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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 607-608 OF 2017 (arising out of S.L.P. (Criminal) Nos. 3119-3120 of 2014)

Mukesh & Anr.         …Appellants

Versus

State for NCT of Delhi & Ors.                   …Respondents

WITH

CRIMINAL APPEAL NOS.  609-610 OF 2017 (arising out of S.L.P. (Criminal) Nos. 5027-5028 of 2014)

J U D G M E N T

Dipak Misra, J. [for himself and Ashok Bhushan, J.]

The  cold  evening  of  Delhi  on  16th December,  2012

could  not  have  even  remotely  planted  the  feeling  in  the

twenty-three year old lady, a para-medical student, who had

gone with her friend to watch a film at PVR Select City Walk

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Mall, Saket, that in the next few hours, the shattering cold

night that was gradually stepping in would bring with it the

devastating  hour  of  darkness  when  she,  alongwith  her

friend,  would get into a bus at Munirka bus stand to be

dropped at a particular place; and possibly could not have

imagined that she would be a prey to the savage lust of a

gang of six, face brutal assault and become a playful thing

that  could be tossed around at  their  wild  whim and her

private parts would be ruptured to give vent to their pervert

sexual  appetite,  unthinkable  and  sadistic  pleasure.  What

the victims had not  conceived of,  it  all  happened, as the

chronology of events would unroll. The attitude, perception,

the  beastial  proclivity,  inconceivable  self-obsession  and

individual  centralism  of  the  six  made  the  young  lady  to

suffer immense trauma and, in the ultimate eventuate, the

life-spark that moves the bodily frame got extinguished in

spite  of  availing  of  all  the  possible  treatment  that  the

medical  world  could  provide.   The death took  place  at  a

hospital in Singapore where she had been taken to with the

hope that her life could be saved.  

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2. The friend of the girl survived in spite of being thrown

outside the bus along with the girl and the attempt of the

accused-appellants to run over them became futile as they,

by their slight movement, could escape from being crushed

under the bus, and the appellants left them thinking that

they were no more alive. Lying naked, as the clothes were

removed from their  bodies,  they shouted for  help and as

good fortune would have it, the night patrolling vehicle, a

motor cycle, arrived and the said man, Raj Kumar, PW-72,

gave the shirt to the boy and contacted the control room

from which a Bolero patrol van came and they brought a

bed sheet and tore it into two parts and gave a piece to each

of the victims so that they could cover themselves and feel

civil.   The  PCR  van  took  the  victims  to  the  Safdarjung

Hospital where treatment commenced.    

3. The present case is one where there can be no denial

that  the  narrative  is  long,  the  investigation  has  been

cautious  and  to  bring  home  the  charge,  modern  and

progressive  scientific  methods  have  been  adopted.   Mr.

Siddharth  Luthra,  learned  senior  counsel  for  the

respondent-State,  has  made  indefatigable  endeavour  to

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project that the investigation is flawless and exemplary; and

Mr. M.L. Sharma and  Mr. A.P. Singh, learned counsel for

the appellants, have severely criticized it as faulty on many

a score and that it is completely biased; and Mr. Sanjay R.

Hegde, learned senior counsel, the friend of the Court, in his

own way, has highlighted that the investigation is not only

flawed but also unreliable which deserves chastisement and

warrants  rejection.   Many facets  of  the  investigation that

pertain  to  recording  of  dying  declaration,  recording  of

statements of witnesses under Section 161 of the Code of

Criminal  Procedure  (CrPC),  the  medical  examination,

holding of  the test  identification parade,  the manner and

method of search and seizure and the procedure of arrest

have been seriously commented upon. That apart, criticism

is advanced from many a spectrum to strengthen the stance

that it does not meet the standard and test determined by

law.  Needless to say, the factual score and the investigation

have to withstand the test of  reliability  and acceptability.

The appreciation of evidence brought on record requires to

be appositely scrutinized to adjudge the fact whether  the

appellants are guilty of their culpability or there has been

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public  pressure,  as  alleged,  to  falsely  implicate  the

appellants or to treat them as guinea pigs to save others

and accept the hypothesis that the prosecution has booked

them at the instance of some political executives or to save a

situation which a disturbed society perceives as a collective

catastrophe  on  the  paradigm  of  social  stability  and  to

sustain its faith in the investigation to keep the precept of

rule of  law alive.   In essence, the submission is  that the

whole  exercise,  namely,  investigation  and  trial,  has  been

carried  out  with  the  sole  purpose  for  the  survival  of  the

prosecuting agency.  We have stated in the beginning that

Mr.  Sharma  and  Mr.  Singh  appearing  for  the  appellants

commenced their  submission with all  the vehemence and

sensitivity  at  their  command to  strike  at  the  root  of  the

prosecution branding it as suspicious, absolutely unreliable,

apathetic to the concept of individual dignity and engaged in

maladroit effort to book the vulnerable and the innocent so

as to disguise and cover their inefficiency to catch the real

culprits.  In the course of our deliberation, we shall dwell

upon the same and keenly scrutinize the justifiability of the

aforesaid criticism.

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The Prosecution Narrative

4. Presently,  we shall  advert  to  the exposition of  facts.

The prosecution case, as projected, is that on 16.12.2012,

the deceased, ‘Nirbhaya’ (not her real name), had gone with

her  friend,  the  informant,  PW-1,  to  the  PVR  situated  in

Select  City  Walk Mall,  Saket  to watch a movie.  After  the

show was  over,  about  8:30 p.m.,  they  took  an auto  and

reached Munirka bus stand wherefrom they boarded a white

coloured chartered bus [DL-1P-C-0149, Ext.P1] which was

bound to  Dwarka/Palam Road,  as a  boy  in  the  bus was

calling for commuters for the said destination. As per the

version of the informant, PW-1, the friend of the prosecutrix,

the bus had yellow and green lines/stripes and the word

“Yadav” was written on it. After both of them had entered

the bus, they noticed that six persons were already inside

the bus, four in the cabin of the driver and two behind the

driver’s cabin.  The deceased and the informant sat on the

left side in the row of two-seaters and paid the fare of twenty

rupees as demanded. Before they could get the feeling of a

safe  journey  (though  not  a  time-consuming  journey),  a

feeling of lonely suffocation and a sense of danger barged in,

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for the accused persons did not allow anyone else to board

and the bus moved and the lights inside the bus were put

off. With the lights being put off, the darkness and the fear

of the unexpected darkness ruled. A few minutes later, three

persons (who have been identified as accused Ram Singh,

Akshay and a young boy, who has been treated as a juvenile

in  conflict  with  law)  came  out  of  the  driver’s  cabin  and

started  to  abuse  PW-1.   The  young  companion  of  the

deceased  raised  opposition  to  the  abuse  that  led  to  an

altercation  which  invited  the  other  two  who  were  sitting

outside the driver’s cabin to join. The spirit to oppose and

the  duty  to  save  the  prosecutrix  had  to  die  down  and

perilously succumb to the assault by the accused persons

with the iron rods that caused injuries to his head, both the

legs and other parts of the body and the consequence was

that he fell on the floor of the bus to hear the painful cries of

the lady who, he knew, was being treated as an object, an

article for experimentation and prey to the pervert proclivity

of the six but could do nothing except to hear unbearable

cries  made  in  agony  and pain.  His  spirit  was  dead,  and

bound to.

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5. As  the  prosecution  story  further  unfurls,  the  two

accused  persons,  namely,  Pawan  and  Vinay,  pinned  the

young man down and robbed the victims of their mobiles

besides robbing the informant of his purse carrying a Citi

Bank credit card, ICICI Bank Debit Card, his identity card

issued  by  his  employer-company,  metro  card,  a  sum  of

rupees  one  thousand,  his  Titan  Watch,  a  golden  ring

studded with jewels and a silver ring studded with pearl,

black  colour  Hush  Puppies  shoes,  black  colour  Numero

Uno jeans, a grey colour pullover and a brown colour blazer.

As per the version of the prosecution, PW-1 was carrying

two mobiles and the prosecutrix was carrying only one, and

the accused snatched away all the three mobiles.  

6. The overpowering was not meant to satisfy the avarice.

As  the  accusations  proceed,  after  the  informant  was

overpowered,  as  it  could  only  have a singular  result,  the

accused  persons,  namely,  Ram  Singh,  Akshay  and  the

Juvenile in Conflict with Law (JCL) took the prosecutrix to

the rear side of the bus and she was raped by them, one

after the other.  

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7. After committing rape, the accused Ram Singh (since

deceased), accused Akshay and the JCL came towards the

informant, PW-1, and nailed him down; then the accused

Vinay and accused Pawan went to the rear side of the bus

and committed rape on the prosecutrix, one by one.  PW-1

noticed that earlier the bus was moving at fast speed but

after  sometime,  he  felt  that  the  speed  of  the  bus  was

reduced and he  saw that  the accused Mukesh,  who was

driving the bus, came near him and hit him with the rod

and he also went to the rear side of the bus and raped the

prosecutrix.  The prosecutrix was brutally gang raped by the

accused one after the other and she was also subjected to

unnatural sex.  Her private parts and her internal organs

were seriously injured by inserting iron rod and hand in the

rectal and vaginal region.  As per PW-1, he had heard the

cries of the prosecutrix like “chod do, bachao”.  PW-1 could

hear  the  prosecutrix  shouting  in  a  loud oscillating  voice.

The prosecutrix was carrying a grey colour purse having an

Axis  Bank  ATM card  and  other  belongings.  The  accused

persons robbed her of her belongings and stripped her. They

also took away the clothes of the informant while beating

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him with iron rods. The accused were exhorting that both

the victims be not left alive. The accused then tried to throw

both the informant and the prosecutrix out of the moving

bus from its rear door but could not open it and so, they

brought them to the front door and threw them out of the

moving  bus  at  National  Highway  No.  8,  Hotel  Delhi  37,

Mahipalpur flyover by the side of the road.

8. As  indicated  earlier,  the  prosecutrix  and  PW-1 were

noticed  by  PW-72,  Raj  Kumar,  who  heard  the  voice  of

‘bachao,  bachao’  from  the  left  side  of  the  road  near  a

milestone opposite to Hotel Delhi 37. PW-72 saw PW-1 and

the  prosecutrix  sitting  naked  having  blood  all  around.

Immediately  thereafter,  PW-72,  Raj  Kumar,  informed

PW-70, Ram Pal, who was in the Control Room, requesting

him  to  call  PCR.   PW-70,  Ram  Pal,  of  EGIS  Infra

Management  India  (P)  Limited,  dialed  100  No.  and  even

asked his other patrolling staff to reach the spot.

9. About  10:24  p.m.,  PW-73,  H.C.  Ram Chander,  who

was in charge of  PCR van Zebra 54, received information

about  the  incident  and  the  lying  of  victims  in  a  naked

condition  near  the  foot  of  Mahipalpur  fly  over  towards

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Dhaula Kuan opposite GMR Gate.  PW-73 reached the spot

and found the  victims.   He got  the  crowd dispersed and

brought a bottle of water and a bedsheet from the nearby

hotel and tore the same into two parts and gave it to both

the victims to cover themselves.  

Travel to the Safdarjung Hospital

10. About  11:00  p.m.,  PW-73  took  the  victims  to

Safdarjung Hospital, New Delhi.  On the way to the hospital,

the victims gave their names to him and informed that they

had boarded a bus from Munirka and that after some time

the occupants had started misbehaving and had beaten the

boy and taken the girl (prosecutrix) to the rear side of the

bus and committed rape on her.  Thereafter, they had taken

off the clothes of the victims and thrown them naked on the

road.  While leaving the informant, PW-1, in the casualty

where he was examined by PW-51, Dr. Sachin Bajaj, and

his  MLC,  Ext.  PW-51/A,  was  drawn up,  PW-73 took  the

prosecutrix to the Gynae ward and got her admitted there.

The  MLC  of  the  prosecutrix,PW-  49/B,  was  prepared  by

PW-49, Dr. Rashmi Ahuja.    

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11. PW-49, Dr. Rashmi Ahuja, recorded the history of the

incident  as  told  to  her  by  the  prosecutrix  and noted the

same in Exhibit PW-49/A.  As per the version narrated by

the  prosecutrix  to  her,  it  was  a  case  of  gang  rape  in  a

moving  bus  by  4-5  persons  when  the  prosecutrix  was

returning after watching a movie with the informant.  She

was slapped on her face, kicked on her abdomen and bitten

over lips, cheek, breast and vulval region. The prosecutrix

remembered intercourse two times and rectal  penetration

also.  She was also forced to have unnatural oral sex but

she refused.  All this continued for half an hour and then

she  was  thrown off  from the  moving  bus  along with  her

friend.

12. The  following  external  injuries  were  noted  by  Dr.

Rashmi Ahuja in Ex. PW-49/A:

a) Bruise over left eye covering whole of the eye b) Injury mark (abrasion) at right angle of eye c) Bruise over left nostril involving upper lip d) Both lips edematous e) Bleeding from upper lip present f) Bite mark over right cheek g) Left angle of mouth injured (small laceration) h) Bite mark over left cheek i) Right breast bite marks below areola present j) Left  breast  bruise  over  right  lower  quadrant,  bite

mark in inferior left quadrant

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Per abdomen: i) Guarding & rigidity present

Local examination: a) Cut mark (sharp) over right labia present b) A tag of vagina (6 cm in length) hanging outside the

introitus  c) There was profuse bleeding from vagina

Per vaginal examination: i) A posterior vaginal wall tear of about 7 to 8 cm

Per rectal examination: i) Rectal tear of about 4 to 5 cm., communicating with

the vaginal tear.

13. As  the  evidence  brought  on  record  would  show,  20

samples of the prosecutrix were taken and sealed with the

seal of  the hospital and handed over to PW-59, Inspector

Raj Kumari.

Registration of FIR and the progress thereon  

14. At this juncture, it is necessary to state that after the

victims  were  rescued,  the  informant,  PW-1,  Awninder

Pratap, gave his first statement to the police at 3:45 a.m. on

17.12.2012 which culminated into the recording of the FIR

at 5:40 a.m. being FIR No. 413/2012 dated 17.12.2012, PS

Vasant  Vihar  under  Section  120B   IPC  and  Sections

365/366/376(2)(g)/377/307/302  IPC  and/or  Sections

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396/395 IPC read with Sections 397/201/412 IPC.  It was

thereafter handed over to S.I. Pratibha Sharma, PW-80, for

investigation.  

15. On  the  same  night,  i.e.,  16/17.12.2012,  the

prosecutrix underwent first surgery around 4:00 a.m. The

prosecutrix was operated by PW-50, Dr. Raj Kumar Chejara,

Safdarjung  Hospital,  New  Delhi  and  his  surgery  team

comprised of Dr. Gaurav and Dr. Piyush.  OT notes have

been  exhibited  as  Ex.PW-50/A  and  Ex.PW-50/B.  The

second and third surgeries were performed on 19.12.2012

and 23.12.2012 respectively.

16. During  the  period  the  prosecutrix  was  undergoing

surgeries one after the other, and when all were concerned

about her progress of recovery, the prosecution was carrying

out its investigation in a manner that it thought systematic.

The first and foremost responsibility of the prosecution was

to find out, on the basis of the information given, about the

accused  persons.  That  is  how  the  prosecution  story

uncurtains.

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17. On  17.12.2012,  supplementary  statements  of  PW-1

were recorded by PW-80, SI Pratibha Sharma.  Based on the

description  of  the  bus  given  by  PW-1,  the  offending  bus

bearing  No.  DL-1PC-0149 was  found parked in Ravi  Das

Jhuggi Camp, R.K. Puram, New Delhi.  PW-80 along with

PW-74, SI Subhash Chand, and PW-65, Ct. Kripal Singh,

went to the spot and found accused Ram Singh sitting in

the bus.  On seeing the police, Ram Singh got down from

the bus and started running.  The police intercepted Ram

Singh and he was arrested and interrogated.  

18. Personal search was conducted on Ram Singh and his

disclosure statement, Ex. P-74/F, was recorded by PW-74

and his team. Based on his disclosure statement, PW-74,

Investigating Officer, SI Subhash Chand, seized the bus, Ex.

P1, vide Seizure Memo  Ex. PW- 74/K.  PW-74 seized the

seat cover of the bus of red colour and its curtains of yellow

colour.  On the bus, ‘Yadav’ was found written on its body

with green and yellow stripes on it.  The Investigating Officer

also  seized  the  key  of  the  bus,  Ex.  P-74/2,  vide  Seizure

Memo  Ex. PW-74/J.  The documents of the bus were also

seized.   The  disclosure  statement  of  Ram  Singh,  Ex.

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PW-74/F,  led to the recovery of  his  bloodstained clothes,

iron rods and debit card of Asha Devi, the mother of  the

prosecutrix.  PW-74,  Investigating  Officer,  also  recovered

ashes and the partly  unburnt  clothes lying near  the bus

which was seized vide Memo Exhibit No. PW-74/M and Unix

Mobile Phone with MTNL Sim, Ex. P-74/5, vide Memo Ex.

P/74E.  The Investigating Officer prepared the site plan of

the place where the bus was parked and from where the

ashes were found.

The  arrest  of  the  accused  persons  and  seizure  of

articles

19. The  arrest  of  accused,  Ram  Singh,  also  led  to  the

arrest of two other accused persons, namely, accused Vinay

Sharma  and  accused  Pawan  @  Kaalu.  On 18.12.2012,

accused  Mukesh  was  apprehended from village  Karoli  by

PW-58, SI Arvind Kumar, and was produced before PW-80,

SI Pratibha Sharma.  At the instance of  accused Mukesh

Singh, a Samsung Galaxy Trend DUOS Blue Black mobile

belonging to the informant was recovered. On 23.12.2012,

at his instance, PW-80 prepared the route chart of the route

where Mukesh drove the bus at the time of the incident, Ex

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PW-80/H.  Besides that, he got recovered his bloodstained

clothes  from  the  garage  of  his  brother  at  Anupam

Apartment,  Saidulajab,  Saket,  New  Delhi.   He  opted  to

undergo  Test  Identification  Parade.   In  the  Test

Identification Parade conducted by PW-17, Sandeep Garg,

Metropolitan Magistrate, PW-1, identified accused-Mukesh.

20. Accused Pawan was apprehended and arrested about

1:15  p.m.  on  18.12.2012  vide  memo  Ex.PW-60/A;  his

disclosure,  Ex.PW-60/G, was  recorded  and  his  personal

search  was  conducted  vide  memo  Ex.PW-60/C.  In  his

disclosure  statement,  Pawan  pointed  out  Munirka  bus

stand where the prosecutrix and PW-1 boarded the bus and

memo  Ex.PW-68/I  was prepared.  He also pointed at the

spot where PW-1 and the prosecutrix were thrown out of the

bus and memo Ex.PW-68/J was prepared in this regard.

21. Accused Vinay Sharma got recovered his bloodstained

clothes,  PW-1’s  Hush  Puppies  leather  shoes  and  the

prosecutrix’s mobile phone, Nokia Model 3110 of black grey

colour.  Further  recoveries  were  made  pursuant  to  his

supplementary disclosure. Similarly, accused Pawan Kumar

got  recovered  from  his  jhuggi  his  bloodstained  clothes,

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shoes and also a wrist watch make Sonata and Rs. 1000/-

robbed from PW-1.

22. On  21.12.2012,  accused  Akshay  was  also  arrested

from Village Karmalahang, PS Tandwa, Aurangabad, Bihar.

His  disclosure  statement  was  recorded.   He  led  to  his

brother’s house in village Naharpur, Gurgaon, Haryana and

got recovered his bloodstained clothes.  A ring belonging to

PW-1,  two  metro  cards  and  a  Nokia  phone  with  SIM  of

Vodafone  Company  was  also  recovered  from  Akshay.

Akshay  also  opted  to  undergo  TIP  and  was  positively

identified  by  PW-1.   The  mobile  phones  of  the  accused

persons were seized and call details records with requisite

certificates under Section 65-B of Indian Evidence Act were

obtained by the police.

23. After getting arrested, all the accused were medically

examined.   The  MLCs  of  all  the  accused  persons  show

various  injuries  on  their  person;  viz.,  in  the  MLC,

Ex.PW-2/A, of accused Ram Singh, PW-2, Dr. Akhilesh Raj,

has opined that the injuries mentioned at point  Q to P-1

could  possibly  be  struggle  marks.   Similar  opinions were

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received in  respect  of  other  accused persons.   PW-7,  Dr.

Shashank Pooniya, has opined that the injuries present on

the  body  of  accused  Akshay  were  a  week  old  and  were

suggestive  of  struggle  as per  MLC,  Ex.PW-7/A.  MLC,

Ex.PW-7/B, pertaining to accused Pawan shows that he had

suffered injuries on his body which were simple in nature.

The MLC, Ex.PW-7/C, of accused Vinay Sharma proved that

he too suffered injuries, simple in nature, 2 to 3 days old,

though injury No. 8 was claimed to be self inflicted by the

accused himself.

Further  treatment  of  the  victim  and  filing  of

chargesheet  

24. While the arrest took place, as indicated earlier,  the

victim underwent second and third surgeries on 19.12.2012

and  23.12.2012  respectively.  The  second  surgery  was

performed  on  the  prosecutrix  on  19.12.2012  by  PW-50,

Dr.  Raj  Kumar  Chejara,  along  with  his  operating  team

consisting  of  Prof.  Sunil  Kumar,  Dr.  Pintu  and

Dr. Siddharth. Dr. Aruna Batra and Dr. Rekha Bharti were

present along with the anaesthetic team. The clinical notes,

Ex.PW-50/C, and notes prepared by the Gynaecology team,

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Ex.PW-50/D,  can  be  referred  to  in  this  regard.  The

prosecutrix  was  re-operated  on  23.12.2012  for  peritoneal

lavage and placement  of  drain under  general  anaesthesia

and the notes are exhibited as Ex.PW-50/E.

25. As  the  condition  of  the  prosecutrix  did  not  improve

much, the prosecution thought it appropriate to record the

statements  of  the  prosecutrix.  The  said  statements  have

been  conferred  the  status  of  dying  declaration.  As  is

noticeable  from  the  evidence,  PW-49  also  deposed  that

certain  exhibits  were  collected  for  examination  such  as

outer clothes, i.e., sweater, sheet covering the patient; inner

clothes,  i.e.,  Sameej  torned;  dust;  grass present in  hairs,

dust in clothes; debris from in between fingers; debris from

nails; nail clippings; nail scrapings; breast swab; body fluid

collection (swab from saliva); combing of pubic hair; matted

pubic hair, clipping of pubic hair; cervical mucus collection;

vaginal  secretions;  vaginal  culture;  washing from vaginal;

rectal swab; oral swab; urine and oxalate blood vial; blood

samples, etc.

26. On 21.12.2012, on being declared fit, the second dying

declaration was recorded by PW-27, Smt. Usha Chaturvedi,

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Sub-Divisional  Magistrate.  This  dying  declaration  is  an

elaborate  one  where  the  prosecutrix  has  described  the

incident  in  detail  including  the  insertion  of  rods  in  her

private  parts.  She  also  stated  that  the  accused  were

addressing  each  other  with  names  like,  “Ram  Singh,

Thakur, Raju, Mukesh, Pawan and Vinay”.

27. On 25th December,  2012,  at  1:00 p.m.,  PW-30,  Shri

Pawan Kumar, Metropolitan Magistrate, went to the hospital

to  record  the  dying  declaration  of  the  prosecutrix.  The

attending doctors opined that the prosecutrix was not in a

position  to  speak  but  she  was  otherwise  conscious  and

responded  by  way  of  gestures.  Accordingly,  PW-30  put

questions in such a manner as to enable her to narrate the

incident  by  way  of  gestures  or  writing.   Her  statement,

Ex.PW-30/D, was recorded by PW-30 in the form of dying

declaration    by  putting  her  questions  in  the  nature  of

multiple  choice  questions.  The  prosecutrix  gave  her

statement/dying declaration through gestures and writings,

Exhibit PW-30/D, the contents of which will be discussed

later.

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28. At this juncture, the cure looked quite distant.   The

health condition was examined on 26th December 2012 by a

team  of  doctors  comprising  of  Dr.  Sandeep  Bansal,

Cardiologist, Dr. Raj Kumar Chejara, Dr. Sunil Kumar, Dr.

Arun Batra and Dr. P.K. Verma and since the condition of

the  prosecutrix  was  critical,  it  was  decided  that  she  be

shifted abroad for further treatment and fostering oasis of

hope  on  27th December,  2012,  she  was  shifted  to  Mt.

Elizabeth  Hospital,  Singapore,  for  her  further  treatment.

