1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURICTION
REVIEW PETITION (CRL.) NOS.671673 OF 2017
IN
CRIMINAL APPEAL NOS.608 & 609610 OF 2017
VINAY SHARMA & ANR. ... PETITIONERS
VERSUS
STATE OF NCT OF DELHI & ORS. ... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
These review petitions have been filed by two
applicants Vinay Sharmaaccused No.1 and Pawan Kumar
Guptaaccused No.2 to review the judgment of this Court
dated 05.05.2017 by which judgment this Court had
dismissed the criminal appeals filed by the petitioners
challenging the order of the High Court confirming the
death reference and dismissing the criminal appeals filed
2
by the petitioners against the order of conviction and
award of death sentence.
2. Both the petitioners were tried for rape and murder
of a 23 years' age lady Nirbhaya (changed name). The
trial court convicted the petitioners along with three
others and awarded death sentence to all the four
accused. Death reference No.6 of 2013 Was sent by the
trial court to the High Court. Separate criminal appeals
were also filed by the petitioners challenging the
judgment of the trial court. Delhi High Court vide its
judgment dated 13.03.2014 confirmed the death penalty to
all the four convicts including petitioners, Vinay
Sharma, appellant No.1 in Criminal Appeal No. 609 of
2017, Pawan Kumar Gupta, appellant No.1 in Criminal
Appeal Nos.608 of 2017. The appeals were dismissed by the
judgment of this Court dated 05.05.2017. The petitioners
aggrieved by the said judgment dated 05.05.2017 by which
all the appeals were dismissed have filed these review
petitions praying for reviewing the judgment dated
05.05.2017.
3
3. We have heard the learned counsel, Shri A.P. Singh
appearing for the petitioners and Shri Sidharth Luthra,
learned senior counsel for the State.
4. Shri A.P. Singh learned counsel for the peititoners
in support of the review petitions has urged several
grounds. Shri Singh submits that death penalty in India
needs to be abolished. He submits that there are several
reasons for opposing death penalty which broadly
speaking, they fall under two categories, moral and
practical. This also goes against the principle of nonviolence
that India has advocated for decades. In the
year 1966, the Bill introducing death penalty abolition
was passed by the House of Parliament in England. He
further submitted that in a large number of countries
death penalty has been abolished. In his submission he
has referred the names of several Latin American
countries and several Australian States.
5. Apart from above, several other contentions have been
advanced by Shri A.P. Singh which we proceed to note in
seriatim. Shri Singh submits that investigation and trial
4
has been carried out with the sole purpose of survival of
the prosecuting agency. The investigation is engaged in
maladroit effort to book the vulnerable and the innocent
so as to disguise and cover there inefficiency to catch
the real culprits. The political class is using
investigating agencies as tools for partisan political
objective.
6. PW.1, during his crossexamination was confronted
with his statement Ex.PW1/A qua the factum of not
disclosing the use of iron rod, the description of Bus,
the name of assailants either in MLC Ex.PW51/A or in his
complaint Ex.PW1/A. The Bus, Ex.P1 has been falsely
implicated in the present case. CCTV footage was not
properly examined to check all possible Buses plying on
the said route. The Bus was taken to Tyagraj Stadium
instead of the Police Station to avoid the media and to
facilitate the planting of evidence.
7. That the three dying declarations have been contrived
and deserved to be kept out of consideration and the
dying declarations do not inspire confidence for
5
variations in them relating to the number of assailants,
the description of Bus, the identity of accused etc. If
at all any dying declaration is to be relied on, it is
first dying declaration made on 16.12.2012 and recorded
by PW49, Dr. Rashmi Ahuja, which dying declaration only
states that there were 4 to 5 persons in the Bus.
8. In the statement recorded in MLC Ex.PW49/A
prosecutrix has neither named any of the accused nor
mentioned the factum of iron rod being used by the
accused persons. The prosecutrix could not have given
such a lengthy dying declaration on 21.12.2012 when she
was continuously on morphine. Third dying declaration
recorded by the Metropolitan Magistrate, PW30, on
25.12.2012, through gesture and writings is controverted
by allegations of false medical fitness certificate and
absence of videography. The use of iron rod was not
mentioned by PW1 in his statement. Had the iron rod
been really inserted through the vagina, it would have
first destroyed the uterus before the intestines were
pulled out. There were no rod related injuries in her
6
uterus and medical science too does not assist the
prosecution in their claim.
9. The DNA test can not be treated as accurate, since
there was blood transfusion as the prosecutrix required
blood and when there is mixing of blood, the
DNA profile is likely to differ.
10. The High Court has failed to appreciate that
petitioner No.1, Vinay Sharma on the date of incident and
time was in a musical programme arranged by S.C.C. unit
of Church in his locality and he was there from 8.15 p.m.
to 11/12 p.m. on 16.12.2012. The presence of petitioner
No.1 in musical show has been witnessed by defence
witnesses who had deposed before the Court. Ram Babu,DW10
had also videographed the show from the mobile phone
of petitioner No.1 which was produced before the trial
court.
11. The application for ossification test submitted by
petitioner No.1 was wrongly turned down by the trial
court. The petitioner was actually born on 01.03.1995 but
his date of birth given by his father was 01.03.1994
7
which was only for the purpose of getting him admitted in
the MCD School. The petitioner was only 17 years 8 months
and 15 days old at the time of incident.
12. The real date of birth of petitioner No.2 is
08.10.1996 and he was also minor on the date of incident.
The petitioners were not habitual offenders. Number of
dacoits have surrendered for the last several decades and
have reformed themselves.
13. Shri Sidharth Luthra, learned senior counsel
appearing for the State refuting the submissions of the
petitioners submitted that the petitioners already in a
long hearing of the appeals before this Court have made
all possible submissions which have been considered by
this Court while deciding the appeals on 05.05.2017, the
review petition is nothing but an effort by the
petitioners to reargue the appeals on merits which is
not permissible under the law. No grounds have been made
out to consider the review petitions. In so far as the
submission of the learned counsel for the petitioners
that the death penalty be abolished in India, Shri Luthra
8
submits that the said submission need not to be gone into
in these review petitions. It is submitted that death
penalty has already been upheld by this Court by the
Constitution Bench of this Court in Bachan Singh vs.
State of Punjab, (1980) 2 SCC 684. He submits that death
penalty being still in the statute book it is not open
for the petitioners to argue that the death penalty be
abolished in this country. The abolition of the death
penalty is a legislative function and unless the
Parliament passes an amending Act it is not for the
Courts to consider the said submission.
14. With regard to the submissions of the petitioners
that investigation was faulty and prosecuting agencies
had roped in the petitioners, it is submitted that
prosecution was scientifically carried out in efficient
manner which has also been noted by this Court and any
person against the prosecution are unjustified and have
to be ignored.
15. The evidence of PW1 and all infirmities which are
sought to be pointed out in these review petitions have
9
already been considered and gone into by this Court.
Learned counsel has referred to in paragraphs 65 to 97
and 425 to 434 of the judgment where this Court has
thoroughly considered all submissions regarding evidence
of PW1 and this Court has rejected the inconsistencies,
shortcomings and omissions as being pointed by the
petitioners. Coming to the submission that the Bus, P1
has been falsely implicated, Shri Luthra submits that
apart from CCTV footage where Bus was noticed twice
passing in front of the hotel, there were other
evidences, namely finger prints, wound stains and other
objects obtained from the Bus which proved that the Bus
was involved in the incident. Shri Luthra has referred to
paragraphs 104 and 105 where this argument has been noted
and rejected by this Court.
16. On the submissions raised by the learned counsel for
the petitioners regarding dying declarations, Shri Luthra
submits that all arguments pertaining to dying
declarations have been considered and dealt with by this
Court in paragraphs 148 to 192 of the judgment dated
10
05.05.2017 and petitioners cannot be allowed to reagitate
the same which have already been considered and rejected
by this Court. With regard to first dying declaration
which was the case history recorded by Dr. Rashmi Ahuja,
this Court has considered all aspects and had already
held that there was no infirmity in noticing the facts as
could be disclosed by the prosecutrix at that time when
she had undergone traumatic experience immediately
before.
