, Tihar, Delhi who
served long time in Tihar jail. The learned counsel submitted that in
the book written by the above officer, the officer has expressed his
opinion that Ram 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 is only his opinion which is not supported by any
material. If the former law officer had any doubt regarding death of
Ram Singh, the said officer could 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 High Court or before the Supreme
Court. The opinion of the said officer Sunil Gupta which is not
supported by any material, cannot be a ground for reviewing our
judgment.
22. As pointed out in the judgment, there were three dying
declarations recorded from the prosecutrix:-
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(i) in the first dying declaration (Ex.PW-49/A) recorded by Dr. Rashmi
Ahuja (PW-49) on 16.12.2012 at 11.15 pm, the prosecutrix has
stated that more than two men committed rape on her after which,
she does not remember the sexual intercourse; the prosecutrix also
stated that she was subjected to unnatural sex and she was bitten
over her lips, cheeks and breast;
(ii) in the second dying declaration (Ex.PW-27/A) recorded by PW-27-
Usha Chaturvedi, SDM on 21.12.2012 at 09.00 pm, the prosecutrix
has narrated the entire incident in great detail, specifying the role of
each of the accused, rape committed by number of persons, insertion
of iron rod in her private parts, description of the bus, robbery
committed and throwing of both the victims out of the moving bus in
naked condition. Prosecutrix also stated that the accused were
calling each other “Ram Singh, Thakur, Raju, Mukesh, Pawan and
Vinay”; and
(iii) in the third dying declaration (Ex.PW-30/D) recorded on 25.12.2012
at 1.00 p.m by PW-30-Pawan Kumar, Metropolitan Magistrate by
putting multiple choice questions to the victim and getting answers by
gestures and writing. While giving third dying declaration, prosecutrix
revealed the names of the accused by writing in her own handwriting
viz. “Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju”.
This Court considered the three dying declarations in the light of the
well-settled principles and found that the multiple dying declarations
inspire the confidence of the Court and are credible. The above
contentions were earlier raised and were considered by this Court in
paras (148) to (164), (186) to (192) and (395) to (417) of the
judgment and rejected. While so, the petitioner cannot raise the
same plea.
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23. So far as the plea of alibi, contention of the petitioner is that
he was not present in Delhi on the night of 16.12.2012 and that he
accompanied his sister-in-law Sarita Devi (DW-15) along with her
son Kundan. He boarded Mahabodhi Express on 15.12.2012 and
left for Aurangabad, Bihar from Platform No.9, New Delhi Railway
Station. Contention of the petitioner that the evidence adduced by
the petitioner to 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 in his native village on 16.12.2012 and DW-13-
Rajmohan, father-in-law of petitioner and DW-14-Punita Devi, wife
of petitioner who have deposed that the petitioner came to their
house in the native village Karmalahang along with Sarita Devi
(DW-15), would show that the petitioner was not present in Delhi on
the night of 16.12.2012. It was submitted that though the defence
has showed booked ticket details of Mahabodhi Express from New
Delhi to Aurangabad on 15.12.2012 to prove the departure of the
petitioner, this aspect was not appreciated by the court and the
petitioner’s plea of alibi was erroneously turned down.
24. To substantiate the plea of alibi, the petitioner has examined
DW-11-Chavinder, Auto Driver who has taken the petitioner and his
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family members from Anugrah Narayan Railway Station, DistrictAurangabad, Bihar to his native village, Karmalahang. DW-12-Sarju
Singh, DW-13-Rajmohan, father-in-law of petitioner and DW-14-wife
of the petitioner have spoken about the presence of petitioner in the
village. DW-15-Sister-in-law of petitioner whom the petitioner claims
had accompanied her on 15.12.2012. Considering the evidence of
DWs 12, 14 and 15 in Para (256), this Court has observed that DWs
12, 14 and 15 are all relatives of accused Akshay Kumar Singh alias
Thakur and that as observed by both the courts, they tried to wriggle
the petitioner out of the messy situation as is the natural instinct of
the family members.