The  hope  and expiration became a  visible  mirage  as  the

prosecutrix died on 29th December, 2012 at Mt. Elizabeth

Hospital,  Singapore.  Dr.  Paul  Chui,  PW-34,  Forensic

Pathologist, Health Sciences Authority, Singapore, deposed

that  her  exact  time  of  death  was  4:45  a.m.  on  29th

December,  2012.  The  death  occurred  at  Mt.  Elizabeth

Hospital  and  the  cause  of  her  death  was  sepsis  with

multiple  organ  failure  following  multiple  injuries.  The

original post mortem report is Ex. PW-34/A and its scanned

copy  is  Ex.PW-34/B;  the  Toxicology  Report  dated  4th

January,  2013  is  Exhibit  PW-34/C.  In  the  post-mortem

report, Ex.PW-34/A, besides other serious injuries, various

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bite marks have been observed on her face, lips, jaw, rear

ear, on the right and left breasts, left upper arm, right lower

limb, right upper inner thigh (groin), right lower thigh, left

thigh lateral and left leg lower anterior.  

29. It  is  apt  to  note  here  that  during  the  course  of

investigation  (keeping  in  mind  that  the  vehicle  was

identified), the investigating agency went around to collect

the electronic evidence. A CCTV footage produced by PW-25,

Rajender  Singh  Bisht,  in  a  CD,  Ex.PW-25/C-1  and

PW-25/C-2,  and  the  photographs,  Ex.PW-25/B-1  to

Ex.PW-25/B-7,  were  collected  from  the  Mall,  Select  City

Walk,  Saket  to  ascertain  the  presence  of  PW-1  and  the

prosecutrix at the Mall. The certificate under Section 65-B

of the Indian Evidence Act, 1872 (for short, “Evidence Act”)

with respect to the said footage is proved by PW-26, Shri

Sandeep  Singh,  vide  Ex.PW-26/A.  Another  important

evidence is the CCTV footage of Hotel Delhi 37 situated near

the dumping spot. The said footage showed a bus matching

the  description  given  by  the  informant  at  9:34  p.m.  and

again  at  9:53  p.m.  The  said  bus  had  the  word  “Yadav”

written on one side.  Its exterior was of white colour having

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yellow and green stripes and its front tyre on the left side

did not have a wheel cap. The description of the bus was

affirmed by PW-1’s statement.  The CCTV footage stored in

the  pen  drive,  Ex.P-67/1,  and  the  CD,  Ex.P-67/2,  were

seized  by  the  I.O.  vide  seizure  memo  Ex.PW-67/A  from

PW-67, Pramod Kumar Jha, the owner of Hotel Delhi 37.

The same were identified by PW-67, Pramod Jha, PW-74, SI

Subhash, and PW-76, Gautam Roy, from CFSL during their

examination in Court. PW-78, SHO, Inspector Anil Sharma,

had testified that the said CCTV footage seized vide seizure

memo  Ex.PW-67/A  was  sent  to  the  CFSL  through  S.I.

Sushil  Sawaria  and  PW-77,  the  MHC(M).  Thereafter,  on

01.01.2013, the report of the CFSL was received.

30. As the prosecution story would further undrape, in the

course  of  investigation,  the  test  identification parade was

carried out.   We shall advert to the same at a later stage.   

31.  We  had  indicated  in  the  beginning  that  the

investigating  team  had  taken  aid  of  modern  methods  to

strengthen its case.  The process undertaken, the method

adopted  and  the  results  are  severely  criticized  by  the

learned counsel for the appellants to which we shall later on

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revert  to  but  presently  to  the  steps  taken  by  the

investigating  agency  during  investigation.   With  the

intention to cover the case from all possible spheres and to

establish the allegations with the proof of conclusivity and

not to give any chance of doubt, the prosecution thought

that it was its primary duty to ascertain the identity of the

accused persons; and for the said purpose, it  carried out

DNA analysis and fingerprint and bite mark analysis.

Collection of samples and identity of accused persons

32. The blood sample of the informant was collected by Dr.

Kamran Faisal, PW-15, Safdarjung Hospital, on 25.12.2012

and was handed over to SI Pratibha Sharma, PW-80, vide

seizure  memo  Ex.PW-15/A  by  Constable  Suresh  Kumar,

PW-42. Similarly, as mentioned earlier, PW-49, Dr. Rashmi

Ahuja, had collected certain samples from the person of the

prosecutrix which are reflected in Ex.PW-49/A from point B

to  B.   All  the  samples  were  collected  by  Inspector  Raj

Kumari, PW-59, vide seizure memo Ex.PW-59/A and were

handed over to PW-80, SI Pratibha Sharma, at Safdarjung

Hospital in the morning of 17.12.2012. Also the samples of

gangrenous  bowels  of  the  prosecutrix  were  taken  on

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24.12.2012 and were  handed over  to  SI  Gajender  Singh,

PW-55,  who  seized  the  same  vide  seizure  memo

Ex.PW-11/A.  All  the  samples  were  deposited  with  the

MHC(M)  and  were  not  tampered  with  in  any  manner.  A

specimen of scalp hair of the prosecutrix was also taken on

24.12.2012 by Dr. Ranju Gandhi, PW-29, and was handed

over  to  PW-  80,  SI  Pratibha  Sharma,  vide  seizure  memo

Ex.PW-29/A.

33. The  accused  were  also  subjected  to  medical

examination  and  samples  were  taken  from  their  person

which were sent for DNA analysis.  

34. DNA analysis was done at the behest of  PW-45, Dr.

B.K. Mohapatra, Sr. Scientific Officer, Biology, CFSL, CBI,

and Biological Examination and DNA profiling reports were

prepared which are exhibited as Ex. PW-45/A-C. The report,

after analysing the DNA profiles generated from the known

samples of the prosecutrix, the informant, and each of the

accused, concluded that:

“An analysis of the above shows that the samples were authentic and established the identities of the persons mentioned above beyond reasonable doubt.”

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35. On  17.12.2012  and  18.12.2012,  a  team  of  experts

from the CFSL went to Thyagraj Stadium and lifted chance

prints  from the  bus  in  question,  Ex.P-1.  On 28.12.2012,

PW-78,  Inspector  Anil  Sharma  of  P.S.  Vasant  Vihar,  the

then S.H.O. of  Police Station Vasant Vihar, requested the

Director, CFSL, for taking digital palm prints and foot prints

of  all  the  accused  persons  vide  his  letter  Ex.PW-46/C.

Pursuant to the said request made by PW-78, Inspector Anil

Sharma,  the  CFSL,  on  31.12.2012,  took  the  finger/palm

prints and foot prints of the accused persons at Tihar Jail.

After comparing the chance prints lifted from the bus with

the  finger  prints/palm  prints  and  foot  prints  of  all  the

accused persons, PW-46, Shri A.D. Shah, Senior Scientific

Officer  (Finger  Prints),  CFSL,  CBI  submitted  his  report

Ex.PW-46/D. In the report,  the chance prints  of  accused

Vinay Sharma were found to have matched with those on

the bus in question.  

36. Bite  mark  analysis  was  also  undertaken  by  the

investigative team to establish the identity and involvement

of  the  accused  persons.  PW-66,  Asghar  Hussain,  on  the

instructions of the I.O., S.I. Pratibha Sharma, had taken 10

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photographs of different parts of the body of the prosecutrix

at SJ Hospital on 20.12.2012 between 4:30 p.m. and 5:00

p.m.  which  were  marked  as  Ex.PW-66/B  (Colly.)  [10

photographs of 5” x 7” each] and Ex.PW-66/C (Colly.) [10

photographs of 8” x 12” each]. PW-66 also proved in Court

the certificate provided by him in terms of Section 65-B of

the  Evidence  Act  in  respect  of  the  photographs,  Ex.

PW-66/A.  Thereafter,  PW-18,  SI  Vishal  Choudhary,

collected  the  photographs  and  the  dental  models  from

Safdarjung Hospital on 01.01.2013 and duly deposited the

same in the malkhana after he, PW-18, had handed them

over to the S.H.O. Anil Sharma, PW-78. The same were later

entrusted to S.I. Vishal Choudhary, PW-18 on 02.01.2013,

which is  proved vide  RC No.183/21/12 and exhibited  as

Ex.PW-77/V. PW-71, Dr. Ashith B. Acharya, submitted the

final  report  in  this  regard  which  is  exhibited  as  Ex.

PW-71/C. In the said report, he has concluded that at least

three  bite  marks  were  caused  by  accused  Ram  Singh

whereas  one  bite  mark  has  been identified  to  have  been

most likely caused by accused Akshay.

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37. It  is  seemly  to  note  here  that  on  completion  of  the

investigation,  the  chargesheet  came  to  be  filed  on

03.01.2013  under  Section  365/376(2)(g)/377/307/395/

397/302/396/412/201/120/34  IPC  and  supplementary

chargesheet was filed on 04.02.2013.   

Charge and examination of witnesses, conviction and awarding of sentence by the trial court

38. After the case was committed to the Court of Session,

all the accused were charged for the following offences:

1. u/s 120-B IPC;

2. u/s. 365 / 366 / 307 / 376 (2)(g) IPC / 377  IPC read  with Section 120-B IPC;  

3. u/s. 396 IPC read with Section 120-B IPC  and /or;

4. u/s. 302 IPC read with Section 120-B IPC;  

5. u/s. 395 IPC read with Section 397 IPC read with 120-B IPC;

6. u/s. 201 IPC read with Section 120-B IPC  and;

7. u/s. 412 IPC.  

During  the  course  of  trial,  accused  Ram  Singh

committed  suicide  and  the  proceedings  qua  him  stood

abated vide order dated 12.10.2013.

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39. It  is  worthy  to  mention  here  that  in  order  to  bring

home  the  charge,  the  prosecution  initially  examined  82

witnesses  and  thereafter,  the  statements  of  the  accused

persons  were  recorded  and  they  abjured  their  guilt.

Accused   Pawan  Gupta  @  Kaalu  examined  Lal  Chand,

DW-1, Heera Lal, DW-2, Ram Charan, DW-3, Gyan Chand,

DW-4, and Hari Kishan Sharma, DW-16, in support of his

plea. Accused Vinay Sharma examined Smt. Champa Devi,

DW-5,  Hari  Ram  Sharma,  DW-6,  Kishore  Kumar  Bhat,

DW-7, Sri Kant, DW-8, Manu Sharma, DW-9, Ram Babu,

DW-10, and Dinesh, DW-17, to establish his stand. Accused

Akshay  Kumar  Singh  @  Thakur  examined  Chavinder,

DW-11,  Sarju  Singh,  DW-12,  Raj  Mohan  Singh,  DW-13,

Punita  Devi,  DW-14,  and  Sarita  Devi,  DW-15.   As  the

factual  matrix  would  reveal,  subsequently  three  more

prosecution witnesses were examined and on behalf of the

defence, two witnesses were examined.

40. Learned  Sessions  Judge,  vide  judgment  dated

10.09.2013,  convicted  all  the  accused  persons,  namely,

Akshay  Kumar  Singh  @ Thakur,  Vinay  Sharma,  Mukesh

and Pawan Gupta @ Kaalu under Section 120B IPC for the

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offence of criminal conspiracy; under Section 365/366 IPC

read with Section 120B  IPC for abducting the victims with

an intention to force the prosecutrix to illicit  intercourse;

under  Section  307  IPC  read  with  Section  120B  IPC  for

attempting to kill PW-1, the informant; under Section 376(2)

(g)  IPC for  committing  gang  rape  with  the  prosecutrix  in

pursuance of their conspiracy; under Section 377 IPC read

with  Section  120B  IPC  for  committing  unnatural  offence

with  the  prosecutrix;  under  Section  302  IPC  read  with

Section  120B IPC  for  committing  murder  of  the  helpless

prosecutrix;  under  Section  395  IPC  for  conjointly

committing  dacoity  in  pursuance  of  the  aforesaid

conspiracy; under Section 397 IPC read with Section 120B

IPC for the use of iron rods and for attempting to kill PW-1

at the time of committing robbery; under Section 201 IPC

read with Section 120B IPC for destroying of evidence and

under Section 412 IPC for the offence of being individually

found in possession of  the stolen property which they all

knew was a stolen booty of dacoity committed by them.

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41. After  recording  the  conviction,  as  aforesaid,  the

learned  trial  Judge  imposed  the  sentence,  which  we

reproduce:

“(a) The convicts, namely, convict Akshay Kumar Singh @ Thakur, convict Mukesh, convict Vinay Sharma and convict  Pawan Gupta @ Kaalu are sentenced to death for offence punishable under Section 302 Indian Penal Code.  Accordingly, the convicts to be hanged by neck till they are dead. Fine of Rs.10,000/- to each of the convict is also imposed and in default of payment of fine such convict shall undergo simple imprisonment for a period of one month.

(b) for  the  offence  under  Section 120-B IPC I award  the  punishment  of  life  imprisonment  to each of the convict and fine of Rs.5000/- to each of  them.   In  default  of  payment  of  fine  simple imprisonment for one month to such convict;

(c) for  the  offence  under  Section  365  IPC  I award the punishment of seven years to each of the convict and fine of Rs.5000/- to each of them. In default of payment of fine simple imprisonment for one month to such convict;

(d) for  the  offence  under  Section  366  IPC  I award the punishment of seven years to each of the convict person and fine of Rs.5000/- to each of  them.   In  default  of  payment  of  fine  simple imprisonment for one month to such convict;

(e) for the offence under Section 376(2)(g) IPC I award  the  punishment  of  life  imprisonment  to each of the convict person with fine of Rs.5000/- to each of them.  In default  of  payment of  fine simple  imprisonment  for  one  month  to  such convict;

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(f) for  the  offence  under  Section  377  IPC  I award the punishment of ten years to each of the convict person and fine of Rs.5000/- to each of them.   In  default  of  payment  of  fine  simple imprisonment for one month to such convict;

(g) for  the  offence  under  Section  307  IPC  I award the punishment of seven years to each of the convict person and fine of Rs.5000/- to each of  them.   In  default  of  payment  of  fine  simple imprisonment for one month to such convict;

(h) for  the  offence  under  Section  201  IPC  I award the punishment of seven years to each of the convict person and fine of Rs.5000/- to each of  them.   In  default  of  payment  of  fine  simple imprisonment for one month to such convict;

(i) for the offence under Section 395 read with Section 397 IPC I award the punishment of ten years to each of  the convict  person and fine of Rs.5000/- to each of them.  In default of payment of  fine  simple  imprisonment  for  one  month  to such convict;

(j) for  the  offence  under  Section  412  IPC  I award the punishment of ten years to each of the convict person and fine of Rs.5000/- to each of them.   In  default  of  payment  of  fine  simple imprisonment for one month to such convict;”

42. Be  it  noted,  the  learned  trial  Judge  directed  the

sentences  under  Sections  120B/365/366/376(2)(g)/

377/201/395/397/412 IPC to  run concurrently  and that

the  benefit  under  Section  428  CrPC  would  be  given

wherever  applicable.  He  further  recommended  that

appropriate  compensation  under  Section  357A  CrPC  be

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awarded  to  the  legal  heirs  of  the  prosecutrix  and,

accordingly, sent a copy of the order to the Secretary, Delhi

Legal  Services  Authority,  New  Delhi,  for  deciding  the

quantum of compensation to be awarded under the scheme

referred to in sub-section (1)  of  Section 357A CrPC. That

apart, as death penalty was imposed, he referred the matter

to the High Court for confirmation under Section 366 CrPC.

The view of the High court

43. The  High  Court,  vide  judgment  dated  13.03.2014,

affirmed  the  conviction  and  confirmed  the  death  penalty

imposed upon the accused by expressing the opinion that

under the facts and circumstances of the case, imposition of

death  penalty  awarded  by  the  trial  court  deserved  to  be

confirmed in respect of all the four convicts.  As the death

penalty was confirmed, the appeals preferred by the accused

faced the inevitable result, that is, dismissal.  

Commencement  of  hearing  and  delineation  of contentions  

44. As we had stated earlier, the grievance relating to the

lodging  of  FIR  and  the  manner  in  which  it  has  been

registered  has  been  seriously  commented  upon  and

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criticized by  the  learned counsel  for  the  appellants.   Mr.

Sharma, learned counsel for the appellants - Mukesh and

Pawan Kumar Gupta, and Mr. Singh, learned counsel for

the appellants – Vinay Sharma and Akshay Kumar Singh,

have stressed with all the conviction at their command that

when a matter of confirmation of death penalty is assailed

before this Court, it is the duty of this Court to see every

aspect in detail and not to treat it as an ordinary appeal.

45. As the argument commenced with the said note,  we

thought it appropriate to grant liberty to the learned counsel

for  the  appellants  to  challenge  the  conviction  and  the

imposition of death sentence from all  aspects and counts

and to dissect the evidence and project the irregularities in

arrest  and investigation.   Learned counsel  for  the parties

argued  the  matter  for  considerable  length  of  time  and

hence, we shall deal with every aspect in detail.   

Delayed registration of FIR

46. The  attack  commences  with  the  registration  of  FIR

and,  therefore,  we  shall  delve  into  the  same  in  detail.

PW-57,  ASI  Kapil  Singh,  the  Duty  Officer  at  P.S.  Vasant

Vihar,  New  Delhi,  on  the  intervening  night  of

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16/17.12.2012, received  information about the incident. He

lodged DD No.6-A, Ex.PW-57/A, and passed on the said DD

to PW-74, SI Subhash Chand, who was on emergency duty

that  night  at  P.S.  Vasant  Vihar.   Immediately  thereafter,

PW-57, ASI Kapil  Singh, received yet another information

qua admission of the prosecutrix and of the informant in

Safdarjung Hospital and he lodged DD No.7-A, Ex.PW-57/B,

and also passed on the said DD to SI Subhash Chand.  

47. PW-74,  SI  Subhash Chand,  then left  for  Safdarjung

Hospital where he met PW-59, Inspector Raj Kumari, and

PW-62, SI Mahesh Bhargava.  PW-59, Inspector Raj Kumari,

handed over to him the MLC and the exhibits concerning

the prosecutrix as given to her by the treating doctor and

PW-62, SI Mahesh Bhargava, handed over to him the MLC

of the informant. PW-74, SI Subhash Chand, then recorded

the statement, Ex.PW-1/A, of the informant at 1:30 a.m. on

17.12.2012 and made his endorsement, Ex.PW-74/A, on it

and he gave the rukka to PW-65, Ct. Kripal Singh, for being

taken to P.S. Vasant Vihar, New Delhi and to get the FIR

registered.  PW-65,  Ct.  Kripal  Singh,  then  went  to  P.S.

Vasant  Vihar,  New Delhi  and at  5:40 a.m.  and gave  the

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rukka to PW-57, ASI Kapil Singh, the Duty Officer, who, in

turn,  recorded the  FIR,  Ex.PW-57/D,  made  endorsement,

Ex.PW-57/E,  on  the  rukka  and  returned  it  to  PW-65,

Ct. Kripal Singh, who then handed it to PW-80, SI Pratibha

Sharma, at P.S. Vasant Vihar to whom the investigation was

entrusted.

48. SI  Subhash  Chand,  PW-74,  deposed  that  the

statement  of  the  informant  might  have  been  recorded

around  3:45  a.m.  although  PW-1  deposed  that  his

statement was recorded at 5:30 a.m. It was submitted that

the original statement was recorded by HC Ram Chander,

PW-73,  and  the  investigation  process  had  already  begun

around 1:15 a.m. and the subsequent information from the

informant which is stated to be the first information was, in

fact,  crafted  after  the  investigating  agency  decided  on  a

course of action.  It is submitted by the learned counsel for

the  appellants  that  the  delay  in  the  FIR  raises  serious

doubts.

49. Delay  in  setting  the  law  into  motion  by  lodging  of

complaint  in  court  or  FIR  at  police  station  is  normally

viewed by courts with suspicion because there is possibility

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of concoction of evidence against an accused. Therefore, it

becomes  necessary  for  the  prosecution  to  satisfactorily

explain the delay.  Whether the delay is so long as to throw

a cloud of suspicion on the case of the prosecution would

depend upon a variety of factors.   Even a long delay can be

condoned if the informant has no motive for implicating the

accused.     

50. In  the  present  case,  after  the  occurrence,  the

prosecutrix and PW-1 were admitted to the hospital at 11:05

p.m.; the victim was admitted in the Gynaecology Ward and

PW-1,  the  informant,  in  the  casualty  ward.  PW-74,  SI

Subhash Chand, recorded the statement of  PW-1 at 3:45

a.m.   After  PW-1  and  the  prosecutrix  were  taken  to  the

hospital for treatment, the statement of PW-1 was recorded

by PW-74, SI Subhash Chand, at 1:37 a.m. and the same

was  handed  over  to  PW-  65,  Constable  Kripal  Singh,  to

PW-57, Kapil Singh. In the initial stages, the intention of all

concerned must have been to save the victim by giving her

proper medical treatment.  Even assuming for the sake of

argument that  there is  delay,  the same is  in consonance

with natural human conduct.

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51. In this case, there is no delay in the registration of FIR.

The sequence of events are natural and in the present case,

after the occurrence, the victim and PW-1 were thrown out

of the bus at Mahipalpur in semi-naked condition and were

rescued by PW-72, Raj Kumar,  and PW-70, Ram Pal, both

EGIS Infra Management India  (P)  Limited employees.  The

victim was seriously injured and was in a critical condition

and it has to be treated as a natural conduct that giving

medical  treatment  to  her  was  of  prime importance.   The

admission of PW-1 and the victim in the hospital and the

completion of procedure must have taken some time.  PW-1

himself  was injured and was  admitted to  the  hospital  at

11:05 p.m. No delay can be said to have been caused in

examining PW-1, the informant.  

52. In the context of belated FIR, we may usefully refer to

certain authorities in the field.  In Ram Jag and others v.

State of U.P.1 ,  it  was held as that  witnesses cannot be

1

 (1974) 4 SCC 201 = AIR 1974 SC 606

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called  upon  to  explain  every  hour’s  delay  and  a

commonsense view has to be taken in ascertaining whether

the first information report was lodged after an undue delay

so  as  to  afford  enough  scope  for  manipulating  evidence.

Whether  the  delay  is  so  long  as  to  throw  a  cloud  of

suspicion on the seeds of the prosecution case must depend

upon a  variety  of  factors  which would  vary  from case  to

case. Even a long delay in filing report of an occurrence can

be  condoned  if  the  witnesses  on  whose  evidence  the

prosecution  relies  have  no  motive  for  implicating  the

accused. On the other hand, prompt filing of the report is

not an unmistakable guarantee of  the truthfulness of  the

version of the prosecution.”

53. In  State of Himachal Pradesh v. Rakesh Kumar2,

the  Court  repelled  the  submission  pertaining  to  delay  in

lodging of the FIR on the ground that the first endeavour is

always to take the person to the hospital immediately so as

to provide him medical treatment and only thereafter report

the  incident  to  the  police.   The  Court  in  the  said  case

further held that every minute was precious and, therefore,

2  (2009) 6 SCC 308

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it is natural that the witnesses accompanying the deceased

first tried to take him to the hospital so as to enable him to

get immediate medical treatment. Such action was definitely

in accordance with normal human conduct and psychology.

When  their  efforts  failed  and  the  deceased  died  they

immediately reported the incident to the police.  The Court,

under the said circumstances ruled that in fact, it  was a

case of quick reporting to the police.

Judged on the anvil of the aforesaid decisions, we have

no hesitation in arriving at the conclusion that there was no

delay in lodging of the FIR.  

Non-mentioning of assailants in the FIR

54. An argument was advanced assailing the FIR to the

effect that the FIR does not contain:  (i)  the names of the

assailants  either  in  the  MLC,  Ex.PW-51/A,  or  in  the

complaint,  Ex.PW-1/A, (ii)  the description of  the bus and

(iii) the use of iron rods.

55. As far as the argument that the FIR does not contain

the names of all the accused persons is concerned, it has to

be kept in mind that  it  is  settled law that  FIR is  not  an

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encyclopedia of facts and it is not expected from a victim to

give details of the incident either in the FIR or in the brief

history given to the  doctors.   FIR is  not  an encyclopedia

which  is  expected  to  contain  all  the  details  of  the

prosecution case; it may be sufficient if the broad facts of

the  prosecution  case  alone  appear.   If  any  overt  act  is

attributed to a particular accused among the assailants, it

must be given greater assurance.   In this context, reference

to certain authorities would be fruitful.   