17. The nonmention of use of iron rod in the MLC or PW1's
statement has also been considered by this Court and
this Court had held and found use of iron rod from the
evidence. The statement of PW1 pertaining to use of iron
rod to injure the prosecutrix has also been considered
and noticed by this Court. The DNA reports have been
examined in detail by this Court including blood
transfusion which has also been considered in paragraphs
233234. With regard to alibi of Vinay Sharma that he, at
the relevant time, was in a musical programme, this Court
in its judgment dated 05.05.2017 has considered and
11
rejected the plea of alibi after consideration of Defence
evidence. The same argument cannot be allowed to be
raised in the review petition. In so far as the argument
that petitioner No.1, Vinay Sharma was a juvenile at the
time of the commission of the offence, Shri Luthra
mentioned order of the trial court dated 10.01.2013
which mentioned that age verification report of Vinay and
Pawan have been received and they do not dispute the age
verification report filed by the IO. The prosecuiton has
placed the certified copy of the admission register of
the first attended school along with the certified copy
of the admission form of the first class of accusedVinay
Sharma and trial court after considering all evidences
had held that Vinay Sharma was more than 18 years of age
at the time of commission of offence. On the claim that
Pawan was a juvenile, Shri Luthra referred to the order
dated 10.01.2013 where age verification report of Pawan
has been received and also certified copies had been
filed on record. The report had referred to the written
statement of the parents of both these accused where they
have confirmed the age of their wards. There was no
12
infirmity in the trial court taking decision that both
were major and the trial court proceeded accordingly.
There is no substance in the submission raised by the
learned counsel for the petitioners.
18. We have considered the submissions of the parties and
perused the records.
19. Before we enter into the submissions raised in these
review petitions, it is useful to recapitulate the scope
and grounds available for exercise of jurisdiction by
this Court under Article 137. Order XLVII Rule 1 of the
Supreme Court Rules, 2013 dealing with review is as
follows:
“i. The Court may review its judgment or
order, but no application for review will be
entertained in a civil proceeding except on
the ground mentioned in Order XLVII, rule 1 of
the Code, and in a criminal proceeding except
on the ground of an error apparent on the face
of the record.”
20. An application to review a judgment is not to be
lightly entertained and this Court could exercise its
review jurisdiction only when those grounds are made out
13
as provided in Order XLVII Rule 1 of the Supreme Court
Rules, 2013 framed under Article 145 of the Constitution
of India. This Court in Sow Chandra Kante and another v.
Sheikh Habib, (1975) 1 SCC 674 speaking through Justice
V.R. Krishna Iyer on review has stated the following in
para 10:
“10. A review of a judgment is a serious step
and reluctant resort to it is proper only
where a glaring omission or patent mistake or
like grave error has crept in earlier by
judicial fallibility. A mere repetition,
through different counsel, of old and
overruled arguments, a second trip over
ineffectually covered ground or minor mistakes
of inconsequential import are obviously
insufficient.”
21. As per rule, review in a criminal proceeding is
permissible only on the ground of error apparent on the
face of the record. This Court in P.N. Eswara Iyer and
others v. Registrar, Supreme Court of India, (1980) 4
SCC 680 while examining the review jurisdiction of this
Court vis a vis criminal and civil proceedings had made
the following observations in paras 34 and 35:
“34. The rule, on its face, affords a wider
set of grounds for review for orders in civil
proceedings, but limits the ground visavis
14
criminal proceedings to “errors apparent on
the face of the record”. If at all, the
concern of the law to avoid judicial error
should be heightened when life or liberty is
in peril since civil penalties are often less
traumatic. So, it is reasonable to assume that
the framers of the rules could not have
intended a restrictive review over criminal
orders or judgments. It is likely to be the
other way about. Supposing an accused is
sentenced to death by the Supreme Court and
the “deceased” shows up in court and the court
discovers the tragic treachery of the recorded
testimony. Is the court helpless to review and
set aside the sentence of hanging? We think
not. The power to review is in Article 137 and
it is equally wide in all proceedings. The
rule merely canalises the flow from the
reservoir of power. The stream cannot stifle
the source. Moreover, the dynamics of
interpretation depend on the demand of the
context and the lexical limits of the test.
Here “record” means any material which is
already on record or may, with the permission
of the court, be brought on record. If justice
summons the Judges to allow a vital material
in, it becomes part of the record; and if
apparent error is there, correction becomes
necessitous.
35. The purpose is plain, the language is
elastic and interpretation of a necessary
power must naturally be expansive. The
substantive power is derived from Article 137
and is as wide for criminal as for civil
proceedings. Even the difference in
phraseology in the rule (Order 40 Rule 2)
must, therefore, be read to encompass the same
area and not to engraft an artificial
divergence productive of anomaly. If the
expression “record” is read to mean, in its
15
semantic sweep, any material even later
brought on record, with the leave of the
court, it will embrace subsequent events, new
light and other grounds which we find in Order
47 Rule 1, CPC. We see no insuperable
difficulty in equating the area in civil and
criminal proceedings when review power is
invoked from the same source.”
22. The scope of review jurisdiction has been considered
by this Court in a number of cases where well settled
principles have been reiterated time and again. It is
sufficient to refer to judgment of this Court in Kamlesh
Verma vs. Mayawati and others (2013) 8 SCC 320, where
this Court has elaborately considered the scope of
review. In paras 17, 18, 20.1 and 20.2 following has been
laid down:
“17. In a review petition, it is not open to
the Court to reappreciate the evidence and
reach a different conclusion, even if that is
possible. Conclusion arrived at on
appreciation of evidence cannot be assailed in
a review petition unless it is shown that
there is an error apparent on the face of the
record or for some reason akin thereto. This
Court in Kerala SEB v. Hitech Electrothermics
& Hydropower Ltd. held as under: (SCC p. 656,
para 10)
“10. … In a review petition it is not open to
this Court to reappreciate the evidence and
16
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.”
18. Review is not rehearing of an original
matter. The power of review cannot be confused
with appellate power which enables a superior
court to correct all errors committed by a
subordinate court. A repetition of old and
overruled argument is not enough to reopen
concluded adjudications. This Court in Jain
Studios Ltd. v. Shin Satellite Public Co.
Ltd., held as under: (SCC pp. 504505, paras
1112)
“11. So far as the grievance of the applicant
on merits is concerned, the learned counsel
for the opponent is right in submitting that
virtually the applicant seeks the same relief
which had been sought at the time of arguing
the main matter and had been negatived. Once
17
such a prayer had been refused, no review
petition would lie which would convert
rehearing of the original matter. It is
settled law that the power of review cannot
be confused with appellate power which
enables a superior court to correct all
errors committed by a subordinate court. It
is not rehearing of an original matter. A
repetition of old and overruled argument is
not enough to reopen concluded adjudications.
The power of review can be exercised with
extreme care, caution and circumspection and
only in exceptional cases.
12. When a prayer to appoint an arbitrator by
the applicant herein had been made at the
time when the arbitration petition was heard
and was rejected, the same relief cannot be
sought by an indirect method by filing a
review petition. Such petition, in my
opinion, is in the nature of ‘second innings’
which is impermissible and unwarranted and
cannot be granted.””
20.1. When the review will be maintainable:
(i) Discovery of new and important matter or
evidence which, after the exercise of due
diligence, was not within knowledge of the
petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of
the record;
(iii) Any other sufficient reason.