25. The plea of alibi taken by the petitioner-accused and the
evidence adduced by the petitioner has been well-considered by
this Court in Paras (247) to (269). Upon appreciation of evidence,
this Court affirmed the findings of the trial court and the High Court
rejecting the plea of alibi and held that plea of alibi taken by the
petitioner is an afterthought. We do not find any error apparent on
the face of the record in consideration of evidence and rejection of
the plea of alibi. The appreciation of evidence in rejecting the plea of
alibi does not suffer from any error apparent on the face of the
record and this cannot be urged as a ground for review.
16
26. The next contention urged by the petitioner is the use of iron
rod and absence of injury to the uterus on the alleged insertion of
the iron rod in the private parts of the victim. Elaborate submissions
were made 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) and the said findings thereon supported by the
opinion of the medical expert do not suffer from any error.
27. The other contentions viz. (i) CCTV footage of Hotel Delhi
Airport was not properly examined; (ii) the bus bearing registration
No.DL-1PC-0149 was falsely implicated; (iii) PW-81-owner of the
bus was in judicial custody for six months before his examination in
the court and he was so detained in custody only to bring pressure
upon him to depose in favour of the prosecution; and (iv) the
petitioner-accused was photographed earlier and the same was
shown to PW-1 to enable him to identify the petitioner-accused in
the test identification parade. These contentions and other
contentions assailing the case of the prosecution were all raised
earlier and upon consideration of evidence, the same were rejected
by this Court. The review petition is not for re-hearing of the appeal
on reappreciation of the evidence over and over again. A party is
17
not entitled to seek review of the judgment merely for the purpose of
rehearing of the appeal and a fresh decision.
28. On the question of award of death sentence, the Court has
considered the aggravating and mitigating circumstances. In Paras
(322) to (368) and (511) to (518) of the judgment, while considering
the question of death sentence, opportunity was granted to the
petitioner accused and also other accused to file their affidavits as
to their family background, criminal antecedents, possibility of
reformation and such other relevant factors. The petitioner accused
through his counsel, Mr. A.P. Singh has filed an affidavit stating his
family background and stating that he has no criminal antecedent
and that his case is not falling under “the rarest of rare cases” to
affirm the death sentence, which contention was considered and
rejected. The aggravating and mitigating circumstance and the
affidavit filed by the petitioner was considered in detail in Para
(324). The contention urged by the counsel for the parties and
learned amicus curiae were considered in paras (327) to (368) and
(511) to (518) of the judgment and the court observed that the
background and family circumstances cannot be taken as the
mitigating circumstances. Considering the manner in which the
offence was committed, in the judgment dated 05.05.2017, this
Court held that the case is falling within “the rarest of rare cases”.
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We do not find that these findings suffer from any error apparent on
the face of the record. The mitigating circumstances elaborated
upon by the defence by way of highlighting the comparatively young
age of the convicts, their socio-economic background, their
unblemished antecedents and their chances of reformation, fade
into insignificance. In light of the aggravating circumstances and
considering that the case falls within the 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 several other Latin American countries and Australian States,
the same contentions 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 (NCT of 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 dismissed as
having no merit, on 09.07.2018 Mukesh v. State (NCT of Delhi)
(2018) 8 SCC 149. The court observed that the submissions urged
by the other accused were already considered while delivering the
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judgment and were rejected. The same points were earlier raised in
the review petitions filed by other co-accused. The grounds raised in
the present review petition are almost repetition of the arguments
raised in the earlier review petitions which were rejected and in our
view, cannot be raised repeatedly.
31. We do not find any error apparent on the face of the record in
the appreciation of evidence or the findings of the judgment dated
05.05.2017. None of the grounds raised in the review petition call
for review of the judgment dated 05.05.2017. The review petition is
dismissed.
..……………………..J.
[R. BANUMATHI]
.………………………..J.
[ASHOK BHUSHAN]
....……………………..J.
[A. S. BOPANNA]
New Delhi;
December 18, 2019.
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
REVIEW PETITION (CRIMINAL) D NO.44603 OF 2019
IN
CRIMINAL APPEAL NOS.609-610 OF 2017
AKSHAY KUMAR SINGH ...Petitioner
VERSUS
STATE (NCT OF DELHI) …Respondent
J U D G M E N T
R. BANUMATHI, J.
This Review Petition has been preferred by the petitioneraccused Akshay Kumar Singh who was the cleaner of the bus to
review the judgment dated 05.05.2017 passed by this Court in
Criminal Appeal Nos.609-610 of 2017 in and by which this Court
confirmed the conviction and death penalty imposed upon the
petitioner by the trial court as well as by the High Court.