56. In  Rattan Singh v. State of H.P.3, the Court, while

repelling the submission for accepting the view of the trial

court took note of the fact that there had been omission of

the details and observed that the criminal courts should not

be fastidious with mere omissions in the first information

statement since such statements can neither be expected to

be a chronicle of every detail of what happened nor expected

to contain an exhaustive catalogue of the events which took

place. The person who furnishes the first information to the

authorities might be fresh with the facts but he need not

necessarily have the skill or ability to reproduce details of

3

 (1997) 4 SCC 161

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the entire story without anything missing therefrom. Some

may miss even important details in a narration. Quite often,

the  police  officer,  who  takes  down  the  first  information,

would record what the informant conveys to him without

resorting to any elicitatory exercise. It is voluntary narrative

of the informant without interrogation which usually goes

into such statement and hence, any omission therein has to

be considered along with the other evidence to determine

whether  the  fact  so  omitted  never  happened  at  all.  The

Court  also  referred  to  the  principles  stated  in  Pedda

Narayana v. State of A.P.4;  Sone Lal v. State of U.P.5;

Gurnam Kaur v. Bakshish Singh6.

57. In  State of Uttar Pradesh v. Naresh and others7,

reiterating the principle, the Court opined that it is settled

legal  proposition  that  FIR  is  not  an  encyclopedia  of  the

entire case. It may not and need not contain all the details.

Naming of the accused therein may be important but not

naming of the accused in FIR may not be a ground to doubt

the contents thereof in case the statement of the witness is

found to be trustworthy. The court has to determine after 4  (1975) 4 SCC 153 5  (1978) 4 SCC 302 6  1980 Supp SCC 567 7  (2011) 4 SCC 324

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examining the entire factual scenario whether a person has

participated in the crime or has been falsely implicated. The

informant  fully  acquainted  with  the  facts  may  lack

necessary skill or ability to reproduce details of the entire

incident  without  anything  missing  from  the  same.  Some

people  may  miss  even  the  most  important  details  in

narration. Therefore, in case the informant fails to name a

particular accused in the FIR, this ground alone cannot tilt

the balance of the case in favour of the accused.  For the

aforesaid  purpose  reliance  was  placed  upon  Rotash v.

State of Rajasthan8 and Ranjit Singh v. State of M.P.9

58. In  Rotash (supra)  this  Court  while  dealing with the

omission of naming an accused in the FIR opined that:  

“14. …. We, however, although did not intend to ignore the importance of naming of an accused in the first information report, but herein we have seen  that  he  had  been  named  in  the  earliest possible opportunity. Even assuming that PW 1 did not name him in the first information report, we  do  not  find  any  reason  to  disbelieve  the statement of Mooli Devi, PW 6. The question is as to whether a person was implicated by way of an afterthought or not must be judged having regard to  the  entire  factual  scenario  obtaining  in  the case. PW 6 received as many as four injuries.”

8  (2006) 12 SCC 64 9  (2011) 4 SCC 336

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59. While  dealing  with  a  similar  issue  in  Animireddy

Venkata Ramana v.  Public Prosecutor10, the Court held

as under:

“13.  …  While  considering  the  effect  of  some omissions in the first information report on the part of the informant, a court cannot fail to take into  consideration  the  probable  physical  and mental condition of the first informant. One of the important factors which may weigh with the court is as to whether there was a possibility of false implication of the appellants. Only with a view to test the veracity of the correctness of the contents of  the  report,  the  court  applies  certain well-known principles of caution.””

Thus, apart from other aspects what is required to be

scrutinized is that there is no attempt for false implication,

application  of  principle  of  caution  and  evaluation  of  the

testimonies  of  the  witnesses  as  regards  their

trustworthiness.

60. In view of the aforesaid settled position of law, we are

not disposed to accept the contention that omission in the

first statement of the informant is fatal to the case.  We are

disposed to think so, for the omission has to be considered

in the backdrop of the entire factual scenario, the materials

brought  on  record  and  objective  weighing  of  the

10  (2008) 5 SCC 368

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circumstances.   The  impact  of  the  omission,  as  is

discernible from the authorities, has to be adjudged in the

totality  of  the  circumstances  and  the  veracity  of  the

evidence.  The involvement of the accused persons cannot

be  determined  solely  on  the  basis  of  what  has  been

mentioned in the FIR.  

61. In  his  statement  recorded  in  the  early  hours  of

17.12.2012, PW-1 stated about going to the Select City Walk

Mall, Saket alongwith the prosecutrix and boarding the bus.

He  has  also  stated  about  the  presence  of  four  persons

sitting in the cabin of the bus and two boys sitting behind

the cabin and clearly stated about the overt act.  He has

broadly made  reference to the accused persons and also to

the overt acts.   There are no indications of  fabrication in

Ex.PW-1/A.  

62. The victim and PW-1 were thrown out of the bus and

after some time they were admitted to the hospital.  Both

the  injuries  on  PW-1’s  person  and  the  gruesome  acts

against  the  victim  must  have  put  him  in  a  traumatic

condition and it would not have been possible for him to

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recall and narrate the entire incident to the police at one

instance.  It cannot be said that merely because the names

of  the  accused  persons  are  not  mentioned in  the  FIR,  it

raises serious doubts about the prosecution case.

Appreciation of the evidence of PW-1

63. Having dealt with the contention of delay in lodging of

the FIR and omission of names in the FIR on the basis of

the  first  statement  of  PW-1,  we  may  now  proceed  to

appreciate  the  evidentiary  value  to  be  attached  to  the

testimony  of  PW-1  and  the  contentions  advanced  in  this

regard.

64. As  per  the  evidence  of  PW-1,  he  alongwith  the

prosecutrix,  on  the  fateful  day  about  3:30  p.m.,  took  an

auto  from  Dwarka, New  Delhi  to  Select  City  Walk  Mall,

Saket,  New Delhi,  where they watched a movie  till  about

8:30 p.m. and, thereafter, left the Mall. As they could not

get  an auto for  Dwarka, they  hired an auto for  Munirka

intending to take a bus (route No. 764) thereon. About 9:00

p.m. when they reached Munirka bus stand they boarded a

white  colour  chartered  bus  and  JCL  was  calling  for

commuters to Dwarka/Palam Mod.  While boarding the bus,

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PW-1 noted that the bus had “Yadav” written on its side;

had  yellow  and  green  lines/stripes;  the  entry  gate  was

ahead of its front left tyre; and its front tyre was without a

wheel  cover.  After  boarding,  he saw that  besides the boy

(JCL) who was calling for  passengers and the driver,  two

other  persons  were  sitting  in  the  driver’s  cabin  and  two

persons were seated inside the  bus on either  side of  the

aisle. After the bus left the  Munirka  bus stand, the lights

inside the bus were turned off. Then accused Ram Singh,

accused Akshay Thakur and the  JCL (all  three identified

later)  came  towards  PW-1  and  verbally  and  physically

assaulted him.  When PW-1 resisted them, accused Vinay

and accused Pawan were called along with iron rods and all

the accused persons started hitting PW-1 with the iron rods.

When the prosecutrix attempted to call for help, PW-1 and

the prosecutrix were robbed of their possessions.  

65. PW-1 was immobilized by accused Vinay and accused

Pawan  Kumar;  while  others,  viz.,  accused  Ram  Singh,

Akshay and the JCL took the prosecutrix to the rear side of

the bus whereafter  PW-1  heard the prosecutrix shout out

“chod  do,  bachao”  and  her  cry.  After  the  above,  three

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accused  committed  the  heinous  act  of  raping  the

prosecutrix, accused Vinay and Pawan then went to the rear

side of  the bus while the other three pinned down PW-1.

Thereafter, accused Mukesh (originally driving the bus) hit

PW-1 with the rod and went to the rear side of  the bus.

PW-1 also heard one of the accused saying “mar gayee, mar

gayee”.  After the incident,  PW-1 and the prosecutrix were

dragged  to  the  front  door  (because  the  rear  door  was

jammed) and were pushed out of the moving bus opposite

Hotel  Delhi  37.  After  being  thrown outside,  the  bus  was

turned in such a manner as to crush both of them but PW-1

pulled the prosecutrix and himself out of the reach of the

wheels of the bus and saved their lives.

66. The statement of the informant, PW-1, was recorded by

PW-74 in the early hours of 17.12.12 and Ex.PW-1/A is the

complaint.  In his chief examination, PW-74 deposes that he

had given the complaint (rukka) to Ct. Kripal Singh and sent

him to the police station at 5:10 a.m. which thereby leaves

the  time  of  recording  the  informant’s  statement

inconclusive.  Even if the version of PW-74 was to be relied

upon and the informant’s statement had been recorded by

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5:10 a.m., DD entry which forms Ex.PW-57/C records that

till 5:30 a.m.,  no punishable offence has been reported to

have  occurred  and  information  of  well-being  had  been

recorded despite the fact that previous DD entries had been

recorded on the basis of telephonic conversations between

police officers at the hospital,  the scene of crime and the

control room (both DD entries 6A and 7A had been recorded

on  the  basis  of  phone  conversations).  The  first

supplementary statement was recorded around 7:30 a.m.,

on  17.12.2012  specifically  with  respect  to  the  bus  in

question.  In  this  statement,  Ex.  PW-80/D1,  PW-1 merely

gives a generic description of the bus.  However, unlike in

Ex. PW-1/A, in his supplementary statement, the informant

states that the bus was white in colour with stripes of yellow

and  green,  that  there  were  3  x  2  seats  and  that  if  he

remembered anything else, he would reveal the same.  At

this time,  the investigating agency had neither seized the

bus  nor  arrested  the  accused;  the  statement  of  the

informant is, therefore, silent on specific details about the

same.  PW’s  second  supplementary  statement,

Ex.PW-80/D3, was recorded around noon on 17.12.2012 in

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which the informant, for the first time since the time of the

incident, revealed details about the bus in which the crime

allegedly occurred (that there was the word “Yadav” written

on the side, that the front wheel cover was missing), and

also revealed the  names of  the accused (Ram Singh,  one

Thakur, one Mukesh/Ramesh, Vinay and Pawan).   

67. The learned amicus curiae, Mr.  Hegde, submitted that

at every stage, PW-1 made improvement in his statements.

It was submitted that when PW-1 was confronted with the

omissions Ex.PW-1/A, Ex.PW-8/D1 and Ex. PW-80/D3, he

stated that he was unable to talk at the time of recording of

his statement due to injury to the tongue.  It was submitted

that as per Ex.PW-51/A, he sustained only simple injury

and  it  does  not  state  that  PW-1  suffered  injury  to  his

tongue.   It  was  further  contended  that  the  process  of

improving and embellishing the informant’s statement did

not  end  with  recording  his  statement  under  Section  161

CrPC.  On  19.12.2012,  the  informant  made  a  statement

under Section 164 CrPC before the Metropolitan Magistrate,

Saket Courts.  This statement is the most comprehensive

and  contains  details  which  had  been  discovered  by  the

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prosecution by then such as the names of all the accused

(including the name of the JCL for the first time) and details

from inside the bus (colour of the seats and curtains).  It

was contended that the improved version of PW-1 renders

his evidence unreliable and merely because he is an injured

witness, his evidence cannot be accepted.

68. It is urged by Mr. Hegde, learned amicus curiae, that

inconsistencies and omissions amounting to contradiction

in the testimony of PW-1 make him an untrustworthy and

unreliable witness.  The inconsistencies pointed out by the

learned amicus curiae pertain to the number of assailants,

the description of the bus and the identity of the accused.

As regards the omission, it  is contended by him that the

said witness had not mentioned about the alleged use of rod

in the FIR.  He has further submitted that though he has

stated that he had been assaulted by the iron rods as per

his subsequent statement, yet the said statement is wholly

unacceptable since he had sustained only simple injuries.     

69. Mr. Hegde, in his further criticism of the evidence of

PW-1, has put forth that the effort of the prosecution had

been to highlight the consistencies instead of explaining the

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inconsistencies.  That apart, submits Mr. Hegde, that the

witness has revealed the story step by step including the

gradual recognition of the identity of the accused in tandem

with  the process of investigation and in such a situation,

his testimony has to be looked with suspicion.

70. Mr.  Sharma,  learned  counsel  for  the  appellants  -

Mukesh and Pawan Kumar Gupta, and Mr. Singh, learned

counsel  for  the  appellants  –  Vinay  Sharma  and  Akshay

Kumar Singh, submit that the omissions in the statement of

PW-1 amount to contradictions in material particulars and

such contradictions go to the root of the case and, in fact,

materially affect the trial or the very case of the prosecution.

Therefore, they submit that the testimony of PW-1, who is

treated  as  a  star  witness,  is  liable  to  be  discredited.

Reliance  has  been  placed  on  the  authorities  in  State

Represented  by  Inspector  of  Police  v.  Saravanan  &

another11, Arumugam v. State Represented by Inspector

of  Police,  Tamil  Nadu 12,   Mahendra Pratap Singh v.

State  of  Uttar  Pradesh13 and  Sunil  Kumar

11 (2008) 17 SCC 587 : AIR 2009 SC 152 12 (2008) 15 SCC 590 :AIR 2009 SC 331 13 (2009) 11 SCC 334

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Sambhudayal  Gupta  (Dr.)  and  others  v.  State  of

Maharashtra14.  

71. The  authorities  that  have  been  commended  by

Mr.  Sharma  need  to  be  appositely  understood.   In

Arumugam (supra), the Court was dealing with the issue of

acceptance of  the version of  interested witnesses.   It  has

referred  to  Dalip  Singh v.  State  of  Punjab15,  State  of

Punjab v. Jagir Singh, Baljit Singh and Karam Singh16,

Lehna v.  State of  Haryana17,  Gangadhar Behera and

others v. State of  Orissa18 and State of  Rajasthan v.

Kalki  and  another19 and  opined  that  while  normal

discrepancies do not corrode the credibility of a party’s case,

material discrepancies do so.  

72. In  Saravanan (supra),  reiterating  the  principle,  the

Court held:

“18. …. it has been said time and again by this Court  that  while  appreciating the evidence of  a witness,  minor  discrepancies  on  trivial  matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence  given  by  the  witness,  the  trial  court

14 (2010) 13 SCC 657 : JT 2010 (12) SC 287 15 AIR 1953 SC 364 16 (1974) 3 SCC 277 17 (2002) 3 SCC 76 18 (2002) 8 SCC 381 19 (1981) 2 SCC 752

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upon appreciation of evidence forms an opinion about  the  credibility  thereof,  in  the  normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies.”

73. In  Mahendra  Pratap  Singh  (supra),  the  Court

referred to the authority in  Inder Singh and another v.

State (Delhi Administration)20 wherein it  has been held

thus:

“2.  Credibility  of  testimony,  oral  and circumstantial,  depends  considerably  on  a judicial  evaluation  of  the  totality,  not  isolated scrutiny. While it is necessary that proof beyond reasonable  doubt  should  be  adduced  in  all criminal cases, it is not necessary that it should be perfect.”

In the circumstance of the case, the Court, analyzing

the evidence, opined:

“62. From the above discussion of the evidence of the  eyewitnesses  including  injured  witnesses, their evidence does not at all inspire confidence and  their  evidence  is  running  in  conflict  and contradiction  with  the  medical  evidence  and ballistic expert’s report in regard to the weapon of offence, which was different from the one sealed in the police station. The High Court has, in our

20 (1978) 4 SCC 161

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opinion, disregarded the rule of judicial prudence in converting the order of acquittal to conviction.”

74. In Sunil Kumar Sambhudayal Gupta (supra), while

dealing with the issue of material contradictions, the Court

held:

“30.  While  appreciating  the  evidence,  the  court has  to  take  into  consideration  whether  the contradictions/  omissions  had  been  of  such magnitude  that  they  may  materially  affer  the trial.  Minor  contradictions,  inconsistencies, embellishments  or  improvements  on  trivial matters  without  effecting  the  core  of  the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after  going  through  the  entire  evidence,  must form  an  opinion  about  the  credibility  of  the witnesses  and  the  appellate  court  in  normal course  would  not  be  justified  in  reviewing  the same  again  without  justifiable  reasons.  (Vide State v. Saravanan)

31.  Where  the  omission(s)  amount  to  a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also  makes  material  improvements  before  the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh21.)

32.  The  discrepancies  in  the  evidence  of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other  evidence  or  with  the  statement  already

21 (2009) 11 SCC 106

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recorded, in such a case it cannot be held that the  prosecution  proved  its  case  beyond reasonable doubt.” (Vide  Mahendra Pratap Singh v. State of U.P. )”

And again:

“35.  The  courts  have  to  label  the  category  to which  a  discrepancy  belongs.  While  normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so.” (See Syed Ibrahim v.  State of A.P.22 and  Arumugam v. State)   

75. Mr. Luthra, learned senior counsel appearing for the

respondent-State,  on  the  other  hand,  has  disputed  the

stand of the appellants as regards the discrepancies in the

statement of PW-1. According to him, the evidence of PW-1

cannot be discarded on grounds which are quite specious.

The circumstances in entirety are to be appreciated. He has

placed reliance on the appreciation of the trial  court and

contended that the appreciation and analysis are absolutely

impeccable. The relied upon paragraph is as follows:

“The  complainant  PW1  in  his  deposition  had corroborated  his  complaint  Ex.PW1/A;  his statement Ex.PW80/D-1 recorded under section 161  Cr.P.C;  his  supplementary  statement Ex.PW80/D-3  and  his  statement  Ex.PW1/B recorded under section 164 CrPC; qua his visit to Select City Mall, Saket; then moving to Munirka in an auto; boarding the bus Ex.P1; the incident;

22 (2006) 10 SCC 601

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throwing them out of the moving bus and attempt of accused to overrun the victims by their bus.

It  was  argued by  the  Ld.  Defence  counsel that  during  his  cross  examination  PW1  was confronted with his statement Ex. PW1/A qua the factum of  not  disclosing  in  it  the  user  of  iron rods;  the  description  of  bus,  the  name  of  the assailants either in MLC Ex.  PW51/A or in his complaint Ex.PW1/A. However, I do not consider such omissions as fatal as it is a settled law that FIR is not an encyclopedia of facts. The victim is not  precluded  from  explaining  the  facts  in  his subsequent  statements.  It  is  not  expected  of  a victim  to  disclose  all  the  finer  aspects  of  the incident in the FIR or in the brief history given to the doctor; as doctor(s) are more concerned with treatment of the victims. More so the victim who suffers from an incident, obviously, is in a state of shock  and  it  is  only  when  we  moves  in  his comfort zone, he starts recollecting the events one by  one  and  thus  to  stop  the  victim  from elaborating the facts to describe the finer details, if left out earlier, would be too much.  

Thus  if  PW1  had  failed  to  give  the description of the bus or of iron rods to the doctor in his MLC Ex. PW51/A or in his complaint Ex. PW1/A it  shall  not have any fatal  effect on the prosecution  case.  What  is  fatal  is  the  material omissions, if any.”   

76. The evidence of PW-1 is assailed contending that he is

not  a  reliable  witness.  During  the  cross-examination,  his

evidence was assailed contending that Ex.PW-1/A is replete

with contradictions and inconsistencies.  Taking us through

the  evidence,  Mr.  Singh  has  submitted  that  in  his  first

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statement,  Ex.PW-1/A,  there  were  lot  of  omissions  and

contradictions  and  the  improvements  in  his  subsequent

statements render the evidence wholly untrustworthy. The

appellants,  in  an  attempt  to  assail  the  credibility  of  the

testimony  of  PW-1,  inter  alia,  raised  the  contentions:  (i)

Non-disclosure of the use of iron rod and (ii) the names of

the assailants in the MLC in Ex. PW-51/A or in Ex.PW-1/A.

However, the trial court held these assertions as non-fatal to

PW-1’s testimony:

“... It is not expected of a victim to disclose all the finer aspects of the incident in the FIR or in the brief history given to the doctor; as doctor(s) are more  concerned  with  treatment  of  the  victims. More so the victim who suffers from an incident, obviously,  is  in a state  of  shock and it  is  only when  we  move  in  his  comfort  zone,  he  starts recollecting the  events  one by  one and thus to stop  the  victim  from  elaborating  the  facts  to describe the finer details, if left out earlier, would be too much.”   

77. The contentions assailing the evidence of  PW-1 does

not  merit  acceptance,  for  at  the  time  when  he  was  first

examined his friend (the prosecutrix) was critically injured

and he was in a shocked mental condition.  The evidence of

a witness is not to be disbelieved simply because he is a

partisan witness or related to the prosecution.  It is to be

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weighed whether he was present or not and whether he is

telling the truth or not.    

78. The  informant,  PW-1,  in  his  deposition,  has  clearly

spoken  about  the  occurrence  and  also  corroborated  his

complaint,  Ex.PW-1/A.  The  evidence  of  PW-1  is

unimpeachable  in  character  and  the  roving

cross-examination  has  not  eroded  his  credibility.  It  is

necessary to mention here that PW-1 was admitted in the

casualty ward of Safdarjung Hospital. As he was injured, he

was medically examined by Dr. Sachin Bajaj, PW-51, and as

per the evidence, Ext.PW-51/A, the following injuries were

found on his body:

(a) 1cm X1 cm size clean lacertated wound over the vertex of scalp (head injury);

(b) 0.5 X 1 cm size clean lacerated wound over left upper leg;

(c) 1X 0.2 cm size abrasion over right knee.

79. The injuries found on the person of PW-1 and the fact

that  PW-1  was  injured  in  the  same  occurrence  lends

assurance to his testimony that he was present at the time

of the occurrence along with the prosecutrix.  The evidence

of an injured witness is entitled to a greater weight and the

testimony  of  such  a  witness  is  considered  to  be  beyond

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reproach and reliable. Firm, cogent and convincing ground

is required to discard the evidence of an injured witness.  It

is to be kept in mind that the evidentiary value of an injured

witness carries great weight. In Mano Dutt and another v.

State of Uttar Pradesh23, it was held as under:

“31.  We  may  merely  refer  to  Abdul  Sayeed v. State of M.P.24 where this Court held as under:

“28. The question of the weight to be attached to the evidence of  a witness that was himself injured in the course of the occurrence has been extensively discussed  by  this  Court.  Where  a witness to the occurrence has himself been  injured  in  the  incident,  the testimony  of  such  a  witness  is generally considered to be very reliable, as he is a witness that comes with a built-in  guarantee  of  his  presence  at the scene of the crime and is unlikely to spare his actual assailant(s) in order to  falsely  implicate  someone. ‘Convincing  evidence  is  required  to discredit  an  injured  witness.’  [Vide Ramlagan  Singh v.  State  of  Bihar25, Malkhan  Singh v.  State  of  U.P.26, Machhi  Singh v.  State  of  Punjab27, Appabhai v. State of Gujarat 28, Bonkya v.  State of Maharashtra29,  Bhag Singh v. State of Punjab30,  Mohar v.  State of

23  (2012) 4 SCC 79 24  (2010) 10 SCC 259 25  (1973) 3 SCC 881 26  (1975) 3 SCC 311 27  (1983) 3 SCC 470 28  1988 Supp SCC 241 29  (1995) 6 SCC 447 30  (1997) 7 SCC 712

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U.P.31,  Dinesh  Kumar v.  State  of Rajasthan32,  Vishnu v.  State  of Rajasthan33,  Annareddy  Sambasiva Reddy v.  State of A.P.34 and  Balraje v. State of Maharashtra35.]

29. While deciding this issue, a similar view  was  taken  in  Jarnail  Singh v. State  of  Punjab36 where  this  Court reiterated the special evidentiary status accorded to the testimony of an injured accused  and  relying  on  its  earlier judgments held as under:  

‘28.  Darshan Singh (PW 4)  was an injured  witness.  He  had  been examined  by  the  doctor.  His testimony  could  not  be  brushed aside  lightly.  He  had  given  full details  of  the  incident  as  he  was present  at  the  time  when  the assailants  reached the  tubewell.  In Shivalingappa Kallayanappa v. State of  Karnataka37 this  Court  has  held that  the  deposition  of  the  injured witness  should  be  relied  upon unless there are strong grounds for rejection of his evidence on the basis of  major  contradictions  and discrepancies,  for  the  reason  that his  presence  on  the  scene  stands established in case it is proved that he  suffered  the  injury  during  the said incident.

31  (2002) 7 SCC 606 32  (2008) 8 SCC 270 33 (2009) 10 SCC 477 34  (2009) 12 SCC 546 35  (2010) 6 SCC 673  36  (2009) 9 SCC 719 37  1994 Supp (3) SCC 235

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29.  In  State  of  U.P. v.  Kishan Chand38 a  similar  view  has  been reiterated  observing  that  the testimony of a stamped witness has its own relevance and efficacy. The fact  that  the  witness  sustained injuries  at  the  time  and  place  of occurrence,  lends  support  to  his testimony  that  he  was  present during  the  occurrence.  In  case  the injured  witness  is  subjected  to lengthy  cross-examination  and nothing can be elicited to discard his testimony, it should be relied upon (vide  Krishan v.  State of Haryana39. Thus,  we  are  of  the  considered opinion  that  evidence  of  Darshan Singh (PW 4) has rightly been relied upon by the courts below.’