The words “any other sufficient reason” have
been interpreted in Chhajju Ram v. Neki and
approved by this Court in Moran Mar Basselios
Catholicos v. Most Rev. Mar Poulose Athanasius
to mean “a reason sufficient on grounds at
18
least analogous to those specified in the
rule”. The same principles have been
reiterated in Union of India v. Sandur
Manganese & Iron Ores Ltd.
20.2. When the review will not be
maintainable:
(i) A repetition of old and overruled
argument is not enough to reopen concluded
adjudications.
(ii) Minor mistakes of inconsequential
import.
(iii) Review proceedings cannot be equated
with the original hearing of the case.
(iv) Review is not maintainable unless the
material error, manifest on the face of the
order, undermines its soundness or results in
miscarriage of justice.
(v) A review is by no means an appeal in
disguise whereby an erroneous decision is
reheard and corrected but lies only for
patent error.
(vi) The mere possibility of two views on the
subject cannot be a ground for review.
(vii) The error apparent on the face of the
record should not be an error which has to be
fished out and searched.
(viii) The appreciation of evidence on record
is fully within the domain of the appellate
court, it cannot be permitted to be advanced
in the review petition.
(ix) Review is not maintainable when the same
relief sought at the time of arguing the main
matter had been negatived.”
19
23. This very Bench speaking through one of us (Justice
Ashok Bhushan) had occasion to consider the ambit and
scope of the review Jurisdiction in a criminal proceeding
in Vikram Singh alias Vicky Walia and another vs. State
of Punjab and another (2017) 8 SCC 518. In para 23 of
the judgement following has been stated:
“23. In view of the above, it is clear that
scope, ambit and parameters of review
jurisdiction are well defined. Normally in a
criminal proceeding, review applications
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.”
20
24. We first take up the submission of Shri A.P. Singh
regarding the abolition of death penalty in this counrty.
The Constitution Bench of this Court in Bachan Singh
(supra) examined the constitutional validity of death
penalty as provided under Section 302 of IPC. After
elaborately considering the existence of death penalty in
the Penal Code, constitutional provisions of Articles 19
and 21, and international covenant on civil and criminal
rights, this court held that death penalty as contained
in Penal Code is constitutionally valid. In paragraph 132
following was held:
“132. To sum up, the question whether or not
death penalty serves any penological purpose
is a difficult, complex and intractable issue.
It has evoked strong, divergent views. For the
purpose of testing the constitutionality of
the impugned provision as to death penalty
in Section 302, Penal Code on the ground of
reasonableness in the light Of Articles 19 and
21 of the Constitution, it is not necessary
for us to express any categorical opinion, one
way or the other, as to which of these two
antithetical views, held by the Abolitionists
and Retentionists, is correct. It is
sufficient to say that the very fact that
persons of reason, learning and light are
rationally and deeply divided in their opinion
on this issue, is a ground among others, for
rejecting the petitioner's argument that
retention of death penalty in the impugned
21
provision, is totally devoid of reason and
purpose. If, notwithstanding the view of the
Abolitionists to the contrary, a very large
segment of people, the world over, including
sociologists, legislators, jurists, judges and
administrators still firmly believe in the
worth and necessity of capital punishment for
the protection of society, if in the
perspective of prevailing crime conditions in
India, contemporary public opinion channelized
through the people's representatives in
Parliament, has repeatedly in the last three
decades, rejected all attempts, including the
one made recently, to abolish or specifically
restrict the area of death penalty, if death
penalty is still a recognised legal sanction
for murder or some types of murder in most of
the civilised countries in the world, if the!
framers of the Indian Constitution were fully
aware as we shall presently show they were of
the existence of death penalty as punishment
for murder, under the Indian Penal Code, if
the 35th Report and subsequent Reports of the
Law Commission suggesting retention of death
penalty, and recommending revision of the
Criminal Procedure Code and the insertion of
the new Sections 235(2) and 354(3) in that
Code providing for presentence hearing and
sentencing procedure on conviction for murder
and other capital offences were before the
Parliament and presumably considered by it
when in 19721973 it took up revision of the
Code of 1898 and replaced it by the CrPC,
1973, it is not possible to hold that the
provision of death penalty as an alternative
punishment for murder, in Section 302, Penal
Code is unreasonable and not in the public
interest. We would, therefore, conclude that
the impugned provision in Section 302,
violates neither the letter or the ethos
of Article 19.”
22
25. The submission of Mr. Singh that death penalty has
been abolished by the Parliament of U.K. in the year 1966
and several Latin American countries and Australian
States have also abolished death penalty is no ground to
efface the death penalty from the statute book of our
country. So far the death penalty remains in the Penal
Code the Courts cannot be held to commit any illegality
in awarding death penalty in appropriate cases.
26. In view of the above, no ground to review judgment is
made out on the strength of the above submissions.
27. Now, coming to the submissions made by Shri Singh
attacking the investigation and prosecution agencies,
suffice it to say that submissions and arguments are
general in nature and not based on any substantial ground
so as to point out any such error in the trial so as to
furnish any ground to review any judgment.
28. The submission made by Shri Singh attacking the
evidence of PW1 sole eyewitness, who was also injured
23
in the incident need not to be considered in these review
petitions. All submissions impeaching evidence of PW1
were made when the appeals were heard on merit. This
Court had considered all submissions attacking the
evidence of PW1 in paragraphs 6597 and 425 to 434. This
Court after examining the relevant evidences had relied
on evidence of PW1. In the review petitions, petitioners
cannot ask the Court to rehear the appeals on merits
which submissions had already been noted, considered and
rejected.
29. The submission of Shri Singh that Bus Ex.P1, has
been falsely implicated is also stated to be rejected.
All these submissions were considered by this Court while
delivering the judgment in paragraphs 98107. This Court
has rejected the submission of the petitioners that it
was a case of plantation of Bus, the Bus was found to be
involved in the incident from the evidence on record.
30. Contention of Mr. V.K. Singh is that the bus No. DL 1
PC 0149 (Ext. P/1) has been falsely implicated and the
24
CCTV Footage cannot be relied upon and this aspect is not
properly considered by this Court. The exact points now
raised by Mr. Singh in para (M) of the review petition
were considered by this Court in paras (98) to (113) and
paras (435) to (439). In para (101), this Court has
referred to the evidence of PW76 Gautam Roy, HoD,
Computer Cell, Forensic Division who has examined the
CCTV Footage received by him in a Pen Drive in two sealed
parcels. In paras (98) to (113), this Court has referred
to the evidence regarding retrieval of CCTV Footage in
the presence of PW67 Pramod Kumar Jha, owner of the
hotel at Delhi Airport and the photographs taken thereon
to prove the involvement of the bus No. DL 1 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 considered the evidence of PW81, Dinesh
Yadav, owner of the bus and PW16 Rajeev Jakhmola,
Manager (Admn.) of Birla Vidya Niketan School, Pushp
Vihar who have stated that the bus No. DL 1 PC 0149 (Ext.
25
P/1) was routinely driven by Ram Singh (deceased accused)
and he was the driver of the bus.
32. Involvement of the bus No. DL 1 PC 0149 (Ext. P/1)
was also held to be substantiated by matching of DNA
profile of the material objects lifted from the bus No.
DL 1 PC 0149 (Ext. P/1) which were found consistent with
that of the victim and the complainant. In paras (431)
and (438), the same has been wellconsidered. Matching
of DNA profile developed from the articles seized from
the bus like ‘hair’ recovered from the third left row of
the bus and the bloodstained seat cover of the bus and
the bunch of hair recovered from the floor of the bus
with the DNA profile of the victim was held to be
unimpeachable evidence establishing the involvement of
the bus in the commission of the offence. The oral and
scientific evidence has been elaborately considered by
this Court in upholding the findings of the High Court as
to the involvement of the bus. The petitioner/accused
cannot reagitate the same point again.