2. In the evening of 16.12.2012, the prosecutrix (since
deceased) had gone for a movie with her friend, PW-1. At about
08:45 pm, both the prosecutrix and PW-1 left the movie theatre and
reached Munirka bus stand and they boarded the bus bearing
1
registration No. DL-1PC-0149. This bus was being driven by
accused Ram Singh (since deceased) and the petitioner-Akshay
Kumar Singh @ Thakur was the helper thereof. The accused
misbehaved with the prosecutrix and have committed gang rape of
the prosecutrix in the moving bus. They also committed unnatural
offence and inserted iron rod in the private parts of the prosecutrix.
The accused persons had beaten up PW-1 with iron rods and his
clothes were torn off. The accused also took away all the
belongings of the prosecutrix and PW-1 and thereafter, threw the
prosecutrix and PW-1 in a naked/semi naked condition from the
moving bus. The prosecutrix was treated at Safdarjung Hospital,
Delhi where her three dying declarations were recorded. Since the
condition of the prosecutrix became critical, she was shifted for
further treatment on 27.12.2012 to Mt. Elizabeth Hospital,
Singapore where, she died on 29.12.2012.
3. The trial court held that the complicity and guilt of the accused
were proved and convicted the petitioner and other accused under
Sections 120-B IPC, 376 (2)(g) read with Section 120-B IPC, 377
read with 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, 302 read with Section 120-B IPC, 307 read with Section 120-B
2
IPC, 412 and 201 read with Section 120-B IPC and inter alia
imposed death penalty upon them. Death penalty and other
sentence of imprisonment imposed upon them was confirmed by
the High Court. The accused had filed Criminal Appeal Nos.609-610
of 2017 before this Court.
4. Criminal appeal filed by the petitioner had earlier been
dismissed by this Court vide its judgment dated 05.05.2017 in
Mukesh and another v. State (NCT of Delhi) and others (2017) 6
SCC 1 on the basis of the following evidence which firmly
established the presence of the petitioner at the scene of the
incident and his involvement in the commission of rape on the
prosecutrix :-
(i) evidence of PW-1/injured eye-witness who spoke about the
occurrence in the bus; PW-1 identified the petitioner in the TIP
conducted on 26.12.2012 as one of the persons who came out of the
driver’s cabin from the bus and started abusing PW-1 and later, took
the prosecutrix to the back side of the bus and raped her;
(ii) three dying declarations of the prosecutrix of which, in the second
dying declaration (ExPW27/A), prosecutrix stated the incident in
detail and that the accused persons were calling “Ram Singh,
Thakur, Raju, Mukesh, Pawan and Vinay and in the third dying
declaration, the prosecutrix wrote the names of the accused “Ram
Singh, Mukesh, Vinay, Akshay, Vipin, Raju” including petitionerAkshay Kumar Singh and other accused;
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(iii) evidence of PW-81-Dinesh Yadav, owner of the bus in which he has
stated that accused Ram Singh was the driver and petitioner was the
helper in the bus in which the incident occurred;
(iv) Ex.PW71/C, report of PW-71-Dr. Ashith B. Acharaya who opined that
one bite mark found on the prosecutrix could have been possibly
caused by the petitioner; three other bite 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 the behest of petitioner
matched with the DNA profile of the prosecutrix; another set of DNA
profile generated from jeans pant of the petitioner matched with the
DNA profile of PW-1 and DNA profile generated from breast swab of
the victim which was found consistent with the DNA profile of the
blood of the petitioner;
(vi) recovery of metro card and silver ring of PW-1 recovered at the
behest of the petitioner and identified by PW-1.
5. We have heard Mr. A.P. Singh, learned counsel appearing for
the 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 the
various grounds urged in the review petition and prayed for review
of the judgment. The learned Solicitor General Mr. Tushar Mehta
submitted that the evidence adduced by the prosecution and the
defence plea has been considered threadbare both by the trial
court, High Court and also by this Court. The learned Solicitor
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General submitted that upon appreciation of evidence, the High
Court and the Supreme Court upheld the findings as to the guilt of
the accused and also the sentence. The learned Solicitor General
also submitted that the very same grounds were raised in the review
petition by the co-accused and the same was dismissed by this
Court vide judgments in Mukesh v. State (NCT of Delhi) (2018) 8
SCC 149 and Vinay Sharma and another v. State (NCT of Delhi)
and others (2018) 8 SCC 186.