30.  The  law  on  the  point  can  be summarised  to  the  effect  that  the testimony of  the injured witness is accorded  a  special  status  in  law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will  not want to let his actual  assailant  go  unpunished merely  to  falsely  implicate  a  third party  for  the  commission  of  the offence. Thus, the deposition of the injured  witness  should  be  relied upon  unless  there  are  strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.”

38  (2004) 7 SCC 629 39  (2006) 12 SCC 459

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To the similar effect is the judgment of this Court in Balraje (supra).”  

80. As  is  manifest  from  the  evidence,  S.I.   Pratibha

Sharma,  PW-80,  recorded  the  First  Supplementary

Statement under Section 161 CrPC of the informant, PW-1,

Awninder  Pratap  Singh  about  7:30  a.m.  on  17.12.2012.

Thereafter, PW-1, the informant, took PW-80, S.I. Pratibha

Sharma, to the spot from where he and the prosecutrix had

boarded the bus.  

81. Apart  from  the  injuries  sustained,  the  presence  of

PW-1 is further confirmed by the DNA analysis of:

1. the bloodstained mulberry leaves and grass that were collected from the spot in Mahipalpur where they were thrown off the bus; (Ex.74/C )

2. the  blood stains on Vinay’s  jacket  (Ex.68/2)  (as per Seizure Memo Ex. 68/3), Pawan’s sweater (Ex. P.68/6) (as per Ex. PW68/F )  and Akshay’s jeans (Ex P.68/6) tying them to the incident; (from the trial court judgment); and  

3. the unburnt cloth pieces belonging to PW-1 that were  recovered  alongwith  the  ashes  of  the prosecutrix’s clothing (Ex. PW74/M).

82. The trial court judgment was fortified by the decisions

of  this  Court  in  Pudhu  Raja  and  another  v.  State

Represented by Inspector of Police40,  Jaswant Singh v.

40  (2012) 11 SCC 196

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State of Haryana41 and Akhtar and others v. State of

Uttaranchal42 on  the  law  of  material  omissions  and

contradictions.  Concurringly, the High Court too observed

that  the  defence  had  failed  to  demonstrate  from  the

informant’s  testimony  such  discrepancies,  omissions  and

improvements that  would have caused the High Court  to

reject such testimony after testing it on the anvil of the law

laid down by this Court:

“325. ...Their throbbing injuries and the rigors of the weather coupled with the state of their minds must  have  at  that  point  of  time  brought  forth their  instinct  of  survival  and  self  preservation. The desire to have apprehended their assailants and to mete out just desserts to them could not have been their priority. ...”

83. In this context, we may fruitfully reproduce a passage

from State of U.P. v. M.K. Anthony43:

“10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth.  Once  that  impression  is  formed,  it  is undoubtedly necessary for the court to scrutinise the  evidence  more  particularly  keeping  in  view the  deficiencies,  drawbacks  and  infirmities pointed  out  in  the  evidence  as  a  whole  and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence

41  (2000) 4 SCC 484 42  (2009) 13 SCC 722 43  (1985) 1 SCC 505

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is  shaken  as  to  render  it  unworthy  of  belief. Minor  discrepancies  on  trivial  matters  not touching  the  core  of  the  case,  hyper-technical approach by taking sentences torn out of context here  or  there  from  the  evidence,  attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. …”

84. In  Harijana Thirupala v. Public Prosecutor, High

Court of A.P.44,  it has been ruled that:

“11. ….  In  appreciating  the  evidence  the approach  of  the  court  must  be  integrated  not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or  innocence  of  the  accused has  to  be  kept  in mind in coming to the conclusion as to the guilt or  otherwise  of  the  accused.  In  reaching  a conclusion  about  the  guilt  of  the  accused,  the court has to appreciate, analyse and assess the evidence  placed  before  it  by  the  yardstick  of probabilities, its intrinsic value and the animus of witnesses.”

85. In Ugar  Ahir  v.   State  of  Bihar45,  a  three-Judge

Bench held:

“7.  The  maxim  falsus  in  uno,  falsu  in  omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not  contain  a  grain  of  untruth  or  at  any  rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the  evidence  carefully  and,  in  terms  of  the felicitous metaphor, separate the grain from the

44  (2002) 6 SCC 470 45  AIR 1965 SC 277

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chaff.  But,  it  cannot  obviously  disbelieve  the substratum  of  the  prosecution  case  or  the material parts of the evidence and reconstruct a story of its own out of the rest.”

86. In Krishna Mochi v. State of Bihar46, the Court ruled

that:

“32. …. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting  in  an  ivory  tower.  I  find  that  in  recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not  weigh  with  the  court  so  long  it  does  not materially  affect  the  prosecution  case.  In  case discrepancies  pointed  out  are  in  the  realm  of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and  the  society  is  so  much  affected  thereby, duties  and  responsibilities  of  the  courts  have become much more. Now the maxim “let hundred guilty  persons  be  acquitted,  but  not  a  single innocent be convicted”  is,  in practice,  changing the world over and courts have been compelled to accept that “society suffers by wrong convictions and it equally suffers by wrong acquittals”. I find that  this  Court  in  recent  times  has conscientiously taken notice of  these facts from time to time”.  

46  (2002) 6 SCC 81

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87. In  Inder  Singh (supra),  Krishna  Iyer,  J.  laid  down

that:

“Proof  beyond  reasonable  doubt  is  a  guideline, not a fetish and guilty man cannot get away with it  because  truth  suffers  some  infirmity  when projected through human processes.”  

88. In the case of  State of U.P. v. Anil Singh47, it  was

held  that  a  Judge  does  not  preside  over  a  criminal  trial

merely to see that no innocent man is punished. A Judge

also presides to see that a guilty man does not escape. One

is as important as the other. Both are public duties which

the Judge has to perform.  

89. In Mohan Singh and another v. State of M.P.48, this

Court has held:

“11. The question is how to test the veracity of the prosecution story especially when it is with some variance  with  the  medical  evidence.  Mere variance of the prosecution story with the medical evidence,  in  all  cases,  should  not  lead  to  the conclusion,  inevitably  to  reject  the  prosecution story. Efforts should be made to find the truth, this  is  the  very  object  for  which  courts  are created. To search it  out,  the courts have been removing  the  chaff  from  the  grain.  It  has  to disperse the suspicious cloud and dust out the smear of  dust  as all  these things clog the very truth. So long as chaff, cloud and dust remain, the  criminals  are  clothed  with  this  protective layer to receive  the benefit  of  doubt.  So it  is  a

47  1988 (Supp.) SCC 686 48 (1999) 2 SCC 428

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solemn duty of the courts, not to merely conclude and  leave  the  case  the  moment  suspicions  are created. It is the onerous duty of the court, within permissible limit, to find out the truth. It means on  one  hand,  no  innocent  man  should  be punished but on the other hand, to see no person committing an offence should get scot-free. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited  to  the  accused.  For  this,  one  has  to comprehend  the  totality  of  the  facts  and  the circumstances  as  spelled  out  through  the evidence, depending on the facts of each case by testing  the  credibility  of  eyewitnesses  including the medical  evidence,  of  course,  after  excluding those parts of the evidence which are vague and uncertain.  There  is  no  mathematical  formula through which the truthfulness of a prosecution or a defence case could be concretised. It would depend on the  evidence  of  each case  including the manner of deposition and his demeans (sic), clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record.  So  courts  have  to  proceed  further  and make genuine efforts within the judicial sphere to search  out  the  truth  and  not  stop  at  the threshold of creation of doubt to confer benefit of doubt.”

90. Keeping the aforesaid aspects  in view, we shall  now

proceed to test the submission of the learned counsel for the

appellants  and  the  learned  amicus  curiae  on  the  issue

whether the testimony of PW-1 deserves acceptance being

reliable  or  not.   It  is  no  doubt  true  that  in  the  earlier

statement  of  PW-1,  that  is,  Ex.PW-1/A,  there are  certain

omissions;  but the main thing to be seen is  whether  the

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omissions  go  to  the  root  of  the  matter  or  pertain  to

insignificant  aspects.  The  evidence  of  PW-1  is  not  to  be

disbelieved  simply  because  there  were  certain  omissions.

The trial Court as well as the High Court found his evidence

credible and trustworthy and we find no reason to take a

different view.

91. The  case  of  the  prosecution  is  attacked  contending

that  PW-1  is  a  planted  witness  and  that  he  keeps  on

improving  his  version.   It  is  submitted  that  PW-1 is  not

reliable as had he been present at the time of occurrence, he

would have endeavoured to save the victim and the nature

of injuries as mentioned in Ex. PW-51/A on the person of

PW-1 raises serious doubt about his presence at the time of

occurrence.   

92. The  prosecutrix  and  PW-1  were  surrounded  and

attacked by at  least  six  accused persons.  As narrated by

PW-1, he was pinned down by two of the assailants while

the others committed rape on the prosecutrix on the rear

side of the bus.  The accused persons were in a group and

were also armed with iron rods. PW-1 was held by them. It

would not have been possible for PW-1 to resist the number

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of accused persons and save the prosecutrix. The evidence

of PW-1 cannot be doubted on the ground that he had not

interfered with the occurrence. The improvements made in

the supplementary statement need not  necessarily  render

PW-1’s evidence untrustworthy more so when PW-1 has no

reason to falsely implicate the accused.

93. Learned counsel for the State has highlighted that the

version of PW-1 is absolutely consistent and the trial court

as  well  as  the  High  Court  has  correctly  relied  upon  his

testimony.  He  has  drawn our  attention  to  the  version  of

PW-1 in the FIR, the statement recorded under Section 164

CrPC and his testimony before the trial court. We have given

anxious consideration and perused the FIR, supplementary

statements  recorded  under  Section  164  CrPC  and

appreciated the evidence in court and we find that there is

no justification or warrant to treat the version of the witness

as  inconsistent.   The  consistency  is  writ  large  and  the

witness, as we perceive, is credible.  

94. Mr. Luthra, learned senior counsel, further contested

the  argument  advanced  on  behalf  of  the  appellants  as

regards the discrepancies so far as PW-1 is concerned. As

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regards the items stolen, it is recorded in the FIR that the

accused  persons  stole  the  informant’s  Samsung  Galaxy

Mobile  phone  bearing  7827917720  and  9540034561  and

his wallet containing Rs.1000, ICICI debit card, Citi Bank

Credit Card, ID Card, one silver ring, one gold ring and took

off all his clothes, i.e., khakhi coloured blazer, grey sweater,

black jeans, black Hush Puppies shoes and they also stole

the prosecutrix’s mobile phone with number 9818358144.

His statement recorded under Section 164 CrPC states that

the accused snatched the Samsung Galaxy S-Duos Mobile,

one more  mobile  phone  of  Samsung,  one purse  with  Rs.

1000, one Citibank credit card, ICICI Debit Card, Company

I-Card, Delhi Metro Card and also snatched black jeans, one

silver ring, one gold ring, Hush Puppies shoes. They also

snatched  the  prosecutrix’s  Nokia  mobile  phone  and  grey

colour purse and both the wrist watches.  Before the trial

court, he deposed that they snatched both the rings, shoes,

purse containing cards and cash, socks and belt; they took

off all his clothes and left him in an underwear; the accused

had also taken off all the prosecutrix’s clothes and snatched

all  her  belongings  including  grey  purse  containing  Axis

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bank card.  PW-1 also identified Hush Puppies shoes, Ex.

P-2, Sonata watch, Ex. P-3, metro card, Ex. P-5, Samsung

Galaxy  Duos,  Ex.  P-6,  and currency  notes,  Ex.  P-7.   As

regards the weapon of assault, in the FIR and in the Section

164 statement, “rod” was recorded as weapon of assault and

in his testimony before the trial court, PW-1 deposed that

the weapon of assault was “iron rods”.   So far as throwing

from the bus is concerned, it is recorded in the FIR that the

other accused persons told the driver to drive the bus at a

fast speed and then tried to throw the informant from the

back door of the bus, however, the back door of the bus did

not  open.  Then  they   threw both  the  informant  and  the

prosecutrix from the moving bus near NH 8 Mahipalpur on

the side of the road.  His statement recorded under Section

164 CrPC states that the bus driver was driving the bus at a

fast speed on being told by the other accused and he heard

them saying that the girl had died and to  throw her off the

bus. They then took the informant and the prosecutrix to

the rear door of the bus but could not open the door and,

therefore,  dragged them to the front door of  the bus and

threw them out. The bus driver turned the bus in such a

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manner after throwing them, that if the informant had not

pulled the prosecutrix, then the bus would have run over

her. PW-1 has deposed before the trial court that he heard

one  of  the  accused  saying  “mar  gayee,  mar  gayee”;  the

accused  were  exhorting  that  the  informant  and  the

prosecutrix  should  not  be  left  alive;  the  accused persons

pulled  the  informant  near  the  rear  door  and  put  the

prosecutrix  on  him.   The  rear  door  was  closed,  so  they

dragged both the informant and the prosecutrix to the front

door;  they were thrown off  opposite  Hotel  Delhi  37;  after

they were thrown, the accused persons turned the bus and

tried  to  crush  them  under  the  wheels.   As  regards  the

naming/description of the accused, the FIR recorded that

the accused were aged between 25-30 years; one of them

had a flat nose and was the youngest; one of them wore a

red banian and they were wearing pant and shirt; and the

accused were named as Ram Singh, Thakur, Mukesh, Vinay

and Pawan.  In the statement, it was recorded that he saw a

dark  coloured  man  who  was  being  called  “Mukesh,

Mukesh”;  he  over-heard  them calling  each other  as  Ram

Singh, Thakur; and the other three were addressing each

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other Pawan and Vinay and taking the name of JCL.  In his

testimony, it is recorded that he identified A-2, Mukesh, as

Driver, A-1, Ram Singh, and A-3, Akshay, as persons sitting

in  the  driver’s  cabin  and  identified  A-4,  Vinay,  and  A-5,

Pawan, as persons sitting in the bus.  

95. As  regards  the  minor  contradictions/omissions,  the

trial  court  has  placed reliance upon  Pudhu Raja  (supra)

and   Jaswant  Singh  (supra) and  treated  the  version  of

PW-1 as reliable. The testimony of PW-1 has been placed

reliance upon by both the Courts and on an anxious and

careful scrutiny of the same, we do not perceive any reason

to differ with the said view.  

96. As we find, the trial court has come to the conclusion

that  the  incident  has  been  aptly  described  by  PW-1,  the

injured.  The injuries on his person do show that he was

present in the bus at the time of the incident. His presence

is further confirmed by the DNA analysis. Suffice it to say

for  the  present,  the  contradictions  in  the  statement,

Ex.PW-1/A,  are  not  material  enough  to  destroy  the

substratum  of  the  prosecution  case.   From  the  studied

analysis of  the evidence of  PW-1, it  is the only inevitable

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conclusion  because  the  appreciation  is  founded  on

yardstick  of  consideration  of  totality  of  evidence  and  its

intrinsic value on proper assessment.  

Recovery of the bus and the CCTV footage

97. The endeavour of  the prosecution was to first check

the  route  and  get  a  clue  of  the  bus.   For  the  aforesaid

purpose,  the  CCTV  footage  becomes  quite  relevant.  The

story  starts  from  the  Select  City  Walk  Mall,  Saket  and

hence, we have to start from there.  As per the case of the

prosecution, the informant and the prosecutrix had gone to

Select City Walk Mall, Saket to see a film.  The CCTV footage

produced  by  PW-25,  Rajender  Singh  Bisht,  in  a  CD,

Ex.PW-25/C-1  and  PW-25/C-2,  and  the  photographs,

Ex.PW-25/B-1  to  Ex.PW-  25/B-7,  are  evident  of  the  fact

that  the  informant  and  the  prosecutrix  were  present  at

Saket till 8:57 p.m. The certificate under S  ection 65B of the

Evidence Act with respect to the said footage is proved by

PW-26,  Shri  Sandeep  Singh,  vide  Ex.PW-26/A.  The

informant as well as the prosecutrix gave brief description of

the entire incident in their MLCs which led the investigating

team to the Hotel near Delhi Airport where the prosecutrix

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and the informant were dumped after the incident. PW-67,

Pramod Kumar Jha, the owner of the Hotel at Delhi Airport,

was  examined  by  the  investigating  officers  regarding  the

present incident. He handed over the pen drive containing

the CCTV footage, Ex.P-67/1, and the CD, Ex.P-67/2 to the

I.O. which were seized vide seizure memo Ex.PW-67/A. The

CCTV  footage  and  the  photographs  were  identified  by

PW-67,  Pramod  Jha,  PW-74.  SI  Subhash  Chand,  and

Gautam Roy, PW-76, from CFSL during their examination in

Court. The CCTV footage twice showed a white coloured bus

having yellow and green stripes at 9:34 p.m. and again at

9:53 p.m. The bus exactly matched the description of the

offending  bus  given  by  the  informant.  It  had  the  word

“Yadav” written on one of its sides and its front tyre on the

left  side  did  not  have  a  wheel  cap.  PW-78,  the  S.H.O.,

Inspector Anil  Sharma, has further deposed that the said

CCTV footage  seized vide  seizure  memo Ex.PW-67/A was

sent to the CFSL through SI Sushil  Sawariya, PW-54, on

02.01.2013,  and  this  part  of  the  testimony  of  PW-78  is

corroborated by the testimony of PW-54, SI Sushil Sawaria,

and  PW-77,  the  MHC(M).  Thereafter,  on  03.01.2013,  the

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report of the CFSL was received. In fact, the trial court had

assured  itself  of  the  correct  identification  of  the  bus  by

playing  the  said  CCTV  footage  shown  in  the  pen  drive,

Ex.PW-67/1,  and  the  CD,  Ex.PW-67/2,  during  the

cross-examination of PW-67, Pramod Jha.

98. Learned counsel Mr. Singh has asserted that bus, Ex.

P-1, has been falsely implicated in the present case as is

evidenced  from  the  recovery  of  the  CCTV  footage.  In  an

attempt to discredit the CCTV footage, he pointed out that

only  the  CCTV  recording  alleged  to  be  of  this  bus  was

recorded and not of all other white buses that had ‘Yadav’

written  on  them.  The  learned  counsel  for  the  defence

subsequently maintained that the CCTV footage cannot be

relied upon as the  same has been tampered with by the

investigating officers.  

99. PW-76,  Gautam Roy,  HOD,  Computer  Cell,  Forensic

Division, has testified that on 02.01.2013, he had received

two sealed parcels sealed with the seal of PS and the seals

tallied  with  the  specimen seals  provided.  He  marked  the

blue coloured pen drive found in parcel No.1 as Ex.1 and

the Moser Baer CD found in the second parcel as Ex.2. He

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further testified that both the exhibits were played by him in

the computer and the bus was seen twice, at 9:34 p.m. and

9:54 p.m. He had photographed all these three by freezing

the  pen  drive  and  the  CD  and  these  photographs  were

compared  by  him  with  the  photographs  taken  by  the

photographer,  PW-79,  P.K.  Gottam,  which  he  had

summoned. The witness testified that he had prepared the

three  comparison  charts  in  this  regard  as  Ex.PW-76/B,

PW-76/C  and  PW-76/D,  and  his  detailed  report  as

Ex.PW-76/E.  The footage taken in a CD and pen drive was

sealed  in  PW-67’s  presence  and  as  the  recording  was

automatic  data  being  fed  on  regular  basis  into  the  hard

disk,  the  question of  tampering with the  same could  not

arise.  PW-79, P.K. Gottam, from CFSL, CBI, has stated in

his  examination  that  he  took  photographs  of  the  bus

bearing No.DL-1P-C-0149 parked at Thyagraj Stadium, INA,

New  Delhi  from  different  angles  on  17.12.2012  and

18.12.2012 and handed over the same to PW-76. The said

photographs were marked as B1 in Ex.PW-76/B; as C1 and

C2 in   Ex.PW-76/C; and as D1 in Ex.PW-76/D. He has

deposed  as  to  the  genuineness  of  the  photographs  by

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deposing  that  the  software  used  for  developing  the

photographs was tamper proof.

100. Once it  is  proved before  the  court  through the

testimony of the experts that the photographs and the CCTV

footage  are  not  tampered  with,  there  is  no  reason  or

justification to perceive the same with the lens of doubt. The

opinion of  the CFSL expert  contained in the CFSL report

marked  as  Ex.PW-76/E  authenticates  that  there  was

no tampering or editing in both the exhibits, Ex.P-67/1 and

Ex.P- 67/2, and that a bus having identical patterns as the

one  parked  at  Thyagraj  Stadium  is  seen  in  the  CCTV

footage,  which includes  the  word “Yadav”  written  on one

side, "back side dent (left)" and absence of wheel cover on

the  front  left  side.  The  contents  of  the  report  is  also

admitted  to  be  true  by  its  author,  PW-76,  Gautam Roy.

Quite apart from that, it is perceptible that the High Court,

in order to satisfy itself, had got the CCTV footage played

during the hearing and found the same to be creditworthy

and acceptable.    

101. As the narrative proceeds, the next step was to

find  out  the  bus.   The  identity  of  the  bus  in  the  CCTV

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footage was known and the said knowledge could propel the

prosecution to move for  recovery.  We may start  from the

beginning.   The  bus,  Ex.  P-1,  bearing  registration  No.

DL-1P-C-0149, is the vehicle alleged to have been involved

in the incident. PW-74, SI Subhash Chand, on 17.12.2012,

along with PW-1, the informant, and PW-80, WSI Pratibha

Singh, went to Munirka bus stand from where the victims

had  boarded  the  alleged  bus,  Ex.  P-1,  and  then  to

Mahipalpur to the spot where both the victims were thrown

off the bus on 16.12.2012.  After the collection of exhibits

from the spot, PW-74 and PW-80 went to the hotels opposite

the spot having CCTV cameras installed and amongst those

was Hotel Delhi 37. At the said hotel, the informant/PW-1

identified the bus they had boarded in the CCTV footage of

the road and the relevant footage of the recording was taken

in  a  pen  drive  and  CD  and  was  handed  over  to  the

Investigating  Officer  as  Ex.  PW-67/A.  Later  in  the  day,

secret information was received by PW-80 that the alleged

bus  was  parked  at  Sector  3,  R.K.  Puram.  PW-74

accompanied  PW-80  and  PW-65,  Ct  Kripal  Singh,  to

Ravidass Camp where a bus matching the description given

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by PW-1 was parked near the Gurudwara.  It was white in

colour  with  ‘Yadav’  written  on  the  side.  When the  police

approached the bus, A-1, Ram Singh, got down from it and

started  to  run;  he  was  later  apprehended in  a  chase  by

PW-74 and PW-65. From A-1,  the fitness certificate,  PUC

and  other  documents  regarding  the  registration  of  the

vehicle DL-1PC-0149 were seized as Ex. PW-74/I, PW-74/J

and PW-74/K.  The entry door of the bus was ahead of the

front wheel and the wheel cap was missing from the front

tyre. After recovery of the burnt clothes at the behest of A1,

he  was  sent  to  the  police  station  with  PW-65.  PW-42,

Ct. Suresh Kumar, was called to the spot and he drove the

bus to  Thyagraj  Stadium around 5:45 p.m.  on the  same

day.   An inspection of  the bus was conducted inside the

stadium and the CFSL team lifted Ex. PW-74/P.  Thereafter,

PW-32, SI Vishal Chaudhary, and PW-33, SI Vikas Rana,

were called from police station Kotla Mubarakpur to guard

the bus.

102. Mr.  Singh  has  raised  the  following  issues  with

respect to the identification and recovery of the alleged bus:

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1. CCTV footage was not properly examined to check all possible buses plying on the said route;  

2. The bus was taken to Thyagraj Stadium instead of the Police Station to avoid the media and to better facilitate the planting of evidence; and

3. PW-81, Dinesh Yadav, owner of the Bus was  in  judicial  custody  for  6  months before his examination in the Court and he  was  so  detained in  custody to  bring pressure upon him.

103. Mr. Singh has made bald allegation that the bus,

Ex P-1, was falsely implicated and that all the DNA evidence

recovered therefrom was actually planted. He contends that

the bus, Ex. P-1, was sent to Thyagraj Stadium instead of

the  concerned  Police  Station,  PS  Vasant  Vihar,  with  the

deliberate intention of avoiding the media attention so that

the evidence could be planted easily. This argument is in

furtherance of his false implication theory. He has, however,

provided no further specific assertions to cast a doubt in

our mind that the police has planted the evidence in the

bus.