26
33. Mr. Singh has inter alia made various submissions
regarding reliability of the three dying declarations:
(i) failure to disclose the names of any of the accused
in the first dying declaration (Ext.PW49/A) and
therefore, the second and third dying declarations are
tutored; (ii) the three dying declarations cannot be
relied upon due to variations and improvements; and (iii)
sudden appearance of the name of ‘Vipin’ (in the third
dying declaration) makes it doubtful and no explanation
is offered.
34. The victim made three dying declarations: (i)
statement recorded by PW49 Dr. Rashmi Ahuja immediately
after the victim was admitted to the hospital; (ii)
Dying declaration (Ex.PW27/A) recorded by PW27 SDM Usha
Chaturvedi on 21.12.2012; and (iii) dying declaration
(Ex.PW30/D) recorded by PW30 Pawan Kumar, Metropolitan
Magistrate on 25.12.2012 at 1:00 p.m. by multiple choice
questions and recording answers by gestures and writing.
In the first dying declaration (Ex.PW49/A), the
prosecutrix has stated that more than two men committed
27
rape on her, bit her on lips, cheeks and breast and also
subjected her to unnatural sex. In the second dying
declaration (Ex.PW27/A) recorded by PW27, the victim
has narrated the entire incident in great detail,
specifying the role of each accused, rape committed by
number of persons, insertion of iron rod in her private
parts, description of the bus, robbery committed and
throwing of both the victims out of the moving bus in
naked condition. On 25.12.2012 at 1:00 p.m., PW30 Pawan
Kumar, Metropolitan Magistrate recorded the statement by
putting multiple choice questions to the victim and by
getting answers through gestures and writing. While
making the third declaration, the victim also tried to
reveal the names of the accused by writing in her own
handwriting viz. “Ram Singh, Mukesh, Vinay, Akshay,
Vipin, Raju”.
35. All the contentions raised regarding the three dying
declarations have been considered in detail in paras
(148) to (192) and paras (395) to (417). Considering all
the three dying declarations, in the light of well
28
settled principles, this Court held that all the three
dying declarations are true, voluntary and consistent.
Insofar as third dying declaration, this Court, in paras
(408) to (412) held that the dying declaration made
through signs, gestures or by nods are admissible as
evidence and that proper care was taken by PW30 Pawan
Kumar, Metropolitan Magistrate and the third dying
declaration recorded by in response to the multiplechoice
questions by signs, gestures made by the victim
are admissible as evidence. In the third dying
declaration, the victim also wrote the names of the
accused persons “Ram Singh, Mukesh, Vinay, Akshay, Vipin,
Raju”. So far as the name of accused Vipin written by
the prosecutrix in the third dying declaration has been
elaborately considered by this Court in paras (150) and
(188) of the judgment.
36. Nonmention of use of iron rod in MLC, Ex.PW49/A has
also been noticed by this Court in its judgment and this
Court has given reasons for not finding any fault in the
MLC, Ex.PW49/A. The submissions of Shri Singh that on
29
21.12.2012 the prosecutrix was not fit to record her
dying declaration has also been rejected. With regard to
the morphine injection which was given to prosecutrix,
the statement of Doctor, the time of injection and the
effect of morphine was categorically noted and considered
and no fault was found with the second dying declaration.
The submission having been noted, considered and dealt
with by this Court in the judgment, the petitioners
cannot be allowed to reagitate the same issue again and
again. Nonmention of use of iron rod in the statement of
PW1 has also been noted in detail by this Court. That in
second dying declaration on 21.12.2012 the prosecutrix
has mentioned the use of iron rod by which she was
injured which is also noted by the Court. This Court
noted the injuries and medical evidence and has concluded
that accused had used iron rod. Those submissions having
been raised, dealt with by this Court in the main
judgment, the petitioners cannot be allowed to raise the
same again.
37. With regard to reports regarding DNA, this Court
elaborately considered the whole concept of DNA and
30
reports received. The attack of the petitioners on the
ground of blood transfusion and other submissions on DNA
report having been considered and has rightly been relied
on by this Court, the submissions pertaining to DNA are
nothing but repitition of submissions which have been
noted and rejected by this Court in the main judgment.
38. Contention of Mr. V.K. Singh is that accused Vinay
Sharma raised the plea of alibi that he had attended a
musical programme arranged by SCC Unit of the Church in
his locality and he was there from 08:15 pm to
11.00/12.00 pm on 16.12.2012 and he has produced the
video clipping to prove his presence there in the
programme and the same has not been considered by this
Court.
39. The plea of alibi put forth by accused Vinay Sharma
that he was present in the musical programme organised by
the SCC Unit of the Church in the DDA Park in his
locality has been elaborately considered in paras (258)
to (269). In para (267) of the judgment, this Court
referred to the evidence of PW83 Shri Angad Singh,
31
Deputy Director (Horticulture), DDA who has deposed that
no permission was granted by any authority to organise
any function in the evening of 16.12.2012 in the DDA
District Park, Hauz Khas, New Delhi. This Court has also
referred to the evidence of PW84 Father George Manimala
of St. Thomas Church and PW85 Brother R.P. Samuel,
Secretary, Ebenezer Assembly Church who have deposed that
their church(es) never organised any musical
programme/event in the DDA District Park, Hauz Khas in
the evening of Sunday i.e. on 16.12.2012. While
considering the plea of alibi raised by Vinay Sharma in
paras (258) to (269) referring to the evidence of DW5
Smt. Chamba Devi, mother of accused Vinay Sharma, DW7
Kishore Kumar Bhat and DW9 Manu Sharma, this Court held
that the plea of alibi raised by accused Vinay Sharma was
not acceptable. Petitioner/accused Vinay Sharma now
cannot reagitate the same point.
40. Plea of alibi raised by accused Vinay Sharma was also
considered in the light of the footprints lifted from the
bus (Ext.P/1). PW46 A.D. Shah, Senior Scientific
32
Officer (Fingerprints), CFSL, CBI examined the chance
prints lifted from the bus marked as “Q.1” and “Q.4” was
found identical with the left palmprint and right thumb
impression of accused Vinay Sharma. After referring to
the evidence of PW46 and the expert report (Ext. PW46/D),
this Court held that the evidence clearly
establishes the presence of accused Vinay Sharma in the
bus. There is no merit in the contention that the plea
of alibi was not considered by this Court.
41. Likewise, video clippings relied upon by accused
Vinay Sharma (Ext.DW10/1) was considered in para (263)
of the judgment wherein this Court held that accused
Vinay Sharma and accused Pawan Gupta were 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 court and trial court on the
basis of the materials on record held that petitioner
No.1 was not a juvenile. Learned counsel for the
respondent has referred to the order of the trial court
33
dated 10.01.2013 which fully supports his submission. The
trial court on being fully satisfied that petitioner is
not a juvenile has rightly rejected the application for
ossification test submitted by petitioner No.1. There is
no substance in this submission and no ground is made out
to review the judgment.
43. Now, coming to the submission of the learned counsel
for petitioner No.2 that he was juvenile at the time of
occurrence. The said issue was also considered by the
trial court and rejected. The trial court on the basis of
the material placed before it had rightly concluded that
petitioner No.2 was not a juvenile. Learned counsel for
the respondent has rightly referred to the proceedings of
trial court dated 10.09.2013. In this respect this
submission also does not furnish any ground for review of
the judgment.
44. Before closing we need to reiterate that criminal
appeals filed by the appellants (petitioners herein)
against the judgment of the High Court were heard by this
Court giving them sufficient time for raising all
possible submissions. The hearing in criminal appeals
34
continued about 38 days. The learned counsel for the
appellants/petitioners had made elaborate submissions
which were all duly considered by us in our main
judgment. In these review petitions no ground has been
made out which may furnish any ground to review the
judgment. We, thus, find no merit in these review
petitions and consequently, the review petitions are
dismissed.
........................CJI.
( DIPAK MISRA )
..........................J.
( R. BANUMATHI )
..........................J.