7. In this review petition, the petitioner prays for review of the
judgment dated 05.05.2017. In the review petition before us, the
petitioner has again sought to assail the merits of the prosecution
case and the findings rendered thereon which cannot be permitted.
8. It is no longer res integra that scope of review is limited and
review cannot be entertained except in cases of error apparent on
the face of the record. Article 137 of the Constitution of India
empowers the Supreme Court to review any judgment pronounced
or made, subject, of course, to the provisions of any law made by
the Parliament or any rule made under Article 145 of the
Constitution of India. Order XLVII Rule 1 of Supreme Court Rules,
2013 dealing with review reads as follows:-
“1. The Court may review its judgment or order, but no application for
review will be entertained in a civil proceeding except on the ground
5
mentioned in Order 47 Rule 1 of the Code, and in a criminal
proceeding except on the ground of an error apparent on the face of
the record.”
As per the Supreme Court Rules, review in the criminal proceedings
is permissible only on the ground of error apparent on the face of
the record.
9. The jurisdiction of this Court under Article 137 of the
Constitution of India has been clearly stated in Sow Chandra Kante
and Another v. Sheikh Habib (1975) 1 SCC 674, wherein this Court
held as under:-
“A review of a judgment is a serious step and reluctant resort to it is
proper only where a glaring omission or patent mistake or like grave
error has crept in earlier by judicial fallibility. A mere repetition through
different counsel of old and overruled arguments, a second trip over
ineffectually covered ground or minor mistakes of inconsequential
import are obviously insufficient.”
10. Review is a not a rehearing of the appeal over again. In a
review petition, it is not for the Court to re-appreciate the evidence
and reach a different conclusion. The scope of review jurisdiction
has been elaborately considered by this Court in number of cases
and the well settled principles have been reiterated time and again.
In Kamlesh Verma v. Mayawati and Others (2013) 8 SCC 320, the
Supreme Court held as under:-
6
“17. In a review petition, it is not open to the Court to reappreciate the
evidence and reach a different conclusion, even if that is possible.
Conclusion arrived at on appreciation of evidence cannot be assailed in
a review petition unless it is shown that there is an error apparent on the
face of the record or for some reason akin thereto. This Court in Kerala
SEB v. Hitech Electrothermics & Hydropower Ltd. (2005) 6 SCC 654
held as under: (SCC p. 656, para 10)
“10. … In a review petition it is not open to this Court to
reappreciate the evidence and reach a different conclusion, even
if that is possible. The learned counsel for the Board at best
sought to impress us that the correspondence exchanged
between the parties did not support the conclusion reached by
this Court. We are afraid such a submission cannot be permitted
to be advanced in a review petition. The appreciation of evidence
on record is fully within the domain of the appellate court. If on
appreciation of the evidence produced, the court records a finding
of fact and reaches a conclusion, that conclusion cannot be
assailed in a review petition unless it is shown that there is an
error apparent on the face of the record or for some reason akin
thereto. It has not been contended before us that there is any
error apparent on the face of the record. To permit the review
petitioner to argue on a question of appreciation of evidence
would amount to converting a review petition into an appeal in
disguise.”
11. Considering the scope of review under Article 137 of the
Constitution of India and observing that normally in a criminal
proceeding, review applications cannot be entertained except on
the ground of error apparent on the face of the record, in Vikram
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Singh alias Vicky Walia and Another v. State of Punjab and Another
(2017) 8 SCC 518, the Supreme Court held as under:-
“23. In view of the above, it is clear that scope, ambit and parameters of
review jurisdiction are well defined. Normally in a criminal proceeding,
review applications cannot be entertained except on the ground of error
apparent on the face of the record. Further, the power given to this Court
under Article 137 is wider and in an appropriate case can be exercised to
mitigate a manifest injustice. By review application an applicant cannot
be allowed to reargue the appeal on the grounds which were urged at
the time of the hearing of the criminal appeal. Even if the applicant
succeeds in establishing that there may be another view possible on the
conviction or sentence of the accused that is not a sufficient ground for
review. This Court shall exercise its jurisdiction to review only when a
glaring omission or patent mistake has crept in the earlier decision due
to judicial fallibility. There has to be an error apparent on the face of the
record leading to miscarriage of justice to exercise the review jurisdiction
under Article 137 read with Order 40 Rule 1. There has to be a material
error manifest on the face of the record with results in the miscarriage of
justice.”