104. Mr. Luthra, in his turn, relying on the decision of

the Delhi High Court in Manjit Singh v. State49, has placed

49  214 (2014) DLT 646

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statistics before us pointing to the paucity of physical space

in police stations across the city. In Manjit Singh (supra),

the High Court had ordered the Delhi Police to furnish data

regarding case properties with the Police. The High Court

noted  that  there  was  an  accumulation  of  “2,86,741 case

properties including 25,547 vehicles, out of which as many

as 2,479 properties are lying in public places outside the

police stations”. Given the state of affairs, the submission

put forth by Mr.  Luthra is  acceptable.  There is  dearth of

space  inside  the  police  stations  in  Delhi  and  the  use  of

Thyagraj Stadium as parking lot in the present case does

not necessarily mean that there was any mala fide intention

on the part of the investigating agency without any specific

assertion to advance the said bald allegation.

105. It may also be noted that on 17.12.2012, PW-42,

Ct. Suresh Kumar, drove the bus from Ravidass Camp to

Thyagraj Stadium around 5:45 p.m. along with PW-74 and

PW-80.   About  6:15  p.m.,  PW-32,  SI  Vishal  Chaudhary,

along with Ct.  Amit,  both of  PS Kotla  Mubarakpur,  were

sent  to  Thyagraj  Stadium  where  on  the  instructions  of

PW-80, SI Pratibha, PW-32, guarded the bus till 8:00 a.m.

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the next day. On 18.12.2012, he handed over the charge of

guarding  the  bus  to  PW-33,  SI  Vikas  Rana,  PS  Kotla

Mubarakpur, and he guarded the bus till 8:30 p.m., until

after the CFSL team left. Thus, the criticism as regards the

parking  of  the  bus  at  Thyagraj  Stadium  and  not  at  the

Police Station pales into insignificance.

Reliability of the testimony of PW-81 (the owner of the bus)

106. Having dealt  with the recovery of  the bus,  it  is

necessary  to  dwell  upon the  contention  put  forth  by  the

learned  counsel  for  the  appellants  which  pertains  to  the

acceptability  and  reliability  of  the  testimony  of  PW-81,

Dinesh Yadav.  The principal contention in this regard is

that PW-81, Dinesh Yadav, the owner of  the bus,  was in

judicial custody and, therefore, his version in the court is

under tremendous pressure as he was desirous of getting a

bail order to enjoy his liberty. Highlighting this aspect, it is

urged by Mr. Sharma and Mr. Singh, learned counsel for the

appellants, that the testimony of the said witness deserves

to be totally discarded.

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107. PW-81, Dinesh Yadav, is a transporter and owns

8 to 10 buses including Ex. P-1. He runs the buses under

the  name  ‘Yadav  Travels’.  He  was  examined  by  the

prosecution to prove that A-1, A-2 and A-3 are connected

with the bus, Ex. P-1. In his examination, PW-81 admitted

that the word ‘Yadav’ is written across Ex. P-1 and that it is

white in colour with yellow stripes. PW-81 stated that A-1,

Ram Singh (since deceased), was the driver of the said bus

in  December  2012,   A-3,  Akshay  Kumar  Singh,  was  his

helper and the bus was usually parked by A-1, Ram Singh,

in R.K. Puram, near his residence. The bus was attached to

Birla Vidya Niketan School, Pushp Vihar, New Delhi to ferry

students in the morning and also to a Company, M/s Net

Ambit, Sector 132, Noida, to take its employees from Delhi

to Noida. On 17.12.2012, the bus went from Delhi to Sector

132, Noida to take the staff of M/s Net Ambit to their office

and  PW-81  was  informed  by  A-1,  Ram  Singh,  or  A-2,

Mukesh, that the bus was checked at the DND toll plaza on

their route to Noida.

108. Learned  counsel  Mr.  Singh  has  asserted  that

PW-81 was kept in judicial custody to obtain a statement

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favourable to the prosecution in the present case. In this

aspect, it is noted that PW-81 also stated that he was kept

in judicial custody. The arrest was, however, not made in

the present case; it was in connection with another case in

relation  to  providing  incorrect  address  to  the  Transport

Authority. He was lodged in jail in case FIR No. 02/2013 of

PS Civil Lines under Sections 420, 468, 471 IPC.  PW-81

had provided his friend’s address as his own at the time of

registration and was arrested on a complaint made by the

Transport Authority.  He was named in the charge-sheet in

the present case and was cited as a witness at serial No. 36

but was dropped by the prosecution on 28.05.2013. Later

on, his examination was sought by way of an application

under Section 311 CrPC. The application was allowed by the

trial court order dated 03.07.2013 on the ground that he

was  the  owner  of  the  bus  and  his  examination  was

necessary  to  prove  as  to  whom he  had handed over  the

custody  of  the  bus  on  the  night  of  the  incident,  i.e.,

16.12.2012. It is limpid from the deposition of PW-81 that

he  was  in  judicial  custody  for  a  separate  offence  and,

therefore, it is difficult to accede to the argument advanced

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by Mr. Singh that he was under pressure to support the

version of the prosecution.  

109. Apart from the above, the prosecution, in order to

place A-1 as the driver of the bus, Ex. P-1, has examined

PW-16, Rajeev Jakhmola. PW-16, Manager (Admn) of Birla

Vidya Niketan School, Pushp Vihar, handled their transport.

In his examination,  he stated that PW-81, Dinesh Yadav,

had  provided  the  school  with  7  buses  on  contract  basis

including Ex. P-1 and that A-1, Ram Singh, was its driver.

He also submitted a copy of Ram Singh’s Driving Licence to

the Police along with the copy of the agreement of the school

with  the  owner  of  the  bus,  copy  of  the  RC,  copy  of  the

fitness  certificate,  certificate  of  third  party  technical

inspection,  pollution  certificate,  two  copies  of

certificate–cum-policy  schedule  (Insurance),  copy  of

certificate  of  training  undergone  by  accused  Ram  Singh,

copy of permit and list of  the transporters,  collectively as

Ex. PW-16/A.

110. Thus,  according  to  the  prosecution,  from  the

evidence of  PW-16, Rajeev Jakhmola,  and PW-81, Dinesh

Yadav,  it  stands  proved  that  the  bus  in  question  was

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routinely driven by Ram Singh.   When an argument was

raised before the High Court over the veracity of  PW-81’s

testimony, it recorded as under:  

“270. We are constrained to say that there is no substance in the aforesaid contention of Mr. Sharma  for  the  reason  that  PW-81  Dinesh Yadav,  the  owner  of  the  bus  bearing registration  No.DL1PC-0149,  in  which  the offence was committed, has categorically stated in his cross-examination that bus Ex.P-1 was being  used  for  ferrying  the  students  in  the morning and thereafter as a chartered bus for taking  the  officials  of  M/s.  Net  Ambit  from Delhi  to  Noida.  He  further  stated  in cross-examination that on 17.12.2012, the bus took the staff of M/s. Net Ambit from Delhi to Sector  132,  Noida,  UP.  Quite  apparently, therefore, accused Ram Singh as disclosed by him had thrown the SIM card nearabout the bus  stand  of  Sector  37,  where  according  to PW-44  Mohd.  Zeeshan,  it  was  found  at  the noon  hour.  Since  it  is  not  in  dispute  that accused Ram Singh was the driver of the bus and this  fact  stands fully  established by the evidence on record, Noida was possibly found by him to be the safest destination to dispose of the SIM card.”

111. The  aforesaid  analysis  commends  our  approval

because we, having analysed the said aspect on our own,

have arrived at the same conclusion.  There is no trace of

doubt  that  the  testimony  of  the  said  witness  withstands

close scrutiny and there is no reason to treat it with any

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kind  of  disapproval.   That  apart,  the  evidence  of  PW-16

corroborates the testimony of the owner of the bus.

Personal search and statements of disclosure leading to recovery   

112. Learned counsel for the appellants have seriously

questioned  the  arrest  of  the  accused  persons  and  the

recoveries made pursuant to the said arrest.  It is the stand

of  the  prosecution that  pursuant  to  the  arrest  of  all  the

accused  A-1  to  A-5,  there  were  disclosure  statements

recorded under Section 27 of the Evidence Act which led to

recoveries  of  incriminating  articles  such  as  objects

belonging to the victims as also objects which have been

linked orally or scientifically (such as through DNA profiling)

to  the  prosecutrix  and  PW-1.  These  material  objects

recovered are used to link the convicts with the crime and

corroborate  the  version of  the  eye  witness  PW-1 and the

dying declaration of the deceased victim.  

113. First, we shall refer to the arrest of Ram Singh

and the recoveries made at his instance.  As already stated,

on 17.12.2012,  PW-80,  SI  Pratibha Sharma,  had  spotted

accused Ram Singh sitting  in  the  offending  bus,  Ex.  P1,

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which  was  parked  at  Ravidass  Camp,  R.K.  Puram,  New

Delhi. On seeing the police, Ram Singh got down from the

bus  and  started  running.   He  was  chased  and  instantly

arrested  at  4:15  p.m.  vide memo  Ex.PW-74/D  and

subsequently,  his  personal  search  was  conducted  vide

memo  Ex.PW-74/E  and  his  disclosure  Ex.PW-74/F  was

recorded.  Notably, Ram Singh has led to several important

discoveries and seizures from inside the bus.    

114. Accused  Mukesh  was  apprehended  on

18.12.2012  from  village  Karoli,  Rajasthan,  by  a  team

headed by PW-58, SI Arvind.  He produced accused Mukesh

before PW-80, SI Pratibha Sharma, the Investigating Officer,

at Safdarjung Hospital in muffled face alongwith a mobile,

Samsung Galaxy  Duos,  Ex.P-6,  seized by her  vide  memo

Ex.PW-58/A.   The accused was arrested at  6:30 p.m. on

18-12-2012  by  her  vide memo  Ex.PW-58/B  and  his

personal  search  was  conducted  vide memo  Ex.PW-58/C.

The  accused  pointed  the  Munirka  bus  stand  vide memo

Ex.PW-68/K and the dumping spot vide memo Ex.PW-68/L.

This  Samsung Galaxy  phone was identified  to  be  that  of

PW-1, the informant.

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115. On 23.12.2012, accused Mukesh led the police to

Anupam Apartment, garage No. 2, Saidulajab, Saket, New

Delhi, and got recovered a green colour T-shirt,  Ex.P-48/1,

on which the word “play boy” was printed;  a grey colour

pant,  Ex.P-48/2,  and a  jacket,  Ex.P-48/3,  of  bluish grey

colour, all seized vide memo Ex.PW-48/B. The Investigating

Officer also prepared the site plan, Ex.PW-80/I, of the place

of  recovery.   On  24.12.2012,  accused  Mukesh  also  got

prepared a route chart Ex.PW-80/H.

116. On  18.12.2012,  accused  Ram  Singh  led  the

Investigating Officer to Ravidass Camp and pointed towards

his associates, namely, accused Vinay and accused Pawan.

Accused Pawan was apprehended and arrested about 1:15

p.m.  vide memo Ex.PW-60/A; his disclosure, Ex.PW-60/G,

was recorded and his personal search was conducted  vide

memo Ex.PW-60/C.  Accused Pawan Gupta pointed out the

Munirka bus stand and a pointing out memo Ex.PW-68/I

was prepared.  He also pointed the dumping spot and memo

Ex.PW-68/J was prepared in this regard.

117. On  19.12.2012,  from  accused  Pawan  Gupta,

PW-80, got effected the following recoveries:

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(a) Wrist watch Ex.P3 seized vide memo Ex.PW-68/G;

(b) Two currency notes of denomination of Rs.500/- Ex.P-7 colly were seized vide memo Ex.PW-68/G;

(c) Clothes worn by the accused at the time of  the incident seized vide memo Ex.PW-68/F; and

(d)Black coloured sweater  having grey stripes with label Abercrombie and Fitch Ex.P-68/6 and a pair of  coca-cola  colour  pants  Ex.P-68/7  colly; underwear  having  elastic  labeled  Redzone Ex.P-68/8  and  a  pair  of  sports  shoes  with Columbus inscribed on them as Ex.P-68/9.

     It may be stated here that Sonata wrist watch, Ex. P3,

was identified as that of PW-1.

118. On 18.12.2012, about 1:30 p.m., accused Vinay

Sharma  was  arrested  in  front  of  Ravidass  Mandir,  Main

Road, Sector-3,  R.K. Puram, New Delhi  vide arrest memo

Ex.PW-60/B;  and  his  disclosure   Ex.PW-60/H  was  also

recorded.   He  pointed  out  the  Munirka  bus  stand  from

where the victims were picked up  vide memo Ex.PW-68/I

and  he  also  pointed  out  Mahipalpur  Flyover,  the  place

where the victims were thrown out of the moving bus  vide

pointing out memo Ex.PW-68/J.  On 19.12.2012, he led to

the following recoveries:

(a) Hush  Puppies  shoes  Ex.P-2  seized  vide memo Ex.PW-68/C; and

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(b) Nokia  mobile  phone  Ex.P-68/5  of  the  prosecutrix seized vide memo Ex.PW-68/D.

Hush Puppies shoes, Ex. P2, were identified to be that

of PW-1, the informant.  Nokia Mobile Phone, Ex. P-68/5,

was identified to be that of the prosecutrix.

119. On 19.12.2012,  pursuant  to  his  supplementary

disclosure statement Ex.PW-68/A, the following recoveries

were made by the accused vide seizure memo Ex.PW-68/B: (a)One  blue  coloured  jeans  having  monogram  of

Expert Ex.P-68/1;

(b)A black coloured sports jacket with white stripes and a monogram of moments as Ex.P-68/3 and a pair of rubber slippers as Ex.P-68/4.

120. During the personal search of Vinay Sharma, the

following article was recovered:

(a) Nokia  mobile  phone  with  IMEI  No. 35413805830821418 belonging to the accused, which was returned to him on superdari  vide order dated 4-4-2013

121. On 21.12.2012, about 9:15 p.m., accused Akshay

Kumar  Singh  @  Thakur  was  arrested  from  village

Karmalahang, P.S. Tandwa, District Aurangabad, Bihar vide

memo Ex.PW-53/A and on 21.12.2012 and 22.12.2012, his

disclosures, Ex.PW-53/I and Ex.PW-53/D, respectively were

recorded.  On  22.12.2012,  he  got  effected  the  following

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recoveries from the residence of  his brother,  Abhay,  from

the  rented  house  of  one  Tara  Chand,  village  Naharpur,

Gurgaon, viz;

i. Blood  stained  jeans  (Ex.P-53/3)  worn  by  the accused  at  the  time  of  the  incident,  recovered from a black bag (Ex.P-53/2)

ii. A  blue  black  coloured  Nokia  mobile  phone (Ex.P-53/1)

iii.  Blood-stained red coloured banian (vest).

122. On 27.12.2012, he got recovered the informant’s

Metro card Ex.P-5 and the informant’s silver ring, Ex.P-4,

from House  No.  1943,  3rd Floor,  Gali  No.3,  Rajiv  Nagar,

Sector-14, Gurgaon, Haryana.

123. Learned counsel  for  the appellants and learned

amicus,  Mr.  Hegde,  have  vehemently  criticized  the  arrest

and recoveries that have been made or effected.  It is urged

by  Mr.  Sharma  that  the  appellant  Mukesh  was  not  in

custody when the recovery took place and additionally, he

was  not  produced  before  the  nearest  Magistrate  within

twenty-four hours from the time of detention.  Mr. Luthra,

in  his  turn,  would  submit  that  the  said  accused  was

formally arrested at Delhi and, thereafter, the recovery on

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the basis of  his disclosure took place. Mr. Singh, learned

counsel,  contended  that  the  disclosure  statements  which

have  been  recorded  by  the  police  do  tantamount  to

confessional  statements  relating  to  the  involvement  and

commission  of  the  crime.  This  argument  requires  to  be

squarely dealt with. For appreciating the said submission, it

is necessary to appreciate the inter-se relationship between

the accused persons and thereafter dwell upon the process

of the arrest and judge the acceptability on the anvil of the

precedents in the field.  

124. As the evidence brought on record would show,

the accused persons were known to each other.  Mukesh,

A-2,  and  deceased  Ram  Singh,  A-1,  were  brothers.

According to the testimony of Dinesh Yadav, PW-81, Ram

Singh  was  the  driver  of  the  bus  and  A-3,  Akshay,  was

working as a helper in the bus.  The same is manifest from

the  Attendance  Register,  Ex.  P-81/2,  seized  vide  Ex.

PW-80/K and the Driving License of A-1, Ram Singh, Ex.

P-74/4, seized vide Ex. PW-74/1.  From the testimony of

PW-13,  Brijesh  Gupta,  and  PW-14,  Jiwant  Shah,  it  is

evident that Ram Singh and Mukesh were brothers.  From

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the evidence of Champa Devi, DW-5, mother of Vinay, A-4,

it  is  quite clear that Vinay,  Pawan, A-5,  and Ram Singh,

A-1, were known to each other.  Mukesh, in his statement

under  Section 313 CrPC, has admitted that  he and Ram

Singh are  brothers.  A-3,  Akshay,  in  his  statement  under

Section 313 CrPC, has admitted that he was working with

Ram Singh in the bus, Ex. P-1, as a helper.   He has also

admitted  that  he  knew  Ram  Singh  and  there  had  been

altercation  on  16.12.2012  with  A-1,  Ram  Singh.  A-5,

Pawan, in his statement under Section 313 CrPC, admitted

that he was a witness to the quarrel between A-4, Vinay,

and  A-1,  Ram  Singh.  From  the  aforesaid  evidence,  it  is

luminous  that  all  the  accused  persons  were  closely

associated with each other.

125. Having dealt with this facet, we shall now proceed

to meet the criticism advanced by the learned counsel for

the  appellants  with  regard  to  the  recoveries  and  the

disclosure statements that led to the discoveries.  

126. Assailing the acceptability of the arrest and the

disclosure statements leading to the recoveries, Mr. Sharma

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and Mr. Singh have contended that the materials brought

on record cannot be taken aid of for any purpose since the

items seized have been planted at the places of recovery and

a contrived version has been projected in court.  That apart,

it  is  submitted  that  the  recoveries  are  gravely  doubtful

inasmuch as the prosecution has not seized all the articles

from one accused on one occasion but on various dates.  We

have cleared the maze as regards the arrest and copiously

noted the manner of arrest of the accused persons and their

leading  to  recoveries.   Be  it  noted,  recovery  is  a  part  of

investigation  and  permissible  under  Section  27  of  the

Evidence  Act.   However,  Mr.  Sharma  has  raised  a

contention that this Court should take note of the fact that

Section  27  of  the  Evidence  Act  has  become  a  powerful

weapon  in  the  hands  of  the  prosecution  to  rope  in  any

citizen.  The said submission, as we perceive, is quite broad

and specious.  It is open to the defence to find fault with

recovery  and  the  manner  in  which  it  is  done  and  its

relevance.   It  is  not  permissible  to advance an argument

that Section 27 of the Evidence Act is constantly abused by

the prosecution or that it uses the said provision as a lethal

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weapon against anyone it likes.  In the instant case, we have

noted how the  recoveries  have  been made  and how they

have been proved by the unimpeachable testimony of the

prosecution witnesses.  

127. Mr. Luthra, learned senior counsel appearing for the

State, would submit that in the present case, the material

objects  recovered  serve  as  links  to  corroborate  and  they

have been used as the law permits.  In this regard, he has

filed a chart which we think it appropriate to reproduce for

better appreciation of the said aspect. It is as follows:

“S.  No.

Accused Time of Arrest

Place of Arrest

Voluntary Disclosure

Personal Items Recovered

Recovery of Items

belonging to PW1

Recovery of Items

belonging to

Prosecut- rix

1 Ram  Singh  

4.15 P.M., 17.12.12

Ravi Dass  Camp

Ex. PW  74/F

Pursuant  to the  disclosure  statement - rod

T-Shirt-DNA and  brown colour  chappal-DNA (Ex.  PW-74/L)  

UNIX mobile phone with MTNL Sim

Iron Rods (Ex.  PW-74/G)  

Documents of Bus  (Ex.PW 74/I)

Bus Keys (Ex.  PW-75/J)   

Bus (Ex. PW-74/K)

Partly unburnt  clothes (the DNA profile of the  Complainant  was found to  match those  found on these  clothes.)

(Ex. PW-74/M)  

Debit  Card in  the name  of Asha  Devi  (Ex.  PW-74/H)

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2 Mukesh 6.30 P.M., 18.12.12

Apprehended  in Karoli,  Rajasthan  formally  arrested at  Safdarjung  Hospital

Ex.PW-60/I A green  T-shirt-DNA, a grey pant and a  bluish-grey jacket (Ex.PW-48/B)

Samsung Galaxy Duos  (Ex.PW-58/A)

Samsung  Galaxy  identified  as that of  PW-1

3 Akshay 9:15 P.M., 21.12.12

Karmala-han g, Tandwa,  Aurangabad

Ex.PW53/I AND Ex.PW53/ D

Blood-Stained  Jeans and Black  Bag Blue Black  coloured Nokia  mobile phone

Metro Card Silver Ring

4 Vinay 1:15 P.M. 18.12.12

In front of  Ravidass  Mandir

Ex. PW  60/H

Ex.PW  68/A

Blue jeans, Black  Sports jacket with  white stripes,  rubber slippers,  black full-sleeved   t-shirt (Ex.  PW-68/B) Nokia mobile phone

Hush Puppies  Shoes  (Ex. PW-68/C) Nokia mobile  phone  (Ex.PW-68/D)

Hush-  Puppies  shoes  identified  as that of  PW-1,

Nokia  mobile  phone  identified  as that of  prosecutri x

5 Pawan 1:30 P.M., 18.12.12

In front of  Ravidas  Mandir

Ex. PW  60/G

Black sweater  having grey stripes, Coca-cola colour  pants, under- wear  having elastic  labeled Redzone, A  pair of sports shoes (Ex. PW-68/F)

Wrist watch (Ex. PW-68/G),   Two currency  notes of  denomination of  Rs.500/- (says  in disclosure  that he got  Rs.1000 as a  part of the loot)  (Ex. PW-68/G)

Sonata  wrist  watch  identified  byPW-1 as belonging  to him

128. Having  reproduced  the  chart,  now  we  shall  refer  to

certain authorities on how a statement of disclosure is to be

appreciated.  In Pulukuri  Kottaya  v.  Emperor50, it  has

been observed:

“[I]t  is  fallacious  to  treat  the  ‘fact  discovered’ within  the  section  as  equivalent  to  the  object produced; the fact discovered embraces the place from  which  the  object  is  produced  and  the

50  AIR 1947 PC 67

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knowledge  of  the  accused  as  to  this,  and  the information  given  must  relate  distinctly  to  this fact.  Information  as  to  past  user,  or  the  past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to  the  discovery  of  the  fact  that  a  knife  is concealed in  the house of  the  informant  to  his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered  is  very  relevant.  But  if  to  the statement  the  words  be  added  ‘with  which  I stabbed  A’,  these  words  are  inadmissible  since they do not relate to the discovery of the knife in the house of the informant.”

129. In  Delhi  Administration  v.  Bal  Krishan  and

others51,  the  Court,  analyzing  the  concept,  use  and

evidentiary value of recovered articles, expressed thus:

“7.  ...  Section  27  of  the  Evidence  Act  permits proof  of  so  much  of  the  information  which  is given by persons accused of an offence when in the custody of a police officer as relates distinctly to  the  fact  thereby  discovered,  irrespective  of whether  such  information  amounts  to  a confession or not. Under Sections 25 and 26 of the Evidence Act, no confession made to a police officer whether in custody or not can be proved as against the accused. But Section 27 is by way of a proviso to these sections and a statement, even by way of confession, which distinctly relates to the  fact  discovered  is  admissible  as  evidence against the accused in the circumstances stated in Section 27….”

51  (1972) 4 SCC 659

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130. In  Mohd.  Inayatullah  v.  State  of

Maharashtra52,  dealing  with  the  scope  and  object  of

Section 27 of the Evidence Act, the Court held:

“12. The expression “provided that” together with the phrase “whether it amounts to a confession or not” show that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26.  It  is  not  necessary in this case to consider if  this section qualifies,  to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the  discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The  third is that at the time of the receipt of the information the accused must be in police custody. The  last but the most important condition  is  that  only  “so  much  of  the information”  as  relates  distinctly to  the  fact thereby discovered is admissible. The rest of the information  has  to  be  excluded.  The  word “distinctly”  means  “directly”,  “indubitably”, “strictly”,  “unmistakably”.  The  word  has  been advisedly used to limit and define the scope of the provable  information.  The  phrase  “distinctly relates  to  the  fact  thereby  discovered”  is  the linchpin  of  the  provision.  This  phrase  refers  to that  part  of  the  information  supplied  by  the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting  of  the  ban  against  confessions  and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth  of  that  part,  and  that  part  only,  of  the information which was the clear, immediate and proximate  cause  of  the  discovery.  No  such

52  (1976) 1 SCC 828

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guarantee or assurance attaches to the rest of the statement  which  may  be  indirectly  or  remotely related to the fact discovered.