( ASHOK BHUSHAN )
NEW DELHI,
JULY 09, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURICTION
REVIEW PETITION (CRL.) NOS.671673 OF 2017
IN
CRIMINAL APPEAL NOS.608 & 609610 OF 2017
VINAY SHARMA & ANR. ... PETITIONERS
VERSUS
STATE OF NCT OF DELHI & ORS. ... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
These review petitions have been filed by two
applicants Vinay Sharmaaccused No.1 and Pawan Kumar
Guptaaccused No.2 to review the judgment of this Court
dated 05.05.2017 by which judgment this Court had
dismissed the criminal appeals filed by the petitioners
challenging the order of the High Court confirming the
death reference and dismissing the criminal appeals filed
2
by the petitioners against the order of conviction and
award of death sentence.
2. Both the petitioners were tried for rape and murder
of a 23 years' age lady Nirbhaya (changed name). The
trial court convicted the petitioners along with three
others and awarded death sentence to all the four
accused. Death reference No.6 of 2013 Was sent by the
trial court to the High Court. Separate criminal appeals
were also filed by the petitioners challenging the
judgment of the trial court. Delhi High Court vide its
judgment dated 13.03.2014 confirmed the death penalty to
all the four convicts including petitioners, Vinay
Sharma, appellant No.1 in Criminal Appeal No. 609 of
2017, Pawan Kumar Gupta, appellant No.1 in Criminal
Appeal Nos.608 of 2017. The appeals were dismissed by the
judgment of this Court dated 05.05.2017. The petitioners
aggrieved by the said judgment dated 05.05.2017 by which
all the appeals were dismissed have filed these review
petitions praying for reviewing the judgment dated
05.05.2017.
3
3. We have heard the learned counsel, Shri A.P. Singh
appearing for the petitioners and Shri Sidharth Luthra,
learned senior counsel for the State.
4. Shri A.P. Singh learned counsel for the peititoners
in support of the review petitions has urged several
grounds. Shri Singh submits that death penalty in India
needs to be abolished. He submits that there are several
reasons for opposing death penalty which broadly
speaking, they fall under two categories, moral and
practical. This also goes against the principle of nonviolence
that India has advocated for decades. In the
year 1966, the Bill introducing death penalty abolition
was passed by the House of Parliament in England. He
further submitted that in a large number of countries
death penalty has been abolished. In his submission he
has referred the names of several Latin American
countries and several Australian States.
5. Apart from above, several other contentions have been
advanced by Shri A.P. Singh which we proceed to note in
seriatim. Shri Singh submits that investigation and trial
4
has been carried out with the sole purpose of survival of
the prosecuting agency. The investigation is engaged in
maladroit effort to book the vulnerable and the innocent
so as to disguise and cover there inefficiency to catch
the real culprits. The political class is using
investigating agencies as tools for partisan political
objective.
6. PW.1, during his crossexamination was confronted
with his statement Ex.PW1/A qua the factum of not
disclosing the use of iron rod, the description of Bus,
the name of assailants either in MLC Ex.PW51/A or in his
complaint Ex.PW1/A. The Bus, Ex.P1 has been falsely
implicated in the present case. CCTV footage was not
properly examined to check all possible Buses plying on
the said route. The Bus was taken to Tyagraj Stadium
instead of the Police Station to avoid the media and to
facilitate the planting of evidence.
7. That the three dying declarations have been contrived
and deserved to be kept out of consideration and the
dying declarations do not inspire confidence for
5
variations in them relating to the number of assailants,
the description of Bus, the identity of accused etc. If
at all any dying declaration is to be relied on, it is
first dying declaration made on 16.12.2012 and recorded
by PW49, Dr. Rashmi Ahuja, which dying declaration only
states that there were 4 to 5 persons in the Bus.
8. In the statement recorded in MLC Ex.PW49/A
prosecutrix has neither named any of the accused nor
mentioned the factum of iron rod being used by the
accused persons. The prosecutrix could not have given
such a lengthy dying declaration on 21.12.2012 when she
was continuously on morphine. Third dying declaration
recorded by the Metropolitan Magistrate, PW30, on
25.12.2012, through gesture and writings is controverted
by allegations of false medical fitness certificate and
absence of videography. The use of iron rod was not
mentioned by PW1 in his statement. Had the iron rod
been really inserted through the vagina, it would have
first destroyed the uterus before the intestines were
pulled out. There were no rod related injuries in her
6
uterus and medical science too does not assist the
prosecution in their claim.
9. The DNA test can not be treated as accurate, since
there was blood transfusion as the prosecutrix required
blood and when there is mixing of blood, the
DNA profile is likely to differ.
10. The High Court has failed to appreciate that
petitioner No.1, Vinay Sharma on the date of incident and
time was in a musical programme arranged by S.C.C. unit
of Church in his locality and he was there from 8.15 p.m.
to 11/12 p.m. on 16.12.2012. The presence of petitioner
No.1 in musical show has been witnessed by defence
witnesses who had deposed before the Court. Ram Babu,DW10
had also videographed the show from the mobile phone
of petitioner No.1 which was produced before the trial
court.
11. The application for ossification test submitted by
petitioner No.1 was wrongly turned down by the trial
court. The petitioner was actually born on 01.03.1995 but
his date of birth given by his father was 01.03.1994
7
which was only for the purpose of getting him admitted in
the MCD School. The petitioner was only 17 years 8 months
and 15 days old at the time of incident.
12. The real date of birth of petitioner No.2 is
08.10.1996 and he was also minor on the date of incident.
The petitioners were not habitual offenders. Number of
dacoits have surrendered for the last several decades and
have reformed themselves.
13. Shri Sidharth Luthra, learned senior counsel
appearing for the State refuting the submissions of the
petitioners submitted that the petitioners already in a
long hearing of the appeals before this Court have made
all possible submissions which have been considered by
this Court while deciding the appeals on 05.05.2017, the
review petition is nothing but an effort by the
petitioners to reargue the appeals on merits which is
not permissible under the law. No grounds have been made
out to consider the review petitions. In so far as the
submission of the learned counsel for the petitioners
that the death penalty be abolished in India, Shri Luthra
8
submits that the said submission need not to be gone into
in these review petitions. It is submitted that death
penalty has already been upheld by this Court by the
Constitution Bench of this Court in Bachan Singh vs.
State of Punjab, (1980) 2 SCC 684. He submits that death
penalty being still in the statute book it is not open
for the petitioners to argue that the death penalty be
abolished in this country. The abolition of the death
penalty is a legislative function and unless the
Parliament passes an amending Act it is not for the
Courts to consider the said submission.
14. With regard to the submissions of the petitioners
that investigation was faulty and prosecuting agencies
had roped in the petitioners, it is submitted that
prosecution was scientifically carried out in efficient
manner which has also been noted by this Court and any
person against the prosecution are unjustified and have
to be ignored.
15. The evidence of PW1 and all infirmities which are
sought to be pointed out in these review petitions have
9
already been considered and gone into by this Court.
Learned counsel has referred to in paragraphs 65 to 97
and 425 to 434 of the judgment where this Court has
thoroughly considered all submissions regarding evidence
of PW1 and this Court has rejected the inconsistencies,
shortcomings and omissions as being pointed by the
petitioners. Coming to the submission that the Bus, P1
has been falsely implicated, Shri Luthra submits that
apart from CCTV footage where Bus was noticed twice
passing in front of the hotel, there were other
evidences, namely finger prints, wound stains and other
objects obtained from the Bus which proved that the Bus
was involved in the incident. Shri Luthra has referred to
paragraphs 104 and 105 where this argument has been noted
and rejected by this Court.
16. On the submissions raised by the learned counsel for
the petitioners regarding dying declarations, Shri Luthra
submits that all arguments pertaining to dying
declarations have been considered and dealt with by this
Court in paragraphs 148 to 192 of the judgment dated
10
05.05.2017 and petitioners cannot be allowed to reagitate
the same which have already been considered and rejected
by this Court. With regard to first dying declaration
which was the case history recorded by Dr. Rashmi Ahuja,
this Court has considered all aspects and had already
held that there was no infirmity in noticing the facts as
could be disclosed by the prosecutrix at that time when
she had undergone traumatic experience immediately
before.