12. A review of the judgment is permitted only when it is shown
that 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 Supreme Court Rules, 1996, the Constitution Bench of the
Supreme Court observed that Order XL Rule 1 affords the wider set
of grounds for review of orders in civil proceedings, but limits the
8
grounds vis-à-vis criminal proceedings to errors apparent on the
face of the judgment.
13. Applying the above parameters of the review jurisdiction, it is
to be seen whether the petitioner has made out any ground
indicating error apparent on the face of the record warranting review
of our judgment dated 05.05.2017.
14. Even at the outset, it is to be pointed out that the grounds
raised by the petitioner-accused in this review petition are identical
to that of the grounds raised by the co-accused in their review
petitions. Those grounds urged by the co-accused in their review
petitions were considered and rejected by this Court in Mukesh v.
State (NCT of Delhi) (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 raised
by the petitioner in this review petition viz., (i) futility of awarding
death sentence 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 is short anyhow and everyone is aware of what is happening in
Delhi NCR in this regard and while so, there is no reason why death
penalty should be awarded. According to the petitioner, in view of
the above, he should be spared of the death sentence. We find it
9
unfortunate that such grounds have been raised in the matter as
serious as the present case.
16. The petitioner has also raised the plea that death penalty is
the 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
capital punishment by stating that only the poor and downtrodden
are more likely to be sentenced with death sentence. Such general
contentions put forth against the capital punishment cannot be gone
into in this review petition.
17. The petitioner has raised the plea as to the lack of
professional skills of the investigating agency and the need for an
unbiased investigation. In the petition, general allegations have
been made against the investigating agency alleging extortion of
confession and then create evidence to falsely implicate the
accused. The grounds raised in the petition alleging improper
investigation and manipulation of evidence are too general and not
specific. It is to be pointed out that each and every point raised by
the petitioner-accused assailing the course of investigation was well
considered by the trial court which we have gone through at the
10
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, the petitioner
has raised the same contention which was raised earlier that is,
according to the petitioner, only the first dying declaration
(Ex.PW49/A) recorded by PW-49-Dr. Rashmi Ahuja where the
prosecutrix has neither named nor mentioned the name of any of
the accused persons, has to be relied upon. Contention of the
petitioner is that the second dying declaration (Ex.PW27/A)
recorded by PW-24-Dr. Usha Chaturvedi, SDM on 21.12.2012 could
not have been recorded as the victim was under the life support and
she could not have given four pages of dying declaration. Further
contention of the petitioner is that the third dying declaration
recorded by PW-30-Pawan Kumar, Metropolitan Magistrate where
the victim has named the petitioner and other accused was a
tutored version and cannot be relied upon.
19. Mr. A.P. Singh, learned counsel appearing for the petitioneraccused has contended that investigation in the present case is
flawed and unreliable. It was submitted that insofar as the recording
of the statement of witnesses under Section 161 Cr.P.C., manner of
arrest of the accused, conduct of test identification parade are
11
doubtful. Various contentions assailing the course of investigation
have been raised both before the trial court as well as before the
High Court and this Court which have been considered threadbare
and were rejected. We do not find any merit in the contention of the
learned counsel for the petitioner assailing the investigation.
20. The learned counsel submitted that because of the media
pressure, the petitioner and other accused have been falsely
implicated. Taking us through the averments made in para 3(f) of
the review petition, the learned counsel submitted that PW-1-
Awninder Pratap Singh had taken heavy amount as bribe and this
has been highlighted in some of the news channels which affect the
credibility of the evidence of PW-1. It was submitted that in this
regard, Heera Lal Gupta, father of co-accused Pawan Gupta had
filed a complaint vide Diary No.26A on 02.11.2019 before SHO, PS
R.K. Puram, Sector-12, New Delhi and also before Deputy
Commissioner of Police, Vasant Vihar. The averments made in
para 3(f) of the review petition are subsequent events unsupported
by any material. In a criminal case, culpability or otherwise of the
accused are based upon appreciation of evidence adduced by the
prosecution and also the evidence adduced by the defence. The
materials or the news emerging in the media and press as also the
12
news channels cannot be taken note of in arriving at a conclusion
on the culpability of the accused or to test credibility of the witness.