13. At one time it was held that the expression “fact discovered” in the section is restricted to a physical or material fact which can be perceived by  the  senses,  and  that  it  does  not  include  a mental  fact  (see  Sukhan v.  Crown53;  Rex v. Ganee54).  Now  it  is  fairly  settled  that  the expression “fact discovered” includes not only the physical object produced, but also the place from which it  is  produced and the  knowledge of  the accused  as  to  this  (see  Palukuri  Kotayya v. Emperor; Udai Bhan v. State of Uttar Pradesh55).

131. Analysing the earlier decisions, in Anter Singh v.

State of Rajasthan56,  the Court summed up the various

requirements of Section 27 as follows:

“(1)  The fact  of  which evidence is  sought to  be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of  the  fact  discovered  must  be  established according  to  the  prescriptions  relating  to relevancy of other evidence connecting it with the crime  in  order  to  make  the  fact  discovered admissible.

(2) The fact must have been discovered.

(3) The discovery must have been in consequence of  some  information  received  from the  accused and not by the accused’s own act.

53  AIR 1929 Lah 344 54  AIR 1932 Bom 286 55  AIR 1962 SC 1116 56  (2004) 10 SCC 657

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(4)  The  person  giving  the  information  must  be accused of any offence.

(5) He must be in the custody of a police officer.

(6)  The  discovery  of  a  fact  in  consequence  of information received from an accused in custody must be deposed to.

(7) Thereupon only that portion of the information which  relates  distinctly  or  strictly  to  the  fact discovered  can  be  proved.  The  rest  is inadmissible.”

132. In State (NCT of Delhi) v. Navjot Sandhu alias

Afsan Guru57, the Court referred to the initial prevalence of

divergent views and approaches and the same being put to

rest  in  Pulukuri  Kottaya case  (supra)  which  has  been

described as locus classicus,  relying on the said authority,

observed:

“120. To a great extent the legal position has got crystallised  with  the  rendering  of  this  decision. The authority of the Privy Council’s decision has not been questioned in any of the decisions of the highest  court  either  in  the  pre-or post-independence era. Right from the 1950s, till the advent of the new century and till date, the passages  in  this  famous  decision  are  being approvingly quoted and reiterated by the Judges of this Apex Court. Yet, there remain certain grey areas  as  demonstrated  by  the  arguments advanced on behalf of the State.”

57  (2005) 11 SCC 600

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133. Explaining the said facet, the Court proceeded to

state thus:

“121.  The  first  requisite  condition  for  utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is  axiomatic  that  the  information  or  disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature  and  extent  of  information  that  can  be proved. It is only so much of the information as relates  distinctly  to  the  fact  thereby  discovered that  can  be  proved  and  nothing  more.  It  is explicitly clarified in the section that there is no taboo  against  receiving  such  information  in evidence  merely  because  it  amounts  to  a confession.  At  the  same  time,  the  last  clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it,  which relates distinctly to the fact discovered  by  means  of  the  information furnished. Thus, the information conveyed in the statement to the police ought to be dissected if necessary so as to admit only the information of the  nature  mentioned  in  the  section.  The rationale behind this provision is that, if a fact is actually  discovered  in  consequence  of  the information supplied,  it  affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating  factor  against  the  accused.  As pointed out by the Privy Council in Kottaya case:

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“clearly  the  extent  of  the  information admissible must depend on the exact nature of the fact discovered”

and the information must distinctly relate to that fact.

Elucidating  the  scope  of  this  section,  the  Privy Council  speaking  through  Sir  John  Beaumont said:   

“Normally the  section  is  brought  into operation  when  a  person  in  police  custody produces  from  some  place  of  concealment some object, such as a dead body, a weapon, or  ornaments,  said to be connected with the crime of which the informant is accused.””

134. Expatriating  the  idea  further,  the  Court

proceeded to lay down:

“121.  ….  We  have  emphasised  the  word “normally” because the illustrations given by the learned Judge are not exhaustive. The next point to be noted is that the Privy Council rejected the argument of the counsel appearing for the Crown that  the  fact  discovered  is  the  physical  object produced  and  that  any  and  every  information which  relates  distinctly  to  that  object  can  be proved. Upon this view, the information given by a  person that  the  weapon produced is  the  one used by him in the commission of the murder will be admissible in its entirety. Such contention of the  Crown’s  counsel  was  emphatically  rejected with the following words:  

“If  this  be  the  effect  of  Section  27,  little substance would remain in the ban imposed by  the  two  preceding  sections  on confessions  made  to  the  police,  or  by

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persons  in  police  custody.  That  ban  was presumably  inspired  by  the  fear  of  the legislature  that  a  person  under  police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object  subsequently  produced,  it  seems reasonable  to  suppose  that  the  persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect.”

Then, Their Lordships proceeded to give a lucid exposition of the expression “fact discovered” in the following passage, which is quoted time and again by this Court:   

“In Their Lordships’  view it  is fallacious to treat the ‘fact discovered’ within the section as  equivalent  to  the  object  produced;  the fact  discovered  embraces  the  place  from which  the  object  is  produced  and  the knowledge of the accused as to this, and the information  given  must  relate  distinctly  to this fact. Information as to past user, or the past history, of  the object produced is not related  to  its  discovery  in  the  setting  in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago.  It leads to the  discovery  of  the  fact  that  a  knife  is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the  statement  the  words  be  added  ‘with which  I  stabbed  A’  these  words  are inadmissible since they do not relate to the

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discovery  of  the  knife  in  the  house  of  the informant.”

(emphasis supplied)

122.  The  approach  of  the  Privy  Council  in  the light of the above exposition of law can best be understood by referring to the statement made by one of the accused to the police officer. It reads thus:   

“…  About  14  days  ago,  I,  Kottaya  and people of  my party lay in wait  for  Sivayya and  others  at  about  sunset  time  at  the corner  of  Pulipad  tank.  We,  all  beat Beddupati  China Sivayya and Subayya,  to death.  The  remaining  persons,  Pullayya, Kottaya and Narayana ran away. Dondapati Ramayya  who  was  in  our  party  received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my stick  in  the  rick  of  Venkatanarasu  in  the village. I will show if you come. We did all this at the instigation of Pulukuri Kottaya.”

The Privy Council held that:   

“14. The whole of that statement except the passage ‘I  hid it (a spear) and my stick in the rick of  Venkatanarasu in the village.  I will show if you come’ is inadmissible.”

(emphasis supplied)

There is  another  important  observation at  para 11 which needs to be noticed. The Privy Council explained the probative force of  the information made  admissible  under  Section  27  in  the following words:   

“Except in cases in which the possession, or concealment,  of  an  object  constitutes  the

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gist  of  the  offence  charged,  it  can  seldom happen  that  information  relating  to  the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.””

135. In the instant case, the recoveries made when the

accused persons were in custody have been established with

certainty.  The witnesses who have deposed with regard to

the recoveries have remained absolutely unshaken and, in

fact, nothing has been elicited from them to disprove their

creditworthiness.  Mr. Luthra, learned senior counsel for the

State, has not placed reliance on any kind of confessional

statement made by the accused persons.  He has only taken

us through the statement to show how the recoveries have

taken place and how they are connected or linked with the

further investigation which matches the investigation as is

reflected  from  the  DNA  profiling  and  other  scientific

evidence.   The  High  Court,  while  analyzing  the  facet  of

Section 27 of the Evidence Act, upheld the argument of the

prosecution  relying  on  State,  Govt.  of  NCT of  Delhi  v.

Sunil and another58,  Sunil Clifford Daniel v. State of

Punjab59, Ashok Kumar Chaudhary and others v. State 58  (2001) 1 SCC 652 59  (2012) 11 SCC 205

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of Bihar60, and Pramod Kumar v. State (Government of

NCT of Delhi)61.

136. On  a  studied  scrutiny  of  the  arrest  memo,

statements recorded under Section 27 and the disclosure

made in pursuance thereof, we find that the recoveries of

articles belonging to the informant and the victim from the

custody of the accused persons cannot be discarded.  The

recovery  is  founded on the  statements  of  disclosure.  The

items that have been seized and the places from where they

have  been  seized,  as  is  limpid,  are  within  the  special

knowledge of the accused persons. No explanation has come

on record from the accused persons explaining as to how

they had got into possession of the said articles.  What is

argued before us is that the said recoveries have really not

been made from the accused persons but have been planted

by the investigating agency with them.  On a reading of the

evidence of the witnesses who constituted the investigating

team,  we  do  not  notice  anything  in  this  regard.   The

submission,  if  we  allow  ourselves  to  say  so,  is  wholly

60  (2008) 12 SCC 173 61  (2013) 6 SCC 588

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untenable and a futile  attempt to avoid the incriminating

circumstance that is against the accused persons.  

Test  Identification  Parade  and  the  identification  in Court

137. Now, we shall deal with the various facets of test

identification parade. Upon application moved by PW-80, SI

Pratibha  Sharma,  Investigating  Officer,  PW-17,  Sandeep

Garg,  Metropolitan  Magistrate,  conducted  the  Test

Identification Parade (TIP) for the accused Ram Singh (since

deceased), who refused to participate in the TIP proceedings

on the ground that he was shown to the witnesses in the

police station.  Since accused Ram Singh died during the

trial, neither the trial court nor the High Court delved into

this aspect regarding the refusal of accused Ram Singh to

participate in the TIP proceedings.

138. On  19.12.2012,  PW-17,  Sandeep  Garg,

Metropolitan  Magistrate  initiated  TIP  proceedings  for

accused Vinay and Pawan, but they refused to participate in

the TIP.  In the TIP proceedings, the Metropolitan Magistrate

has recorded the following:-

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“…………..accused  Pawan  Kumar  @  Kalu  and accused Vinay, both refused to participate in the TIP  proceedings  and  stated  that  they  had committed  a  horrible  crime.   I  recorded  their refusal and gave certificate.”

139. Vinay and Pawan refused to participate in the TIP

proceedings without giving any reason whatsoever.  TIP of

accused Mukesh was conducted on 20.12.2012 at Tihar Jail

by PW-17, Sandeep Garg, in which PW-1, Awninder Pratap,

identified accused Mukesh.  In his testimony, the informant,

PW-1,  has  identified  his  signature  at  point  ‘A’  in  TIP

proceedings  with  respect  to  the  accused  Mukesh,

Ex.PW-1/E.  The High Court has pointed out that there was

no  serious  challenge  to  the  TIP  proceedings  of  accused

Mukesh  in  the  cross-examination  of  the  Metropolitan

Magistrate, PW-17, or even the Investigating Officer, PW-80.

TIP  of  accused  Akshay  was  conducted  on  26.12.2012  at

Central  Jail  No.4,  Tihar  Jail,  where the informant,  PW-1,

identified accused Akshay.  PW-1 identified his signature at

point ‘A’ in the TIP proceedings of accused Akshay marked

as  Ex.PW-1/F.   The  accused  Mukesh  and  Akshay  were

already identified in the TIP proceedings by the informant.

Test  Identification  Proceedings  corroborate  and  lend

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assurance to the dock identification of accused Mukesh and

Akshay by the informant, PW-1.  

140. Criticizing  the  TIP,  it  is  urged  by  the  learned

counsel for the appellants and Mr. Hegde, learned amicus

curiae,  that  refusal  to  participate  may  be  considered  as

circumstance but it cannot by itself lead to an inference of

guilt.  It is also argued that there is material on record to

show that  the  informant  had  the  opportunity  to  see  the

accused persons after they were arrested.   It is necessary to

state here that TIP does not constitute substantive evidence.

It has been held in Matru alias Girish Chandra v. State

of  Uttar  Pradesh62 that  identification  test  is  primarily

meant for the purpose of helping the investigating agency

with an assurance that their progress with the investigation

of an offence is proceeding on the right lines.

141. In  Santokh  Singh v. Izhar  Hussain  and

another63, it has been observed that the identification can

only be used as corroborative of the statement in court.

142. In Malkhansingh v. State of M.P.64, it has been

held thus: 62  (1971) 2 SCC 75 63  (1973) 2 SCC 406 64  (2003) 5 SCC 746

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“7.  … The  identification  parades  belong  to  the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating  agency  to  hold,  or  confers  a  right upon the  accused to  claim a  test  identification parade.  They  do  not  constitute  substantive evidence  and  these  parades  are  essentially governed by Section 162 of the Code of Criminal Procedure.  Failure  to  hold  a  test  identification parade would not make inadmissible the evidence of  identification  in  court.  The  weight  to  be attached to such identification should be a matter for the courts of fact. …”

And again:   

“16.  It  is  well  settled  that  the  substantive evidence is the evidence of identification in court and  the  test  identification  parade  provides corroboration to the identification of the witness in court, if required. However, what weight must be  attached  to  the  evidence  of  identification  in court,  which  is  not  preceded  by  a  test identification parade, is a matter for the courts of fact to examine. …”

 143. In  this  context,  reference  to  a  passage  from

Visveswaran v. State represented by S.D.M.65 would be

apt. It is as follows:

“11. … The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes  are  committed  under  the  cover  of darkness  when  none  is  able  to  identify  the accused.  The  commission  of  a  crime  can  be proved also by circumstantial evidence. …”

65  (2003) 6 SCC 73

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144. In Sidhartha Vashisht alias Manu Sharma v.

State (NCT of Delhi)66, the Court, after referring to Munshi

Singh Gautam v.  State of  M.P.67,  Harbhajan Singh v.

State of J & K68 and Malkhansingh (supra), came to hold

that the proposition of law is quite clear that even if there is

no  previous  TIP,  the  court  may  appreciate  the  dock

identification  as  being  above  board  and  more  than

conclusive.

145. In the case at  hand,  the informant,  apart  from

identifying the accused who had made themselves available

in the TIP, has also identified all of them in Court.  On a

careful  scrutiny  of  the  evidence  on record,  we are of  the

convinced opinion that it deserves acceptance.  Therefore,

we hold that TIP is not dented.

Admissibility  and  acceptability  of  the  dying declaration of the prosecutrix:

146. At  this stage,  it  would be immensely  seemly to

appreciate  the  acceptability  and  reliability  of  the  dying

declaration made by the prosecutrix.  

66 (2010) 6 SCC 1  67 (2005) 9 SCC 631 68 (1975) 4 scc 480

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147. The circumstances in this case, as is noticeable,

makes  the  prosecution bring  in  three  dying  declarations.

Mr.  Sharma  and  Mr.  Singh  have  been  extremely  critical

about the manner in which they have been recorded and

have highlighted the irreconcilable facets. In quintessence,

their submission is that the three dying declarations have

been contrived and deserve to be kept out of consideration.

Mr. Hegde, learned friend of the Court, contends that the

dying declarations do not inspire confidence, for variations

in them relate to the number of assailants, the description

of the bus, the identity of the accused and the overt acts

committed by them.  It is contended that the three dying

declarations made by the prosecutrix vary from each other

and  the  said  variations  clearly  reveal  the  inconsistencies

and the improvements in the dying declarations mirror the

improvements that are brought about in PW-1’s statements

and the progress of the investigation.

148. The sudden appearance of the name ‘Vipin’ in the

third  dying  declaration  after  the  recording  of  Akshay’s

disclosure statement  where he mentions a  person named

Vipin is alleged to be indicative of the fact that the dying

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declaration is,  in fact,  doubtful.   It  is contended that the

prosecution has failed to explain ‘Vipin’, his connection with

the  crime  and  his  elimination  from  the  case.   The

vapourisation  of  Vipin  has  to  be  considered  against  the

backdrop  of  repeated  assertions  by  the  prosecution  that

every  word  of  the  three  dying  declarations  is  correct,

consciously  made  and worthy  of  implicit  belief.   Learned

senior  counsel  has  also  submitted  that  apart  from  the

inconsistencies,  the numerous procedural  irregularities  in

the recording of the declarations make it suspicious.  In this

regard,  lack of  an independent assessment of  the mental

fitness of the prosecutrix, while recording the second dying

declaration,  has  been  highlighted.  The  multiple  choice

questions in the third and final dying declaration are being

nomenclatured as leading questions and it is asserted that

they  have  not  been  satisfactorily  explained  by  the

prosecution.  Further, the evidence by the doctors does not

cure the impropriety of lack of an independent assessment

by the SDM while recording her second dying declaration.  

149. It is submitted that if at all any dying declaration

is  to  be  relied  on,  it  should  only  be  the  first  dying

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declaration made on 16.12.2012 and recorded by PW-49,

Dr.  Rashmi  Ahuja,  and  the  said  dying  declaration  only

states  that  there  were  4 to  5 persons on the  bus.   It  is

further stated that the prosecutrix was raped by a minimum

of 2 men and that she does not remember intercourse after

that.  It is, therefore, unsafe to proceed on the assumption

that all  six persons on the bus committed rape upon the

prosecutrix within a span of 21 minutes.   

150. Keeping  the  aforesaid  criticism  in  view,  we

proceed to  analyse  the  acceptability  and reliability  of  the

dying  declarations.   Firstly,  when  the  prosecutrix  was

brought to the Gynae Casualty about 11:15 p.m., she gave a

brief account of the incident to PW-49, Dr. Rashmi Ahuja, in

her MLC on 16.12.2012.   PW-49, Dr. Rashmi Ahuja, has

deposed that on the night of 16.12.2012 about 11:15 p.m.,

the  prosecutrix  was  brought  to  the  casualty  by  a  PCR

constable and that she gave a brief history of the incident.

PW-49, Dr. Rashmi Ahuja, recorded the same in her writing

in the Casualty/GRR paper, i.e., Ex. PW-49/A.   

151. In the instant case, as per the history told by the

prosecutrix to Dr. Rashmi Ahuja, it was a case of gang rape

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in a moving bus by 4-5 persons when the prosecutrix was

returning after watching a film with her friend.  She was

slapped on her face, kicked on her abdomen and bitten over

lips,  cheek,  breast  and  vulval  region.  She  remembers

intercourse two times and rectal penetration also.  She was

also  forced  to  suck  their  penis  but  she  refused.  All  this

continued for  half  an hour and then she was thrown off

from the moving bus with her friend. We have already stated

about the injuries which were noted by Dr. Rashmi Ahuja in

Ex.PW-49/A.

152. The relevant statement of the prosecutrix in the

Medico Legal Expert, Ex.PW49/A, reads as under:

“… she went to watch movie with her boyfriend, Awnidra:  she left the movie at 8:45 PM and was waiting for bus at Munirka Bus stop where a bus going to Bahadurgarh, stopped and both climbed the bus at around 9 PM.  At around 9:05-9:10 PM,  around  4-5  people  in  the  bus  started misbehaving with the  girl,  took her  to  the rear side of bus while her boyfriend was taken to the front of  bus, where both were beaten up badly. Her clothes were torn over and she was beaten up, slapped repeatedly over her face, bitten over lips, cheeks, breast and Mons veneris.  She was also kicked over her abdomen again and again. She was raped by at least minimum of two men, she  does  not  remember  intercourse  after  that. She had rectal penetration.  They also forced their penis  into  her  mouth  and  forced  her  to  suck

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which she refused and was beaten up instead. This continued for half  hour and she was then thrown  away  from  the  moving  bus  with  her boyfriend.  She was taken up by PCR Van and brought to GRR.  She has history of intercourse with  her  boyfriend  about  two  months  back. (willfully)”  

153. PW-49, Dr. Rashmi Ahuja, had noticed number of

injuries on the person of the prosecutrix and the same were

noted in Ex. PW- 49/B as under:

“Responding  to  verbal commands    

bruise  over  Rt  eye covering whole of the abrasion at Rt angle  of eye

Hairs had grasses in her  hairs    

bruise over left  nostril involving  upper lip Both lips edematous

Her wrapping sheet soaked in blood   

bleeding from upper  lip present Bite mark over right  chick & left chick  present

P-116/min radial feeble Left angle of mouth  injured (laceration)

BP  100/60  mmhg,  RR 18/min

Both ears  unremarkable

Both upper limbs  unremarkable

Rt breast-bite mark  below areola present

Left breast-bruise over Rt  lower introits

A tag torn vagina  hanging outside

Quadrant bite mark in  inferior

P/S bleeding P/V ++  P/V posterior vagina  wall                           

Quadrant P/A Guarding  present L/E cut mark  

tear of about 7-8  cms.

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(sharp) over Rt labia

L/E cut mark (sharp) over  rt. Labia present rest labia  major aid uninora

P/R Rectal tear of  about 4 cm  communicating with  Vagina”

154. PW-50, Dr. Raj Kumar Chejara, and the surgery

team operated the prosecutrix in the intervening night  of

16/17.12.2012 and the operative  findings have also been

earlier noted.  

155. PW-50, Dr. Raj Kumar Chejara, has proved the

OT  notes  as  Ex.PW-50/A  bearing  the  signature  of  Dr.

Gaurav and his own note in this regard is Ex.PW-50/B. As

per his opinion, the condition of the small and large bowels

were  extremely  bad  for  any  definitive  repair.   After

performing the operation,  the  patient  was shifted to  ICU.

The first  surgery was damage control  surgery and it  was

expected that unhealthy bowel would be there.

156. The second surgery was performed on 19.12.2012

by him along with  his  operating  team consisting  of  Prof.

Sunil  Kumar,  Dr.  Pintu  and  Dr.  Siddharth.   From  the

gynaecological side, Dr. Aruna Batra and Dr. Rekha Bharti

were  present  along  with  anaesthetic  team.   The  findings

were as under:

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“Abdominal findings:

1. Rectum  was  longtitudinally  torn  on  anterior aspect in continuation with perineal tear.  This tear was continuing upward involving sigmoid colon,  descending  colon  which  was  splayed open.   The  margin  were  edematous.   There were multiple longitudinal tear in the mucosa of  recto sigmoid area.   Transverse colon was also  torn  and  gangrenous.   Hepatic  flexture, ascending  colon  &  caecum  were  gangrenous with  multiple  perforations  at  many  places. Terminal ileum approximately one and a half feet loosely hanging in the abdominal cavity, it was  avulsed  from  its  mesentry  and  was non-viable.   Rest  of  the  small  bowel  was non-existent  with only  patches  of  mucosa at places  and  borders  of  the  mesentry  was contused.   The  contused  mesentry  borders initially  appeared  (during  1st surgery)  as contused small bowel.

2. Jejunostomy  stoma  was  gangrenous  for approximately 2cm.

3. Stomach  and  duodenum  was  distended  but healthy.”

157. Dying  Declaration  was  recorded  by  SDM,  Smt.

Usha  Chaturvedi,  PW-27,  on  21.12.2012.  The  medical

record of the prosecutrix shows that the prosecutrix was not

found fit for recording of her statement until 21st December,

2012 about 6:00 p.m. when the prosecutrix was declared fit

for recording statement by PW-52, Dr. P.K Verma. PW-52

had  examined  the  prosecutrix  and  found  her  to  be  fit,

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conscious,  oriented  and  meaningfully  communicative  for

making  statement  vide  his  endorsement  at  point  ‘A’  on

application,  Ex.PW-27/DB.  The  second  dying  declaration,

Ex.PW-27/A,  was  recorded  by  PW-27,  Smt.  Usha

Chaturvedi, SDM. This dying declaration is an elaborate one

where the prosecutrix has described the incident in detail

including the act of insertion of rod in her private parts. She

also  stated  that  the  accused  were  addressing  each other

with names like,“Ram Singh, Thakur, Raju, Mukesh, Pawan

and Vinay”.

158. The  relevant  portion  of  the  dying  declaration

Ex. PW-27/A recorded by PW-27, SDM, is extracted below:

“Q.1. What is your name, your father’s name and your residential address?

Ans. My name is prosecutrix and my father name is Sh. ………. and we reside at ……………..

Q.2 Do you study or work some where?

Ans. I  have  completed  my  BPT  (Bachelor  of Physiotherapy).

Q.3 On  which  date  and  place,  the  incident occurred?

Ans. This happened on 16.12.12 in the midst of at about 9:00-9:15 p.m.

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Q.4 Where had you gone on that day and how did you reach the place of occurrence?

Ans. I had gone to watch the movie i.e. “Life of Pi” 6.40-8.30 p.m. to Select City Mall, Saket on the day  of  incident  along  with  my  friend  Sh. Awninder  S/o.  Sh.  Bhanu  Pratap,  R/o  House No.14, Bair Sarai, New Delhi-16. We took an Auto Rikshaw from there and reached Munirka.

Q.5 How did you go further?

Ans. After  that,  I  saw white  colored bus whose conductor  had  been  calling  the  passengers  of Palam Mor and Dwarka. I had to go to Dwarka, Sec-1. That is why both of us, I  and my friend boarded  the  bus  and  gave  twenty  rupees  (Rs. 20/-) at the fare of Rs.10/- per passenger.