17. The nonmention of use of iron rod in the MLC or PW1's
statement has also been considered by this Court and
this Court had held and found use of iron rod from the
evidence. The statement of PW1 pertaining to use of iron
rod to injure the prosecutrix has also been considered
and noticed by this Court. The DNA reports have been
examined in detail by this Court including blood
transfusion which has also been considered in paragraphs
233234. With regard to alibi of Vinay Sharma that he, at
the relevant time, was in a musical programme, this Court
in its judgment dated 05.05.2017 has considered and
11
rejected the plea of alibi after consideration of Defence
evidence. The same argument cannot be allowed to be
raised in the review petition. In so far as the argument
that petitioner No.1, Vinay Sharma was a juvenile at the
time of the commission of the offence, Shri Luthra
mentioned order of the trial court dated 10.01.2013
which mentioned that age verification report of Vinay and
Pawan have been received and they do not dispute the age
verification report filed by the IO. The prosecuiton has
placed the certified copy of the admission register of
the first attended school along with the certified copy
of the admission form of the first class of accusedVinay
Sharma and trial court after considering all evidences
had held that Vinay Sharma was more than 18 years of age
at the time of commission of offence. On the claim that
Pawan was a juvenile, Shri Luthra referred to the order
dated 10.01.2013 where age verification report of Pawan
has been received and also certified copies had been
filed on record. The report had referred to the written
statement of the parents of both these accused where they
have confirmed the age of their wards. There was no
12
infirmity in the trial court taking decision that both
were major and the trial court proceeded accordingly.
There is no substance in the submission raised by the
learned counsel for the petitioners.
18. We have considered the submissions of the parties and
perused the records.
19. Before we enter into the submissions raised in these
review petitions, it is useful to recapitulate the scope
and grounds available for exercise of jurisdiction by
this Court under Article 137. Order XLVII Rule 1 of the
Supreme Court Rules, 2013 dealing with review is as
follows:
“i. The Court may review its judgment or
order, but no application for review will be
entertained in a civil proceeding except on
the ground mentioned in Order XLVII, rule 1 of
the Code, and in a criminal proceeding except
on the ground of an error apparent on the face
of the record.”
20. An application to review a judgment is not to be
lightly entertained and this Court could exercise its
review jurisdiction only when those grounds are made out
13
as provided in Order XLVII Rule 1 of the Supreme Court
Rules, 2013 framed under Article 145 of the Constitution
of India. This Court in Sow Chandra Kante and another v.
Sheikh Habib, (1975) 1 SCC 674 speaking through Justice
V.R. Krishna Iyer on review has stated the following in
para 10:
“10. A review of a judgment is a serious step
and reluctant resort to it is proper only
where a glaring omission or patent mistake or
like grave error has crept in earlier by
judicial fallibility. A mere repetition,
through different counsel, of old and
overruled arguments, a second trip over
ineffectually covered ground or minor mistakes
of inconsequential import are obviously
insufficient.”
21. As per rule, review in a criminal proceeding is
permissible only on the ground of error apparent on the
face of the record. This Court in P.N. Eswara Iyer and
others v. Registrar, Supreme Court of India, (1980) 4
SCC 680 while examining the review jurisdiction of this
Court vis a vis criminal and civil proceedings had made
the following observations in paras 34 and 35:
“34. The rule, on its face, affords a wider
set of grounds for review for orders in civil
proceedings, but limits the ground visavis
14
criminal proceedings to “errors apparent on
the face of the record”. If at all, the
concern of the law to avoid judicial error
should be heightened when life or liberty is
in peril since civil penalties are often less
traumatic. So, it is reasonable to assume that
the framers of the rules could not have
intended a restrictive review over criminal
orders or judgments. It is likely to be the
other way about. Supposing an accused is
sentenced to death by the Supreme Court and
the “deceased” shows up in court and the court
discovers the tragic treachery of the recorded
testimony. Is the court helpless to review and
set aside the sentence of hanging? We think
not. The power to review is in Article 137 and
it is equally wide in all proceedings. The
rule merely canalises the flow from the
reservoir of power. The stream cannot stifle
the source. Moreover, the dynamics of
interpretation depend on the demand of the
context and the lexical limits of the test.
Here “record” means any material which is
already on record or may, with the permission
of the court, be brought on record. If justice
summons the Judges to allow a vital material
in, it becomes part of the record; and if
apparent error is there, correction becomes
necessitous.
35. The purpose is plain, the language is
elastic and interpretation of a necessary
power must naturally be expansive. The
substantive power is derived from Article 137
and is as wide for criminal as for civil
proceedings. Even the difference in
phraseology in the rule (Order 40 Rule 2)
must, therefore, be read to encompass the same
area and not to engraft an artificial
divergence productive of anomaly. If the
expression “record” is read to mean, in its
15
semantic sweep, any material even later
brought on record, with the leave of the
court, it will embrace subsequent events, new
light and other grounds which we find in Order
47 Rule 1, CPC. We see no insuperable
difficulty in equating the area in civil and
criminal proceedings when review power is
invoked from the same source.”
22. The scope of review jurisdiction has been considered
by this Court in a number of cases where well settled
principles have been reiterated time and again. It is
sufficient to refer to judgment of this Court in Kamlesh
Verma vs. Mayawati and others (2013) 8 SCC 320, where
this Court has elaborately considered the scope of
review. In paras 17, 18, 20.1 and 20.2 following has been
laid down:
“17. In a review petition, it is not open to
the Court to reappreciate the evidence and
reach a different conclusion, even if that is
possible. Conclusion arrived at on
appreciation of evidence cannot be assailed in
a review petition unless it is shown that
there is an error apparent on the face of the
record or for some reason akin thereto. This
Court in Kerala SEB v. Hitech Electrothermics
& Hydropower Ltd. held as under: (SCC p. 656,
para 10)
“10. … In a review petition it is not open to
this Court to reappreciate the evidence and
16
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.”
18. Review is not rehearing of an original
matter. The power of review cannot be confused
with appellate power which enables a superior
court to correct all errors committed by a
subordinate court. A repetition of old and
overruled argument is not enough to reopen
concluded adjudications. This Court in Jain
Studios Ltd. v. Shin Satellite Public Co.
Ltd., held as under: (SCC pp. 504505, paras
1112)
“11. So far as the grievance of the applicant
on merits is concerned, the learned counsel
for the opponent is right in submitting that
virtually the applicant seeks the same relief
which had been sought at the time of arguing
the main matter and had been negatived. Once
17
such a prayer had been refused, no review
petition would lie which would convert
rehearing of the original matter. It is
settled law that the power of review cannot
be confused with appellate power which
enables a superior court to correct all
errors committed by a subordinate court. It
is not rehearing of an original matter. A
repetition of old and overruled argument is
not enough to reopen concluded adjudications.
The power of review can be exercised with
extreme care, caution and circumspection and
only in exceptional cases.
12. When a prayer to appoint an arbitrator by
the applicant herein had been made at the
time when the arbitration petition was heard
and was rejected, the same relief cannot be
sought by an indirect method by filing a
review petition. Such petition, in my
opinion, is in the nature of ‘second innings’
which is impermissible and unwarranted and
cannot be granted.””
20.1. When the review will be maintainable:
(i) Discovery of new and important matter or
evidence which, after the exercise of due
diligence, was not within knowledge of the
petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of
the record;
(iii) Any other sufficient reason.
The words “any other sufficient reason” have
been interpreted in Chhajju Ram v. Neki and
approved by this Court in Moran Mar Basselios
Catholicos v. Most Rev. Mar Poulose Athanasius
to mean “a reason sufficient on grounds at
18
least analogous to those specified in the
rule”. The same principles have been
reiterated in Union of India v. Sandur
Manganese & Iron Ores Ltd.