Such events cannot be urged as a ground for review.
21. The learned counsel appearing for the petitioner-accused has
taken us through the averments made in para 3(g) of the review
petition and also the clippings of book titled “Black Warrant” written
by Sunil Gupta, a former law officer of Central Jail, Tihar, Delhi who
served long time in Tihar jail. The learned counsel submitted that in
the book written by the above officer, the officer has expressed his
opinion that Ram 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 is only his opinion which is not supported by any
material. If the former law officer had any doubt regarding death of
Ram Singh, the said officer could 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 High Court or before the Supreme
Court. The opinion of the said officer Sunil Gupta which is not
supported by any material, cannot be a ground for reviewing our
judgment.
22. As pointed out in the judgment, there were three dying
declarations recorded from the prosecutrix:-
13
(i) in the first dying declaration (Ex.PW-49/A) recorded by Dr. Rashmi
Ahuja (PW-49) on 16.12.2012 at 11.15 pm, the prosecutrix has
stated that more than two men committed rape on her after which,
she does not remember the sexual intercourse; the prosecutrix also
stated that she was subjected to unnatural sex and she was bitten
over her lips, cheeks and breast;
(ii) in the second dying declaration (Ex.PW-27/A) recorded by PW-27-
Usha Chaturvedi, SDM on 21.12.2012 at 09.00 pm, the prosecutrix
has narrated the entire incident in great detail, specifying the role of
each of the accused, rape committed by number of persons, insertion
of iron rod in her private parts, description of the bus, robbery
committed and throwing of both the victims out of the moving bus in
naked condition. Prosecutrix also stated that the accused were
calling each other “Ram Singh, Thakur, Raju, Mukesh, Pawan and
Vinay”; and
(iii) in the third dying declaration (Ex.PW-30/D) recorded on 25.12.2012
at 1.00 p.m by PW-30-Pawan Kumar, Metropolitan Magistrate by
putting multiple choice questions to the victim and getting answers by
gestures and writing. While giving third dying declaration, prosecutrix
revealed the names of the accused by writing in her own handwriting
viz. “Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju”.
This Court considered the three dying declarations in the light of the
well-settled principles and found that the multiple dying declarations
inspire the confidence of the Court and are credible. The above
contentions were earlier raised and were considered by this Court in
paras (148) to (164), (186) to (192) and (395) to (417) of the
judgment and rejected. While so, the petitioner cannot raise the
same plea.
14
23. So far as the plea of alibi, contention of the petitioner is that
he was not present in Delhi on the night of 16.12.2012 and that he
accompanied his sister-in-law Sarita Devi (DW-15) along with her
son Kundan. He boarded Mahabodhi Express on 15.12.2012 and
left for Aurangabad, Bihar from Platform No.9, New Delhi Railway
Station. Contention of the petitioner that the evidence adduced by
the petitioner to 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 in his native village on 16.12.2012 and DW-13-
Rajmohan, father-in-law of petitioner and DW-14-Punita Devi, wife
of petitioner who have deposed that the petitioner came to their
house in the native village Karmalahang along with Sarita Devi
(DW-15), would show that the petitioner was not present in Delhi on
the night of 16.12.2012. It was submitted that though the defence
has showed booked ticket details of Mahabodhi Express from New
Delhi to Aurangabad on 15.12.2012 to prove the departure of the
petitioner, this aspect was not appreciated by the court and the
petitioner’s plea of alibi was erroneously turned down.
24. To substantiate the plea of alibi, the petitioner has examined
DW-11-Chavinder, Auto Driver who has taken the petitioner and his
15
family members from Anugrah Narayan Railway Station, DistrictAurangabad, Bihar to his native village, Karmalahang. DW-12-Sarju
Singh, DW-13-Rajmohan, father-in-law of petitioner and DW-14-wife
of the petitioner have spoken about the presence of petitioner in the
village. DW-15-Sister-in-law of petitioner whom the petitioner claims
had accompanied her on 15.12.2012. Considering the evidence of
DWs 12, 14 and 15 in Para (256), this Court has observed that DWs
12, 14 and 15 are all relatives of accused Akshay Kumar Singh alias
Thakur and that as observed by both the courts, they tried to wriggle
the petitioner out of the messy situation as is the natural instinct of
the family members.