Q.6. Were there passengers inside the bus?

Ans. When   I  entered  the  bus  there  were  6-7 passengers. Assuming them to be passenger, we sat outside the cabin of the bus.

Q.7 Provide  the  detailed  information about  the bus?

Ans. The  bus  was  of  the  white  colour  and  the seats  were  of  the  red  colour.  Yellow  coloured curtains were fixed. The glasses of the bus were black and were closed.  I could see outside from inside  but  nothing  could  be  seen  inside  from outside.  In  one  row of  the  bus  there  were  two seats  and  in  the  other  row,  there  were  three seats.

Q,8 After  entering  the  bus,  did  you  suspect anything  seeing  the  people  occupying the  seats there?

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Ans. I had suspected (something amiss) but the conductor had already taken the (fare) money and the bus had started. So, I kept sitting there.

Q.9 What did happen afterwards? Please inform in detail.

Ans. After five minutes when the bus climbed the bridge of Malai Mandir, the Conductor closed the door of the bus and switched off the light inside the bus.  And they came to my friend and started hitting and beating him. Three four (3-4) people caught  hold  of  him  and  the  remaining  people dragged me to the rear  portion of  the bus and tore off  my clothes and took turns to rape me. They hit me on my stomach with an iron rod and bit  me  on  my  whole  body.  Prior  to  that,  they snatched from me and my friend all our articles i.e. mobile phone, purse, credit card, debit card, watches,  etc.  All  six  of  the  persons  committed oral,  vaginal,  anal  rape  on  me.  These  people inserted the iron rod into my body through my vagina and rectum and also pulled it out. They extracted  the  internal  private  part  of  my  body through  inserting  hand  and  iron  rod  into  my private parts and caused hurt to me. Six persons kept  committing  rape  on  me  for  approximately one hour by turns. The drivers kept changing in the moving bus so that they can rape me. ……. PW-27 Usha Chaturvedi,  SDM,  when examined and recorded the dying declaration of prosecutrix come  off  in  her  dying  declaration  she  state  as under:”

159. The  clinical  notes,  Ex.PW-50/C,  and  notes

prepared  by  the  gynaecology  team  were  proved  as

Ex.PW-50/D.  The  gynaecological  notes  were  prepared  on

actual  examination  of  the  patient  on  the  operation  table

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during the surgery. PW-50 further operated the prosecutrix

on 23.12.2012 for peritoneal lavage and placement of drain

under general anaesthesia and his notes are Ex.PW-50/E. 160. Statement  of  the  prosecutrix  was  recorded  by

PW-30,  Pawan  Kumar,  Metropolitan  Magistrate,  vide

Ex.PW-30/D. On 24.12.2012, an application for recording

the statement of  the prosecutrix under Section 164 CrPC

was moved by the Investigating Officer, which is exhibited

as  Ex.PW-30/A  and,  thereafter,  the  learned  Metropolitan

Magistrate fixed the date for recording of the statement as

25.12.2012  at  9:00  a.m.  at  Safdarjung  Hospital  vide  his

endorsement  at  Point  “P”  to  “P-1”  on  Ex.  PW-30/A.  On

25.12.2012,  PW-28, Dr.  Rajesh  Rastogi,  at  12:40 p.m.,

declared the prosecutrix fit for recording statement through

gestures. She was found conscious, oriented, co-operative,

comfortable  and  meaningfully  communicative  to  make  a

statement through non-verbal gestures.

161. On  25.12.2012,  the  prosecutrix’s  statement,

Ex.PW-30/D,  under  Section  164  CrPC  was  recorded  by

PW-30, Pawan Kumar, Metropolitan Magistrate, in the form

of questions by putting her multiple choice questions. This

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statement  was  made  through  gestures  and  writings.  The

statement  recorded  by  PW-30  which  ultimately  became

another dying declaration reads as under:

“25/12/2012  at  01.00  p.m.  at  ICU  Safdarjung Hospital.  Statement  of  Prosecutrix  (Name  and Particulars withheld) As opined by the attending doctors the Prosecutrix is not in position to speak but she is otherwise conscious and oriented and responding by way of gestures, so I am putting question in  such  a  manner  so  as  to  enable  to narrate the incident by way of gesture or writing.  

Ques.  :  When  and  at  what  time  the  incident happened?  1. 20/12/2012  2. 13/12/2012  3. 16/12/2012  

Ans : 16/12/12 (by writing after taking time)

Ques.: Have you seen the staff of the bus?  1. Yes 2. No  

Ans.: 1 yes by gesture (nodding her head)  

Ques.: Have you seen those people at that time?  1. Yes 2. No  

Ans.: 1  

Ques.: By which article they have given beatings? (answer by writing)  

Ans.: By iron rod which was long.  

Ques.: What happened of your belongings means mobile etc.?  1. Fell down  2. Snatched by them  3. Don‘t know

Ans.: 2

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Ques.: Besides rape where and how did you get the injuries? (tried to answer by writing)  

Ans.:  Head, face, back, whole body including genital parts (by gesture indication)  

Ques.: By which names they were addressing to each other? (tried answer by writing)  

Ans.:  1.  Ram Singh,  Mukesh,  Vinay,  Akshay, Vipin, Raju.  

Ques.: What did they do after rape?  1. Left at home 2. Threw at unknown place 3. Got

down at some other bus stop.  

Ans: 2”

As  per  Ex.  PW-30/D,  this  answer  was  written  by  the

prosecutrix in her own hand.   

162. On 26.12.2012, the condition of the prosecutrix

was examined and it  was decided to shift  her abroad for

further  treatment.  Notes  in  this  regard  are  Ex.PW-50/F

bearing the signatures of Dr. Raj Kumar, Dr. Sunil Kumar,

Dr. Aruna Batra and Dr. P.K. Verma. 163. The prosecutrix died at Mount Elizabeth Hospital,

Singapore on 29.12.2012 at 4:45 a.m.  The cause of death is

stated as sepsis with multi organ failure following multiple

injuries, as is evincible from Ex.PW-34/A.

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164. Learned counsel for the appellants have objected

to the admissibility of  the dying declarations available on

record mainly on the ground that they are not voluntary but

tutored.  It  is  argued  that  the  second  and  third  dying

declarations are nothing but a product of tutoring and are

non-voluntary and the only statement recorded is the MLC,

Ex.PW49/A and Ex.  PW49/B,  prepared immediately  after

the  incident,  wherein  the  prosecutrix  has  neither  named

any of the accused nor mentioned the factum of iron rod

being  used  by  the  accused  persons  and  the  act  of  the

accused  in  committing  unnatural  offence.  It  is  further

alleged that  the  prosecutrix  could not  have given such a

lengthy  dying  declaration  running  upto  four  pages  on

21.12.2012  as  she  was  on  oxygen  support.  PW-27  has

deposed that the prosecutrix was on oxygen support at the

time of recording the second dying declaration.  It is further

contended  that  it  must  be  taken  into  account  that  ever

since the prosecutrix was admitted to the hospital, she was

continuously on morphine and, thus,  she could not have

gained  consciousness.  The  second  dying  declaration  has

been further assailed on the ground of being recorded at the

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behest of SDM, PW-27, instead of a Magistrate and that too

after  a  delay  of  nearly  four  days.  The  third  dying

declaration,  Ex.PW-30/D,  recorded  by  the  Metropolitan

Magistrate,  PW-30,  on  25.12.2012  through  gestures  and

writings is controverted by putting forth the allegations of

false medical fitness certificate and absence of videography.

165. Another  argument  advanced  by  the  lerned

counsel raising suspicion on the genuineness of the second

and third dying declarations is that the dates on which the

dying declarations were  recorded have  been manipulated.

The counsel asseverated that the second dying declaration,

i.e.,  Ex.PW-27/A,  purported  to  have  been  recorded  by

PW-27 on 21.12.2012 was, in fact, recorded on the previous

day  as  evidenced  from  the  overwriting  of  the  date  in

Ex. PW-27/B. The counsel also pointed to the overwriting of

the date in the third dying declaration, i.e., Ex. PW-30/C,

recorded by PW-30. It is propounded by them that the date

was  modified  thrice  in  order  to  fit  in  the  fake  chain  of

circumstances contrived by the prosecution.  

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166. Resisting  the  said  submissions,  Mr.  Luthra,

learned senior counsel for the State, astutely contended that

all the three dying declarations recorded at the instance of

the  prosecutrix  are  consistent  and  well  corroborated  by

medical evidence as well as by PW-1’s testimony, and other

scientific  evidence.  The  prosecutrix’s  first  statement,  Ex.

PW-49/A, given to PW-49 was only a brief account of the

heinous act committed on her and in that state of shock,

nothing more could be legitimately expected of her.  Only

after  receiving  medical  attention,  she  was  declared  fit  to

record statement and on 21.12.2012, PW-52 had examined

the prosecutrix and found her to be fit, conscious, oriented

and meaningfully communicative for making statement vide

his endorsement at point ‘A’ on application Ex.PW-27/DB.

PW-27,  Smt.  Usha  Chaturvedi,  SDM,  recorded  her

statement in which the prosecutrix described the incident in

detail and also named the accused persons.  In fact, PW-27

has also deposed before the court that the prosecutrix was

in  a  fit  mental  condition  to  give  the  statement  on

21.12.2012.  Moreover,  the  prosecutrix’s  third  statement,

Ex.PW-30/D, which was recorded in question-answer form

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through gestures  and  writings  by  PW-30,  Pawan  Kumar,

Metropolitan Magistrate, is consistent with the earlier two

dying  declarations  and  that  adds  to  the  credibility  and

conclusively establishes reliability.   

167. In  the  first  dying  declaration  made  to  PW-49,

Dr.  Rashmi Ahuja,  recorded in Ex.PW-49/A and in MLC,

Ex.PW-49/B,  due  to  her  medical  condition,  though  the

prosecutrix  broadly  described  the  incident  of  gang  rape

committed on her and injuries caused to her and PW-1, yet

she failed to vividly describe the incident of inserting iron

rod, etc.   As soon as the prosecutrix was brought to the

hospital,  she  gave  a  brief  description  of  the  incident  to

PW-49, Dr. Rashmi Ahuja.  As it appears from the record,

the prosecutrix had lost sufficient quantity of blood due to

which she was drowsy and could only give a brief account of

the incident and injuries caused to her and the informant.

Even though the prosecutrix has given only a brief account

of  the  occurrence,  yet  she  was  responding  to  verbal

command and hence, the same is natural and trustworthy

and furthermore, Ex. PW-49/A is also consistent with the

other dying declarations.

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168. By  virtue  of  the  second  dying  declaration

recorded as Ex.PW-27/A on 21.12.2012 about 9:10 p.m. by

the SDM, Smt.  Usha Chaturvedi,  the exact  details  of  the

incident  and  the  injuries  caused  to  the  prosecutrix  have

come on record.  The learned SDM has satisfied herself that

the  prosecutrix  was  fit  to  make  the  statement.  While

recording  the  dying  declaration  of  the  prosecutrix,

Ex.PW-27/A,  Dr.  P.K  Verma,  PW-52,  had  found  her

conscious,  oriented and meaningfully  communicative  vide

his  endorsement  at  point  ‘A’  on  the  application,

Ex.PW-27/DB. It was only thereafter that PW-27, Smt. Usha

Chaturvedi, SDM, recorded the statement, Ex.PW-27/A, of

the prosecutrix. The prosecutrix not only signed it but even

wrote the date and time in this statement. She narrated the

entire  incident  specifying  the  role  of  each  accused;  gang

rape/unnatural  sex  committed  upon  her;  the  injuries

caused in her vagina and rectum by use of iron rod and by

inserting of hands by the accused; description of the bus,

robbery and lastly throwing of both the victims out of the

moving  bus,  Ex.P1,  in  naked  condition  at  the  footfall  of

Mahipalpur flyover.

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169. As  it  appears  from  the  record,  PW-27,  after

recording the statement of the prosecutrix, as contained in

Ex.PW-27/A,  forwarded  the  statement  alongwith  the

forwarding letter, Ex. PW-27/B, to the ACP, Vasant Vihar

undersigned by herself.  Ex. PW-27/A, which contains the

statement  of  the  prosecutrix,  is  duly  signed  by  the

prosecutrix  on  all  the  pages  and  also  signed  by  PW-27,

SDM. PW-27 has certified in Ex.PW-27/A that the signature

of the prosecutrix was obtained in her presence at 9:00 p.m.

on 21.12.2012 after  which  she  has  signed  the  same.  No

overwriting of date is evidenced in Ex.PW-27/A. However, so

far as the forwarding letter, i.e., Ex.PW-27/B, is concerned,

the date mentioned by PW-27 after putting her signature is

overwritten  as  21.12.2012.  When cross-examined  on  this

aspect, PW-27 has stated that she had herself overwritten

the  date  and,  thus,  overruled  the  possibility  of  any

falsification  of  the  document  at  the  behest  of  the

investigating team. PW-27 explained the overwriting of date

as a ‘human error’ and the same has been rightly construed

by  the  trial  court  and  accepted  by  the  High  Court  as  a

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complete explanation. The relevant statement of PW-27 is as

under:

“It is correct that in Ex.PW27/B there is an over writing on the date under my signature. VOL: It was a human error. The statement was recorded on 21-12-2012, so for all purpose this date will be 21-12-2012.”

170. Agian  on  25.12.2012  on  an  application,

Ex.PW-28/A, though Dr. P.K Verma, PW-52, opined that the

prosecutrix  was  unable  to  speak  as  she  was  having

endotracheal tube, i.e, in larynx and trachea and was on

ventilator, yet  PW-28, Dr. Rajesh Rastogi, declared her to

be  conscious,  oriented  and  meaningfully  communicative

through  non-verbal  gestures  and  fit  to  give  statement.

PW-30,  Pawan  Kumar,  Metropolitan  Magistrate,  also

satisfied himself qua fitness and ability of the prosecutrix to

give  rational  answers  by  gestures  to  his  multiple  choice

questions.  The  opinion  of  the  doctors  obtained  prior  to

recording  of  the  statements,  Ex.PW-27/A  and

Ex.PW-30/D-1, as also the observations made by the SDM

and  Metropolitan  Magistrate  qua  her  fitness  cannot  be

disregarded  completely  on  the  basis  of  surmises  of  the

learned counsel for the appellants.

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171. Adverting  to  the  third  dying  declaration,

Ex.PW-30/C,  we are able  to  appreciate  that  PW-30,  after

recording the statement of the prosecutrix, has signed the

document.  The  date  mentioned  therein  is  overwritten  as

25.12.2012.  However,  in  the  forwarding  note  to  the

investigating officer  which is  contained in continuation of

the prosecutrix’s statement annexed as Ex. PW-30/C, the

signature and date mentioned by PW-30 is very clear and no

overwriting  is  visible.   Be  it  noted,  PW-30  was  never

cross-examined on the aspect of overwriting of the date in

Ex.PW-30/C.  The learned counsel  has,  for  the first  time,

raised  this  issue  before  us  merely  to  substantiate  his

suspicion of manipulation on the part of  the prosecution.

We  hold  that  pointing  at  insignificant  errors  is

inconsequential so far as cogent evidence produced by the

prosecution  stand  on  a  terra  firma.  It  is  beyond  human

prudence to discard the detailed and well signed statements

of  the  prosecutrix,  in  spite  of  clear  date  put  by  herself,

merely because PW-30 erred at one point of time in correctly

recording the date. Moreover, the testimony of PW-52, Dr.

P.K. Verma, who was   incharge of the ICU and in whose

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supervision  the  entire  treatment  and  recording  of

statements  by  the  prosecutrix  was  done,  cannot  be

discarded on account of meagre technical errors.

172. Another  line  of  argument  developed  by  the

learned counsel is that there has been failure on the part of

the prosecutrix to disclose the names of any of the accused

persons in the brief history given by her to the doctor in

MLC,  Ex.PW-49/A,  and  so,  her  dying  declarations,

Ex.PW-27/A and Ex.PW-30/D-1, where she had given the

names  of  the  accused  persons,  are  tutored  versions  and

cannot  form  the  basis  of  conviction.  This  argument,

however, is completely unjustified in the light of the medical

condition of the prosecutrix when she was brought to the

hospital. As per the records, the prosecutrix was brought to

the  hospital  in  a  state  of  sub-consciousness  and  sheer

trauma.  In  her  MLC,  Ex.PW-49/B,  her  condition  is

described as  drowsy responding only to verbal commands

and  hence,  not  completely  alert  due  to  the  shock  and

excessive loss of blood. The prosecutrix was declared fit to

make  statements,  Ex.PW-27/A  and  Ex.PW-30/D-1, only

when  she  was  operated  thrice.  Her  dying  declarations,

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Ex.PW-27/A and Ex.PW-30/D-1, also stand corroborated by

the medical evidence as well as the testimony of PW-1.  

173. A dying  declaration  is  an  important  piece  of

evidence  which,  if  found  veracious  and  voluntary  by  the

court,  could  be  the  sole  basis  for  conviction.  If  a  dying

declaration is found to be voluntary and made in fit mental

condition,  it  can  be  relied  upon  even  without  any

corroboration. However, the court, while admitting a dying

declaration, must be vigilant towards the need for  'Compos

Mentis Certificate' from a doctor as well as the absence of

any  kind  of  tutoring.  In  Laxman  v.  State  of

Maharashtra69,  the law relating to dying declaration was

succinctly put in the following words:  

“3. … A dying declaration can be oral or in writing and  any  adequate  method  of  communication whether by words or by signs or otherwise will suffice  provided  the  indication  is  positive  and definite. In most cases, however, such statements are  made  orally  before  death  ensues  and  is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no  oath  is  necessary  nor  is  the  presence  of  a Magistrate  absolutely  necessary,  although  to assure  authenticity  it  is  usual  to  call  a Magistrate,  if  available  for  recording  the statement  of  a  man  about  to  die.  There  is  no requirement of law that a dying declaration must

69  (2002) 6 SCC 710

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necessarily  be  made  to  a  Magistrate  and  when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently,  what  evidential  value  or  weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular  case.  What  is  essentially  required  is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of  the  Magistrate  that  the  declarant  was  fit  to make the statement even without examination by the  doctor  the  declaration  can  be  acted  upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor  is  essentially  a  rule  of  caution  and therefore the voluntary and truthful nature of the declaration can be established otherwise.”

174. The legal position regarding the admissibility of a

dying  declaration  is  settled  by  this  Court  in  several

judgments. This Court, in Atbir v. Government of NCT of

Delhi70, taking  into  consideration the earlier  judgment  of

this Court in  Paniben v. State of Gujarat71 and another

judgment  of  this  Court  in  Panneerselvam  v.  State  of

Tamil  Nadu72, has  exhaustively  laid  down  the  following

guidelines  with  respect  to  the  admissibility  of  dying

declaration:

70  (2010) 9 SCC 1 71  (1992) 2 SCC 474 72  (2008) 17 SCC 190

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“22. (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

(ii)  The  court  should  be  satisfied  that  the deceased was in a fit state of mind at the time of making  the  statement  and  that  it  was  not  the result of tutoring, prompting or imagination.

(iii)  Where  the  court  is  satisfied  that  the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that  the  dying declaration cannot  form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi)  A  dying  declaration  which  suffers  from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix)  When  the  eyewitness  affirms  that  the deceased was not in a fit and conscious state to make  the  dying  declaration,  medical  opinion cannot prevail.

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(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment  to  make  it  the  basis  of  conviction, even if there is no corroboration.”

175. It is well settled that dying declaration can form

the  sole  basis  of  conviction  provided  that  it  is  free  from

infirmities and satisfies various other tests.  In a case where

there  are  more  than  one  dying  declaration,  if  some

inconsistencies are noticed between one and the other, the

court  has to examine the nature of  inconsistencies as to

whether they are material or not. The court has to examine

the contents of  the dying declarations in the  light  of  the

various  surrounding  facts  and  circumstances.  In

Shudhakar  v.  State  of  Madhya Pradesh73,  this  Court,

after referring to the landmark decisions in Laxman (supra)

and  Chirra Shivraj  v.  State of  Andhra Pradesh74,  has

dealt  with  the  issues  arising  out  of  multiple  dying

declarations and has gone to the extent of declining the first

dying  declaration  and  accepting  the  subsequent  dying

declarations.  The  Court  found  that  the  first  dying

declaration was not voluntary and not made by free will of

73  (2012) 7 SCC 569 74  (2010) 14 SCC 444

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the deceased; and the second and third dying declarations

were voluntary and duly corroborated by other prosecution

witnesses  and  medical  evidence.  In  the  said  case,  the

accused was married to the deceased whom he set ablaze by

pouring  kerosene  in  the  matrimonial  house  itself.  The

smoke arising from the house attracted the neighbours who

rushed the victim to the hospital where she recorded three

statements before dying.  In her first statement given to the

Naib Tehsildar, she did not implicate her husband, but in

the second and third statements, which were also recorded

on the same day, she clearly stated that the accused poured

kerosene  on  her  and  set  her  on  fire.  The  accused  was

convicted under Section 302 IPC. In this regard, the Court

made the following observations:

“21. Having referred to the law relating to dying declaration, now we may examine the issue that in  cases  involving  multiple  dying  declarations made by the deceased, which of the various dying declarations should be believed by the court and what  are  the  principles  governing  such determination. This becomes important where the multiple dying declarations made by the deceased are either  contradictory or are at  variance with each other to a large extent. The test of common prudence would be to first examine which of the dying  declarations  is  corroborated  by  other prosecution  evidence.  Further,  the  attendant circumstances, the condition of the deceased at

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the  relevant  time,  the  medical  evidence,  the voluntariness and genuineness of the statement made  by  the  deceased,  physical  and  mental fitness  of  the  deceased  and  possibility  of  the deceased being  tutored are  some of  the  factors which  would  guide  the  exercise  of  judicial discretion by the court in such matters.”

176. Recently,  a  two-Judge  Bench  of  this  Court  in

Sandeep and another v. State of Haryana75 was faced

with a  similar  situation where  the  first  dying  declaration

given  to  a  police  officer  was  more  elaborate  and  the

subsequent  dying  declaration  recorded  by  the  Judicial

Magistrate  lacked certain information given earlier.   After

referring to the two dying declarations, this Court examined

whether there was any inconsistency between the two dying

declarations. After examining the contents of the two dying

declarations,  this  Court  held  that  there  was  no

inconsistency  between  the  two  dying  declarations  and

non-mention  of  certain  features  in  the  dying  declaration

recorded by the Judicial Magistrate does not make both the

dying declarations incompatible.  

177. In this  regard,  it  will  be  useful  to  reproduce  a

passage  from  Babulal  and  others  v.  State  of  M.P.76

75 (2015) 11 SCC 154 :  (2015) 2 SCR 1999 SC 76 (2003) 12 SCC 490

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wherein the value of dying declaration in evidence has been

stated:

“7.  … A person who is  facing  imminent  death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is  obliterated.  The  mind  gets  altered  by  most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is “a man will not meet his Maker with a lie  in  his  mouth”  (nemo  moriturus  praesumitur mentire). Mathew Arnold said, “truth sits on the lips  of  a  dying  man”.  The  general  principle  on which the species of evidence is admitted is that they  are  declarations  made  in  extremity,  when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is  silenced and mind induced by  the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed  by  a  positive  oath  administered  in  a court of justice. …”   

178. Dealing with oral dying declaration, a two-Judge

Bench  in  Prakash and  another  v. State  of  Madhya

Pradesh77 has ruled thus:

“11. … In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first  opportunity  and  if  the  victim  was  in  a position  to  communicate,  it  is  reasonably expected  that  he  would  give  the  names  of  the

77 (1992) 4 SCC 225

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assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants  because  it  is  nobody’s  case  that  the deceased did not know the accused persons. It is therefore  quite  likely  that  on  being  asked  the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted  the  dying  declaration  and  we  do  not think that such a finding is perverse and requires to be interfered with. …”

179. In  Vijay Pal v.  State (Government of  NCT of

Delhi)78, after referring to the Constitution Bench decision

in  Laxman (supra) and the two-Judge Bench decisions in

Babulal (supra) and Prakash (supra), the Court held:

“22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a  condition,  he  or  she  could  not  have  made  a dying  declaration  to  a  witness,  there  is  no justification to discard the same. In the instant case, PW 1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect.

23. It is contended by the learned counsel for the appellant  that  when  the  deceased  sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably  refer  to  the  decision  in  Mafabhai

78 (2015) 4 SCC 749

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Nagarbhai Raval v.  State of Gujarat79 wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying  declaration  was  found  to  be  worthy  of reliance.

24. In  State of M.P. v.  Dal Singh80,  a two-Judge Bench placed reliance on the dying declaration of the  deceased  who  had  suffered  100%  burn injuries on the ground that the dying declaration was found to be credible.”   