20.2. When the review will not be
maintainable:
(i) A repetition of old and overruled
argument is not enough to reopen concluded
adjudications.
(ii) Minor mistakes of inconsequential
import.
(iii) Review proceedings cannot be equated
with the original hearing of the case.
(iv) Review is not maintainable unless the
material error, manifest on the face of the
order, undermines its soundness or results in
miscarriage of justice.
(v) A review is by no means an appeal in
disguise whereby an erroneous decision is
reheard and corrected but lies only for
patent error.
(vi) The mere possibility of two views on the
subject cannot be a ground for review.
(vii) The error apparent on the face of the
record should not be an error which has to be
fished out and searched.
(viii) The appreciation of evidence on record
is fully within the domain of the appellate
court, it cannot be permitted to be advanced
in the review petition.
(ix) Review is not maintainable when the same
relief sought at the time of arguing the main
matter had been negatived.”
19
23. This very Bench speaking through one of us (Justice
Ashok Bhushan) had occasion to consider the ambit and
scope of the review Jurisdiction in a criminal proceeding
in Vikram Singh alias Vicky Walia and another vs. State
of Punjab and another (2017) 8 SCC 518. In para 23 of
the judgement following has been stated:
“23. In view of the above, it is clear that
scope, ambit and parameters of review
jurisdiction are well defined. Normally in a
criminal proceeding, review applications
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.”
20
24. We first take up the submission of Shri A.P. Singh
regarding the abolition of death penalty in this counrty.
The Constitution Bench of this Court in Bachan Singh
(supra) examined the constitutional validity of death
penalty as provided under Section 302 of IPC. After
elaborately considering the existence of death penalty in
the Penal Code, constitutional provisions of Articles 19
and 21, and international covenant on civil and criminal
rights, this court held that death penalty as contained
in Penal Code is constitutionally valid. In paragraph 132
following was held:
“132. To sum up, the question whether or not
death penalty serves any penological purpose
is a difficult, complex and intractable issue.
It has evoked strong, divergent views. For the
purpose of testing the constitutionality of
the impugned provision as to death penalty
in Section 302, Penal Code on the ground of
reasonableness in the light Of Articles 19 and
21 of the Constitution, it is not necessary
for us to express any categorical opinion, one
way or the other, as to which of these two
antithetical views, held by the Abolitionists
and Retentionists, is correct. It is
sufficient to say that the very fact that
persons of reason, learning and light are
rationally and deeply divided in their opinion
on this issue, is a ground among others, for
rejecting the petitioner's argument that
retention of death penalty in the impugned
21
provision, is totally devoid of reason and
purpose. If, notwithstanding the view of the
Abolitionists to the contrary, a very large
segment of people, the world over, including
sociologists, legislators, jurists, judges and
administrators still firmly believe in the
worth and necessity of capital punishment for
the protection of society, if in the
perspective of prevailing crime conditions in
India, contemporary public opinion channelized
through the people's representatives in
Parliament, has repeatedly in the last three
decades, rejected all attempts, including the
one made recently, to abolish or specifically
restrict the area of death penalty, if death
penalty is still a recognised legal sanction
for murder or some types of murder in most of
the civilised countries in the world, if the!
framers of the Indian Constitution were fully
aware as we shall presently show they were of
the existence of death penalty as punishment
for murder, under the Indian Penal Code, if
the 35th Report and subsequent Reports of the
Law Commission suggesting retention of death
penalty, and recommending revision of the
Criminal Procedure Code and the insertion of
the new Sections 235(2) and 354(3) in that
Code providing for presentence hearing and
sentencing procedure on conviction for murder
and other capital offences were before the
Parliament and presumably considered by it
when in 19721973 it took up revision of the
Code of 1898 and replaced it by the CrPC,
1973, it is not possible to hold that the
provision of death penalty as an alternative
punishment for murder, in Section 302, Penal
Code is unreasonable and not in the public
interest. We would, therefore, conclude that
the impugned provision in Section 302,
violates neither the letter or the ethos
of Article 19.”
22
25. The submission of Mr. Singh that death penalty has
been abolished by the Parliament of U.K. in the year 1966
and several Latin American countries and Australian
States have also abolished death penalty is no ground to
efface the death penalty from the statute book of our
country. So far the death penalty remains in the Penal
Code the Courts cannot be held to commit any illegality
in awarding death penalty in appropriate cases.
26. In view of the above, no ground to review judgment is
made out on the strength of the above submissions.
27. Now, coming to the submissions made by Shri Singh
attacking the investigation and prosecution agencies,
suffice it to say that submissions and arguments are
general in nature and not based on any substantial ground
so as to point out any such error in the trial so as to
furnish any ground to review any judgment.
28. The submission made by Shri Singh attacking the
evidence of PW1 sole eyewitness, who was also injured
23
in the incident need not to be considered in these review
petitions. All submissions impeaching evidence of PW1
were made when the appeals were heard on merit. This
Court had considered all submissions attacking the
evidence of PW1 in paragraphs 6597 and 425 to 434. This
Court after examining the relevant evidences had relied
on evidence of PW1. In the review petitions, petitioners
cannot ask the Court to rehear the appeals on merits
which submissions had already been noted, considered and
rejected.
29. The submission of Shri Singh that Bus Ex.P1, has
been falsely implicated is also stated to be rejected.
All these submissions were considered by this Court while
delivering the judgment in paragraphs 98107. This Court
has rejected the submission of the petitioners that it
was a case of plantation of Bus, the Bus was found to be
involved in the incident from the evidence on record.
30. Contention of Mr. V.K. Singh is that the bus No. DL 1
PC 0149 (Ext. P/1) has been falsely implicated and the
24
CCTV Footage cannot be relied upon and this aspect is not
properly considered by this Court. The exact points now
raised by Mr. Singh in para (M) of the review petition
were considered by this Court in paras (98) to (113) and
paras (435) to (439). In para (101), this Court has
referred to the evidence of PW76 Gautam Roy, HoD,
Computer Cell, Forensic Division who has examined the
CCTV Footage received by him in a Pen Drive in two sealed
parcels. In paras (98) to (113), this Court has referred
to the evidence regarding retrieval of CCTV Footage in
the presence of PW67 Pramod Kumar Jha, owner of the
hotel at Delhi Airport and the photographs taken thereon
to prove the involvement of the bus No. DL 1 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 considered the evidence of PW81, Dinesh
Yadav, owner of the bus and PW16 Rajeev Jakhmola,
Manager (Admn.) of Birla Vidya Niketan School, Pushp
Vihar who have stated that the bus No. DL 1 PC 0149 (Ext.
25
P/1) was routinely driven by Ram Singh (deceased accused)
and he was the driver of the bus.
32. Involvement of the bus No. DL 1 PC 0149 (Ext. P/1)
was also held to be substantiated by matching of DNA
profile of the material objects lifted from the bus No.
DL 1 PC 0149 (Ext. P/1) which were found consistent with
that of the victim and the complainant. In paras (431)
and (438), the same has been wellconsidered. Matching
of DNA profile developed from the articles seized from
the bus like ‘hair’ recovered from the third left row of
the bus and the bloodstained seat cover of the bus and
the bunch of hair recovered from the floor of the bus
with the DNA profile of the victim was held to be
unimpeachable evidence establishing the involvement of
the bus in the commission of the offence. The oral and
scientific evidence has been elaborately considered by
this Court in upholding the findings of the High Court as
to the involvement of the bus. The petitioner/accused
cannot reagitate the same point again.