25. The plea of alibi taken by the petitioner-accused and the
evidence adduced by the petitioner has been well-considered by
this Court in Paras (247) to (269). Upon appreciation of evidence,
this Court affirmed the findings of the trial court and the High Court
rejecting the plea of alibi and held that plea of alibi taken by the
petitioner is an afterthought. We do not find any error apparent on
the face of the record in consideration of evidence and rejection of
the plea of alibi. The appreciation of evidence in rejecting the plea of
alibi does not suffer from any error apparent on the face of the
record and this cannot be urged as a ground for review.
16
26. The next contention urged by the petitioner is the use of iron
rod and absence of injury to the uterus on the alleged insertion of
the iron rod in the private parts of the victim. Elaborate submissions
were made 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) and the said findings thereon supported by the
opinion of the medical expert do not suffer from any error.
27. The other contentions viz. (i) CCTV footage of Hotel Delhi
Airport was not properly examined; (ii) the bus bearing registration
No.DL-1PC-0149 was falsely implicated; (iii) PW-81-owner of the
bus was in judicial custody for six months before his examination in
the court and he was so detained in custody only to bring pressure
upon him to depose in favour of the prosecution; and (iv) the
petitioner-accused was photographed earlier and the same was
shown to PW-1 to enable him to identify the petitioner-accused in
the test identification parade. These contentions and other
contentions assailing the case of the prosecution were all raised
earlier and upon consideration of evidence, the same were rejected
by this Court. The review petition is not for re-hearing of the appeal
on reappreciation of the evidence over and over again. A party is
17
not entitled to seek review of the judgment merely for the purpose of
rehearing of the appeal and a fresh decision.
28. On the question of award of death sentence, the Court has
considered the aggravating and mitigating circumstances. In Paras
(322) to (368) and (511) to (518) of the judgment, while considering
the question of death sentence, opportunity was granted to the
petitioner accused and also other accused to file their affidavits as
to their family background, criminal antecedents, possibility of
reformation and such other relevant factors. The petitioner accused
through his counsel, Mr. A.P. Singh has filed an affidavit stating his
family background and stating that he has no criminal antecedent
and that his case is not falling under “the rarest of rare cases” to
affirm the death sentence, which contention was considered and
rejected. The aggravating and mitigating circumstance and the
affidavit filed by the petitioner was considered in detail in Para
(324). The contention urged by the counsel for the parties and
learned amicus curiae were considered in paras (327) to (368) and
(511) to (518) of the judgment and the court observed that the
background and family circumstances cannot be taken as the
mitigating circumstances. Considering the manner in which the
offence was committed, in the judgment dated 05.05.2017, this
Court held that the case is falling within “the rarest of rare cases”.
18
We do not find that these findings suffer from any error apparent on
the face of the record. The mitigating circumstances elaborated
upon by the defence by way of highlighting the comparatively young
age of the convicts, their socio-economic background, their
unblemished antecedents and their chances of reformation, fade
into insignificance. In light of the aggravating circumstances and
considering that the case falls within the 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 several other Latin American countries and Australian States,
the same contentions 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 (NCT of 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 dismissed as
having no merit, on 09.07.2018 Mukesh v. State (NCT of Delhi)
(2018) 8 SCC 149. The court observed that the submissions urged
by the other accused were already considered while delivering the
19
judgment and were rejected. The same points were earlier raised in
the review petitions filed by other co-accused. The grounds raised in
the present review petition are almost repetition of the arguments
raised in the earlier review petitions which were rejected and in our
view, cannot be raised repeatedly.
31. We do not find any error apparent on the face of the record in
the appreciation of evidence or the findings of the judgment dated
05.05.2017. None of the grounds raised in the review petition call
for review of the judgment dated 05.05.2017. The review petition is
dismissed.
..……………………..J.
[R. BANUMATHI]
.………………………..J.
[ASHOK BHUSHAN]
....……………………..J.
[A. S. BOPANNA]
New Delhi;
December 18, 2019.
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