26
33. Mr. Singh has inter alia made various submissions
regarding reliability of the three dying declarations:
(i) failure to disclose the names of any of the accused
in the first dying declaration (Ext.PW49/A) and
therefore, the second and third dying declarations are
tutored; (ii) the three dying declarations cannot be
relied upon due to variations and improvements; and (iii)
sudden appearance of the name of ‘Vipin’ (in the third
dying declaration) makes it doubtful and no explanation
is offered.
34. The victim made three dying declarations: (i)
statement recorded by PW49 Dr. Rashmi Ahuja immediately
after the victim was admitted to the hospital; (ii)
Dying declaration (Ex.PW27/A) recorded by PW27 SDM Usha
Chaturvedi on 21.12.2012; and (iii) dying declaration
(Ex.PW30/D) recorded by PW30 Pawan Kumar, Metropolitan
Magistrate on 25.12.2012 at 1:00 p.m. by multiple choice
questions and recording answers by gestures and writing.
In the first dying declaration (Ex.PW49/A), the
prosecutrix has stated that more than two men committed
27
rape on her, bit her on lips, cheeks and breast and also
subjected her to unnatural sex. In the second dying
declaration (Ex.PW27/A) recorded by PW27, the victim
has narrated the entire incident in great detail,
specifying the role of each accused, rape committed by
number of persons, insertion of iron rod in her private
parts, description of the bus, robbery committed and
throwing of both the victims out of the moving bus in
naked condition. On 25.12.2012 at 1:00 p.m., PW30 Pawan
Kumar, Metropolitan Magistrate recorded the statement by
putting multiple choice questions to the victim and by
getting answers through gestures and writing. While
making the third declaration, the victim also tried to
reveal the names of the accused by writing in her own
handwriting viz. “Ram Singh, Mukesh, Vinay, Akshay,
Vipin, Raju”.
35. All the contentions raised regarding the three dying
declarations have been considered in detail in paras
(148) to (192) and paras (395) to (417). Considering all
the three dying declarations, in the light of well
28
settled principles, this Court held that all the three
dying declarations are true, voluntary and consistent.
Insofar as third dying declaration, this Court, in paras
(408) to (412) held that the dying declaration made
through signs, gestures or by nods are admissible as
evidence and that proper care was taken by PW30 Pawan
Kumar, Metropolitan Magistrate and the third dying
declaration recorded by in response to the multiplechoice
questions by signs, gestures made by the victim
are admissible as evidence. In the third dying
declaration, the victim also wrote the names of the
accused persons “Ram Singh, Mukesh, Vinay, Akshay, Vipin,
Raju”. So far as the name of accused Vipin written by
the prosecutrix in the third dying declaration has been
elaborately considered by this Court in paras (150) and
(188) of the judgment.
36. Nonmention of use of iron rod in MLC, Ex.PW49/A has
also been noticed by this Court in its judgment and this
Court has given reasons for not finding any fault in the
MLC, Ex.PW49/A. The submissions of Shri Singh that on
29
21.12.2012 the prosecutrix was not fit to record her
dying declaration has also been rejected. With regard to
the morphine injection which was given to prosecutrix,
the statement of Doctor, the time of injection and the
effect of morphine was categorically noted and considered
and no fault was found with the second dying declaration.
The submission having been noted, considered and dealt
with by this Court in the judgment, the petitioners
cannot be allowed to reagitate the same issue again and
again. Nonmention of use of iron rod in the statement of
PW1 has also been noted in detail by this Court. That in
second dying declaration on 21.12.2012 the prosecutrix
has mentioned the use of iron rod by which she was
injured which is also noted by the Court. This Court
noted the injuries and medical evidence and has concluded
that accused had used iron rod. Those submissions having
been raised, dealt with by this Court in the main
judgment, the petitioners cannot be allowed to raise the
same again.
37. With regard to reports regarding DNA, this Court
elaborately considered the whole concept of DNA and
30
reports received. The attack of the petitioners on the
ground of blood transfusion and other submissions on DNA
report having been considered and has rightly been relied
on by this Court, the submissions pertaining to DNA are
nothing but repitition of submissions which have been
noted and rejected by this Court in the main judgment.
38. Contention of Mr. V.K. Singh is that accused Vinay
Sharma raised the plea of alibi that he had attended a
musical programme arranged by SCC Unit of the Church in
his locality and he was there from 08:15 pm to
11.00/12.00 pm on 16.12.2012 and he has produced the
video clipping to prove his presence there in the
programme and the same has not been considered by this
Court.
39. The plea of alibi put forth by accused Vinay Sharma
that he was present in the musical programme organised by
the SCC Unit of the Church in the DDA Park in his
locality has been elaborately considered in paras (258)
to (269). In para (267) of the judgment, this Court
referred to the evidence of PW83 Shri Angad Singh,
31
Deputy Director (Horticulture), DDA who has deposed that
no permission was granted by any authority to organise
any function in the evening of 16.12.2012 in the DDA
District Park, Hauz Khas, New Delhi. This Court has also
referred to the evidence of PW84 Father George Manimala
of St. Thomas Church and PW85 Brother R.P. Samuel,
Secretary, Ebenezer Assembly Church who have deposed that
their church(es) never organised any musical
programme/event in the DDA District Park, Hauz Khas in
the evening of Sunday i.e. on 16.12.2012. While
considering the plea of alibi raised by Vinay Sharma in
paras (258) to (269) referring to the evidence of DW5
Smt. Chamba Devi, mother of accused Vinay Sharma, DW7
Kishore Kumar Bhat and DW9 Manu Sharma, this Court held
that the plea of alibi raised by accused Vinay Sharma was
not acceptable. Petitioner/accused Vinay Sharma now
cannot reagitate the same point.
40. Plea of alibi raised by accused Vinay Sharma was also
considered in the light of the footprints lifted from the
bus (Ext.P/1). PW46 A.D. Shah, Senior Scientific
32
Officer (Fingerprints), CFSL, CBI examined the chance
prints lifted from the bus marked as “Q.1” and “Q.4” was
found identical with the left palmprint and right thumb
impression of accused Vinay Sharma. After referring to
the evidence of PW46 and the expert report (Ext. PW46/D),
this Court held that the evidence clearly
establishes the presence of accused Vinay Sharma in the
bus. There is no merit in the contention that the plea
of alibi was not considered by this Court.
41. Likewise, video clippings relied upon by accused
Vinay Sharma (Ext.DW10/1) was considered in para (263)
of the judgment wherein this Court held that accused
Vinay Sharma and accused Pawan Gupta were 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 court and trial court on the
basis of the materials on record held that petitioner
No.1 was not a juvenile. Learned counsel for the
respondent has referred to the order of the trial court
33
dated 10.01.2013 which fully supports his submission. The
trial court on being fully satisfied that petitioner is
not a juvenile has rightly rejected the application for
ossification test submitted by petitioner No.1. There is
no substance in this submission and no ground is made out
to review the judgment.
43. Now, coming to the submission of the learned counsel
for petitioner No.2 that he was juvenile at the time of
occurrence. The said issue was also considered by the
trial court and rejected. The trial court on the basis of
the material placed before it had rightly concluded that
petitioner No.2 was not a juvenile. Learned counsel for
the respondent has rightly referred to the proceedings of
trial court dated 10.09.2013. In this respect this
submission also does not furnish any ground for review of
the judgment.
44. Before closing we need to reiterate that criminal
appeals filed by the appellants (petitioners herein)
against the judgment of the High Court were heard by this
Court giving them sufficient time for raising all
possible submissions. The hearing in criminal appeals
34
continued about 38 days. The learned counsel for the
appellants/petitioners had made elaborate submissions
which were all duly considered by us in our main
judgment. In these review petitions no ground has been
made out which may furnish any ground to review the
judgment. We, thus, find no merit in these review
petitions and consequently, the review petitions are
dismissed.
........................CJI.
( DIPAK MISRA )
..........................J.
( R. BANUMATHI )
..........................J.
( ASHOK BHUSHAN )
NEW DELHI,
JULY 09, 2018.