180. In the case at  hand,  the  first  statement  of  the

prosecutrix was recorded by PW-49, Dr. Rashmi Ahuja, on

the  night  of  16.12.2012  and  the  second  statement  was

recorded by the SDM on 21.12.2012 after  a delay of  five

days. In the present facts and circumstances of the case, we

do  not  find  that  there  is  any  inconsistency  in  the  dying

declarations  to  raise  suspicion  as  to  the  genuinity  and

voluntariness  of  the  subsequent  dying  declarations.  The

prosecutrix had been under constant medical attention and

was reported to be fit for giving a statement on 21.12.2012

only. On the night of the incident itself, she underwent first

surgery  conducted  by  PW-50,  Dr.  Raj  Kumar  Chejara,

79 (1992) 4 SCC 69 80 (2013) 14 SCC 159

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Surgical  Specialist,  Department  of  Surgery,  Safdarjung

Hospital,  New  Delhi  and  his  surgery  team comprising  of

himself,  Dr.  Gaurav  and Dr.  Piyush,  and the  prosecutrix

was shifted to ICU. The second surgery was performed on

her  on  19.12.2012.  Ex.PW-50/C,  OT  notes  dated

19.12.2012  show  that  the  prosecutrix  was  put  on

ventilation  after  the  surgery.  Considering  the  facts  and

circumstances  and  the  law  laid  down  above,  a  mere

omission on the part of the prosecutrix to state the entire

factual  details  of  the  incident  in  her  very  first  statement

does  not  make  her  subsequent  statements  unworthy,

especially  when her  statements  are  duly  corroborated by

other prosecution witnesses including the medical evidence.

181. The contention that  no dying  declaration could

have been recorded on 21.12.2012 as the prosecutrix was

administered morphine does not hold good as PW-52, Dr.

P.K. Verma, has deposed that morphine was injected at 6:00

p.m. on 20.12.2012 and its effect would have lasted for only

3-4  hours.  PW-52  has  denied  that  the  prosecutrix  was

unconscious  and  had  difficulty  in  breathing  at  the  time

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when  she  made  the  statement  to  PW-27,  SDM,  on

21.12.2012.

182. Yet another objection raised by the the learned

counsel for the appellants concerning the medical fitness of

the prosecutrix, while recording the third dying declaration

is  that  when  PW-30,  Metropolitan  Magistrate,  Pawan

Kumar, recorded the dying declaration of the prosecutrix,

she was not in a position to speak as per the endorsement

made by PW-52, Dr. P.K. Verma, and, therefore, no weight

could  be  attached  to  the  dying  declaration  recorded  by

PW-30.  In  this  regard,  reliance  is  placed  upon

Ex.PW-30/B1. This contention was raised before the High

Court as well as the trial court and while considering the

contention, we find that:

“On 25.12.2012, application [Ex.PW-30/B] moved by  P.W.-80  S.I.  Pratibha  Sharma between  9:30 a.m.  to  10:00  a.m.  seeking  opinion  regarding fitness of prosecutrix to get statement recorded. Pw-52 Dr. P.K. Verma examined the prosecutrix and  opined  at  12:35  p.m.  that  “patient  has endotracheal tube in place (i.e. in her larynx and trachea)  and  was  on  ventilator  and  hence  she could not speak”.

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183. PW-28,  Dr.  Rajesh  Rastogi,  opined  vide

Ex.PW-28/A  at  12:40  p.m.  on  25.12.2012  that  the

prosecutrix  was  conscious,  cooperative,  meaningfully

communicative through non-verbal  gestures,  oriented and

fit to give statement. PW-28, Dr. Rajesh Rastogi, examined

the  prosecutrix  around  12  noon  and  finished  it  by

12:00-12:30 p.m.  On 25.12.2012 at  12:35 p.m.,  Dr.  P.K.

Verma  had  endorsed  on  the  document  Exhibit  PW-30/B

that the victim could not  speak as she had endotracheal

tube in place (that is, in larynx and trachea) and was on

ventilator.  However,  subsequently,  at  12:40  p.m.  on  the

same day, PW-28, Dr. Rajesh Rastogi, had endorsed on the

said document,  Ex.PW-30/B, to the effect that the victim

was  conscious,  cooperative,  meaningfully  communicative,

oriented, responding through non-verbal gestures and fit to

give  statement.  The  learned  counsel  contended that  it  is

inconceivable that the prosecutrix who was on life support

system  at  12:35  p.m.  could  be  opined  to  be  conscious,

cooperative  and fit  to  give  statement  within five  minutes,

i.e., at 12:40 p.m.

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184. The  said  contention,  as  we  find,  has  been

appropriately dealt with by both courts below by adverting

to the depositions of  PW-52, Dr. P.K. Verma, and PW-28,

Dr. Rajesh Rastogi. Regarding the fit mental condition of the

prosecutrix and as to the different endorsements made by

PW-52, Dr. P.K. Verma, and PW-28, Rajesh Rastogi, PW-52

was questioned suggesting that the prosecutrix was not in a

fit mental condition to give the dying declaration. PW-52 has

clearly deposed in his cross-examination that he had never

endorsed  that  the  victim  was  unfit  to  give  statement  at

12:35 p.m., rather he had said that she was on ventilator

and hence, could not speak. The aforesaid explanation of

PW-52,  Dr.  P.K.  Verma,  who was incharge  of  the  ICU in

Safdarjung Hospital  at  the  relevant  time makes  it  limpid

that even though the prosecutrix was not able to speak, yet

she was conscious and oriented and was in a position to

make the statement by gestures.  

185. The contention that  the  third dying declaration

made through gestures lacks credibility and that the same

ought to have been videographed, in our view, is totally sans

substance. The dying declaration recorded on the basis of

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nods and gestures is not only admissible but also possesses

evidentiary value,  the extent  of  which shall  depend upon

who recorded the statement. In the instant case, the dying

declaration  was  recorded  by  PW-30,  Mr.  Pawan  Kumar,

Metropolitan Magistrate.  A perusal of the questions and the

simple  answers  by  way  of  multiple  choice  put  to  the

prosecutrix is manifest of the fact that those questions and

answers were absolutely simple, effective and indispensable.

The  dying  declaration  recorded  by  PW-30,  Ex.PW-30/D,

though  by  nods  and  gestures  and  writings,  inspires

confidence  and  has  been  rightly  relied  upon by  the  trial

Court as well as the High Court.  Videography of the dying

declaration is only a measure of caution and in case it is not

taken care of, the effect of it would not be fatal for the case

and  does  not,  in  any  circumstance,  compel  the  court  to

completely discard that particular dying declaration.  

186. In  Meesala  Ramakrishan  v.  State  of  A.P.81,

this  Court,  while  admitting  the  dying  declaration  made

through gestures, made the following observations:

“20.  … that dying declaration recorded on the basis of nods and gestures is not only admissible but  possesses  evidentiary  value,  the  extent  of

81  (1994) 4 SCC 182

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which  shall  depend  upon  who  recorded  the statement,  what  is  his  educational  attainment, what gestures and nods were made,  what were the questions asked — whether they were simple or  complicated  —  and  how  effective  or understandable the nods and gestures were.”  

187. In  B.  Shashikala  v.  State  of  A.P.82,  it  was

observed that:

“13. The evidence of PW 8 is absolutely clear and unambiguous as regards the manner in which he recorded the statement of the deceased with the help of PW 4. It is also evident that he also has knowledge of Hindi although he may not be able to read and write or speak in the said language. His  evidence  also  shows  that  he  has  taken  all precautions  and  care  while  recording  the statement. Furthermore, he had the opportunity of recording the statement of the deceased upon noticing her gesture. The court in a situation of this  nature  is  also  entitled  to  take  into consideration  the  circumstances  which  were prevailing at the time of recording the statement of the deceased.”

188. Appreciating the third dying declaration recorded

on the basis of gestures, nods and writings on the base of

aforesaid pronouncements, we have no hesitation in holding

that the dying declaration made through signs, gestures or

by nods are admissible as evidence, if proper care was taken

at the time of recording the statement. The only caution the

court ought to take is that the person recording the dying

82  (2004) 13 SCC 249

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declaration  is  able  to  notice  correctly  as  to  what  the

declarant means by answering by gestures or nods. In the

present case, this caution was aptly taken, as the person

who recorded the prosecutrix’s  dying  declaration was the

Metropolitan  Magistrate  and  he  was  satisfied  himself  as

regards the mental alertness and fitness of the prosecutrix,

and  recorded  the  dying  declaration  of  the  prosecutrix  by

noticing her gestures and by her own writings.

189. Considering the facts  and circumstances of  the

present case and upon appreciation of the evidence and the

material  on  record,  in  our  view,  all  the  three  dying

declarations  are  consistent  with  each  other  and  well

corroborated with other evidence and the trial court as well

as the High Court has correctly placed reliance upon the

dying  declarations  of  the  prosecutrix  to  record  the

conviction.

Insertion of the iron rod:

190. Presently,  we  shall  advert  to  the  contentions

raised  as  regards  the  use  of  iron  rod  for  causing

recto-vaginal injury. The case of the prosecution is that the

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accused, in most inhumane and unfeeling manner, inserted

iron rod in the rectum and vagina of the prosecutrix and

took  out  the  internal  organs  of  the  prosecutrix  from the

vaginal and anal opening while pulling out the said iron rod.

They also took out the internal organs of the prosecutrix by

inserting iron rod in the vagina of the prosecutrix thereby

causing dangerous injuries.  Two iron rods, Ex.P-49/1 and

Ex.P-49/2, were recovered vide seizure memo Ex.PW-74/G

by  the  Investigating  Officer,  PW-80,  at  the  instance  of

accused Ram Singh (since deceased).  As per Ex.PW-49/A,

the  internal  injuries  sustained  by  the  victim  were  like

vaginal  tear,  profused  bleeding  from  vagina,  rectal  tear

communicating with vaginal tear and other injuries.

191. PW-50, Dr. Raj Kumar Chejara, and the surgery

team operated the prosecutrix in the intervening night  of

16/17.12.2012 and the operative findings are as under:

a. collection  of  around  500ml  of  blood  in peritoneal cavity

b. stomach pale, c. duodenum contused d. jejunum contused & bruised at  whole  of  the

length  and  lacerated  &  transected  at  many places.  First transaction was 5cm away from DJ junction.  Second one was 2 feet from the DJ,  after  that  there  was  transaction  and

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laceration at many places. Jejunal loop was of doubtful  viability.  Lieum  –  whole  lieum  was totally  contused  and  it  was  of  doubtful viability.  Distanl  lieum  was  completely detached from the mesentry till ICJ (ileocaecal junction).  It was completely devascularized.

e. Large bowel was also contused, bruised and of doubtful  viability.   Descending  colon  was lacerated  vertically  downward  in  such  a manner that it was completely opened.

f. Sigmoid colon & rectum was lacerated at many places.   Linearlyu,  mucosa  was  detached completely  at  places,  a  portion  of  it  around 10cm was prolapsing through perineal wound.

g. Liver and spleen was normal. h. Both  sides  retro  peritoneal  (posterior  wall  of

the abdomen) haematoma present. i. Mesentry and omentum was totally  contused

and bruised. j. Vaginal tear present, recto vaginal septum was

completely torn.

192. PW-80,  SI  Pratibha  Sharma,  the  Investigating

Officer,  deposed  before  the  trial  court  that  accused  Ram

Singh had led her inside the bus, Ex.P1 and had taken out

two iron rods from the shelf of the driver's cabin.  One of the

rods,  59  cm  in  length,  was  primarily  used  for  changing

punctured tyres; it was hooked from one end and chiseled

from the other.  It also had multiple serrations on both the

ends.  The other rod was of silver colour, hollow and 70 cm

long.  This rod formed part of a hydraulic jack and was used

as its lever, Ex.PW49/G.  The rods were blood stained and

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the recovered rods were sealed with the seal of PS and were

deposited in the  Malkhana. On 24.12.2012, the said iron

rods along with the sample seal were sent to CFSL, CBI for

examination  through  SI  Subhash,  PW-74,  vide  RC  No.

178/21/12,  proved  as  Ex.PW-77/R.  The  DNA  report

prepared by Dr. B.K. Mohapatra, PW-45, suggests that the

DNA profile developed from the bloodstains from both the

iron  rods  is  consistent  with  the  DNA  profile  of  the

prosecutrix.  

193. Mr. Sharma, learned counsel for the appellants,

has countered the prosecution case on the use of iron rods.

He has drawn support  from the medical  records and the

testimony of the witnesses as also the prosecutrix to assert

the aforesaid submission. He submits that the prosecution

has fabricated the story as regards the use of iron rods only

to  falsely  implicate  all  the  accused  in  the  death  of  the

prosecutrix.  The defence has refuted the use of iron rods by

the accused on the ground that the informant as well as the

prosecutrix did not mention about the use of iron rods in

their first statements. The main contention of the accused is

that the prosecutrix herself, in her first statement given to

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Dr. Rashmi Ahuja, PW-49, Ex. PW-49/A, failed to disclose

the use of iron rods. He relies on the absence of the words

‘iron  rods’  in  Ex.PW-49/A  to  fortify  this  submission.  He

contends that as recorded by PW-49, the prosecutrix was in

a fit state of mind for she even gave her residential address

after undergoing the traumatic experience, but she failed to

mention that the accused persons also used the iron rods

on  her,  a  fact  that  would  have  had  a  bearing  on  her

treatment.   

194. The aforesaid proponement is not sustainable as

MLC, Ex.PW49/A, of the prosecutrix suggests that she was

brought to the hospital in a traumatized state with grievous

injuries and she was cold and clammy, i.e., whitish (due to

vasoconstriction)  and  had  lost  a  lot  of  blood.  As  per

Ex.PW-49/A,  the  prosecutrix  was  sure  of  intercourse  to

have  been  committed  twice  along  with  rectal  penetration

whereafter she did not remember intercourse.  It is worthy

to note that she was oscillating between consciousness and

unconsciousness at the time of the incident and there was

loss of lot of blood by the time she had reached the hospital

which is evident from Ex. PW49/B-MLC. A victim who has

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just  suffered a ghastly and extremely frightening incident

cannot be expected to immediately come out of the state of

shock  and  state  the  finest  details  of  the  incident.  The

subsequent  dying  declarations  of  the  prosecutrix

corroborated by the medical evidence cannot be disregarded

merely  on  the  ground  that  the  use  of  iron  rods  is  not

substantiated by the prosecutrix’s first statement.  

195. The  gravity  and  hideousness  of  the  injuries

caused to the prosecutrix,  as has already been discussed

above, clearly shows the use of iron rods by the accused.

The injuries caused to the prosecutrix by incessantly and

abominably injuring her private parts using the concerned

iron  rods  were  so  grave  that  death  was  the  inevitable

consequence.  As  already  noted,  both  the  iron  rods,

Ex.P-49/1 and Ex.P-49/2, were recovered at the instance of

accused Ram Singh  from inside  the  concerned  bus.  The

DNA profile developed from the blood stains obtained from

the iron rods is also consistent with the DNA profile of the

prosecutrix.  In  such  circumstances,  merely  because  the

finger prints of the accused were not obtained from the iron

rods,  it  cannot  be  concluded  that  the  accused  were  not

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linked with the concerned iron rods.  Accused Ram Singh

himself  had  the  iron  rods  recovered  to  the  Investigating

Officer.   Furthermore,  the  dying  declaration  of  the

prosecutrix, which is highly reliable, clearly establishes the

horrendous use of iron rods by the accused persons.  

196. The iron rods were sent for forensic examination

to  the  CFSL.  The  DNA  profile  developed  from  the  blood

stains obtained from the iron rods recovered at the instance

of accused Ram Singh was found to be of female origin and

were  found  to  be  consistent  with  the  DNA profile  of  the

prosecutrix. Hence, the factum of insertion of iron rods in

the private parts of the prosecutrix is also fortified by the

scientific evidence.

197. PW-1, in his chief examination, deposed that he

was severely assaulted by the accused with iron rods on his

head and the rest of his body.  It is submitted that as per

MLC of PW-1, Ex.PW-51/A, the nature of injuries sustained

by  PW-1  were  simple.  It  is  contended  that  if  PW-1  was

beaten with the iron rod in the manner alleged by him, he

would have sustained more serious injuries. It is canvassed

that PW-1 sustained only simple injuries which leads to an

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inference  that  the  iron  rod  was  not  used  in  the  manner

stated by the prosecution. Of course, as per Ex.PW-51/A,

PW-1  sustained  simple  injuries  but  as  seen  from

Ex.PW-51/A, there was also nasal bleeding from his nose

and PW-1 was also vomiting.   Merely because the injuries

sustained by PW-1 were opined to be of simple nature, the

use of iron rods cannot be doubted.  

198. Learned  counsel  for  the  appellants  further

stressed on the  point  that  PW-1 neither  in his  MLC,  Ex.

PW-51/A, nor in his complaint,  Ex.PW1/A, mentioned the

use of iron rod; the description of bus or the names of the

accused.  In this regard, it has to be kept in mind that the

purpose of FIR is mainly to set the criminal law in motion

and  not  to  lay  down every  minute  detail  and  the  entire

gamut of the evidence relating to the case and, therefore,

non-mention of use of iron rods in the FIR does not remotely

create  a  dent  in  the  case  of  the  prosecution.  When  the

subsequent statements of the prosecutrix well corroborated

by  the  medical  evidence  are  available,  it  is  completely

immaterial that the statement of PW-1 does not mention the

use of iron rods. Thus, PW-1’s omission to state the factum

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of use of iron rods in his complaint or MLC is not fatal to

the case of the prosecution.

199. It is apposite to state here that non-mention of

the use of iron rods in PW-1’s statement has been a ground

for  giving  rise  to  suspicion  of  his  testimony.  We  find  it

difficult  to  comprehend as to how PW-1 could have been

aware of any use of iron rods against the prosecutrix. PW-1

was being held by the accused towards the front of the bus,

while the prosecutrix was being raped at the rear side of the

bus and the lights of the bus also had been turned off. His

statement in his complaint, Ex.PW-1/A, that he heard the

prosecutrix  shouting  and  crying  and  that  her  voice  was

oscillating is consistent with the narration of facts as also

the medical records.

200. The second statement of the prosecutrix recorded in

Ex.PW-27/A by PW-27, Smt.  Usha Chaturvedi,  has detailed

the account of the entire incident specifying the role of each

accused; gang rape/unnatural sex committed upon her; and

the injuries caused in her vagina and rectum by use of iron

rod and by inserting of hands by the accused are mentioned.

This statement, in fact,  bears the date and signature of  the

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prosecutrix and records that the accused committed gang rape

on  her,  inserted  iron  rod  in  the  vagina  and  through  anal

opening  causing  injuries  to  the  internal  organs  of  the

prosecutrix. The subsequent statement of the prosecutrix also

affirms the above facts. That apart, as per the medical opinion

Ex.PW-49/G given by PW-49, the recto-vaginal injury of  the

prosecutrix could be caused by the rods recovered from the

bus.  

Anatomy argument

201. Learned counsel for the appellants also submitted

that  if  the  rods  purported  to  be  used  had  actually  been

inserted through the vagina, it would have first destroyed the

uterus before the intestines were pulled out.  It was submitted

that  there  were  no  rods  related  injuries  in  her  uterus  and

medical  science too does not assist the prosecution in their

claim  that  the  iron  rods  were  used  as  a  weapon  for

penetration. Mr. Sharma placed reliance on:

1. the first  OT notes,  Ex.  PW-50/A that were made  following  the  first  operation  of  the prosecutrix  on  17.12.2012  and  where  the following was recorded:

“uterus,  B/L  tubes  and  ovaries  seen and healthy”

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2. the case sheet of the operation conducted on 19.12.2012,  presented  as  Ex.  PW-50/D, wherein the following was recorded: “Gynae findings

... Cx, vaginal vault and ant vaginal wall (H) ...”

3. the post-mortem report, Ex. PW-34/A, that was prepared in Mount Elizabeth Hospital, Health Science Authority, Singapore, by the Autopsy  doctor,  Dr.  Paul  Chui  on 29.12.2012  and  where  the  following  was recorded: “Uterus, Tubes and Ovaries Uterus,  tubes and ovaries  were present in their  normal  anatomical  positions.  The uterus measured 8cm x 5cm x 3.5cm. Thin fibrinopurulent  adhesions  were  present  on the serosal  surfaces of  the uterus and the adnexae. Cervix appeared normal and the os was closed. There were no cervical erosions and no haemorrhages  on the  intra-vaginal aspect  of  the  cervix.  Cut  sections  showed thin endometrium and normal myometrium. Tubes  were  normal.  Both  ovaries  were normal in size. Cut sections of both ovaries showed corpus lutea,  the  largest  of  which was present in the right ovary.”

The  learned  counsel  for  the  appellants  submit  that

that  if  the  doctors  in  the  surgery  team did  not  find  the

uterus damaged, then it cannot be claimed that the rod was

inserted in her private parts and intestines were pulled out.

202. The  aforesaid  submission  can  be  singularly

rejected without much discussion on the foundation that a

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question to that effect was not put to the doctors in their

respective  cross-examinations.  However,  instead  of

summary rejection, we shall deal with it for the sake of our

satisfaction and also to meet the contention.  While it may

be  so  that  the  uterus,  tubes  and  the  cervix  were  not

damaged, that does not mean that the intestines could not

have been damaged as they have been.  It stands to reason

based on common understanding and medical  science  to

allay this contention. First, it is nowhere the stance that the

rod was inserted only through the vagina. The prosecutrix

herself had stated in her dying declarations that she was

raped through the vagina as also the anus, Ex. PW-27/A.

The  anus  is  directly  connected  to  the  intestines  via  the

rectum and, thus, deep penetration by use of a rod or other

long  object  could  have  caused  injuries  to  the

bowels/intestines.  

203. To  appreciate  the  above  contention,  it  is

necessary to understand the anatomy and position of the

uterus.  We may  profitably  refer  to  the  following  excerpts

from  ‘Gray’s Anatomy: Descriptive and Applied’,  34th

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Edn.  [Orient  Longman Publication]  at  pages  1572  and

1579:

“THE UTERUS: The uterus, or womb, is a hollow, thick-walled,  muscular  organ  situated  in  the lesser pelvis between the urinary bladder in front and the rectum behind. Into its upper part the uterine tubes open one on each side, while below, its cavity communicates with that of the vagina. When the  ova  are  discharged from the  ovaries, they are carried to the uterine cavity through the uterine tubes. If an ovum be fertilized it embeds itself in the uterine wall and is normally retained in  the  uterus  until  prenatal  development  is completed, the uterus undergoing changes in size and structure to accommodate itself to the needs of  the  growing  embryo.  After  parturition  the uterus  returns  almost  to  its  former  condition, though it  is somewhat larger than in the virgin state. For general descriptive purposes the adult virgin uterus is taken as the type form.

In the virgin state the uterus is flattened from before  backwards and is  pear-shaped,  with  the narrow end directed downwards and backwards. It  lies  between the  bladder  below and in  front, and  the  sigmoid  colon  and  rectum  above  and behind, and is completely below the level of the pelvic inlet.

The  long  axis  of  the  uterus  usually  lies approximately  in  the  axis  of  the  pelvic  inlet (p.440),  but  as  the  organ  is  freely  movable  its position varies with the state of distension of the bladder  and  rectum.  Except  when  much displaced by a distended bladder, it forms almost a right angle with the vagina, since the axis of the vagina correspond to the axes of the cavity and outlet of the lesser pelvis (p. 440)” (at page 1572)

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“THE  VAGINA:  The  vagina  is  a  canal  which extends from the vestibule, or cleft between the labia  minora,  to  the  uterus,  and  is  situated, behind the bladder and urethra, and in front of the rectum and anal canal; it is directed upwards and backwards, its axis forming with that of the uterus an angle of over ninety degrees, opening forwards ...” (at page 1579)

“And ‘A Fascimile: Gray’s Anatomy’ (at page 723) [Black Rose Publications]

“THE VAGINA” ............

Relations:  Its anterior surface is concave, and  in  relation  with  the  base  of  the bladder, and with the urethra. Its posterior surface  is  convex,  and  connected  to  the anterior  wall  of  the  rectum,  for  the  lower three-fourths of its extent....”

The aforesaid excerpts establish that the vagina and

uterus  are  almost  at  right  angles  to  each  other  and  the

rectum is  only  separated by a wall  of  tissue.   The pelvic

cavity as set forth in the diagram in the book supports the

same.   

204. The exhibits relating to injuries may be noted. OT

notes from 17.12.2012 and 19.12.2012 read as under:  

“OT Notes:

PW 50/B: Call received from Dr. Gaurav and Dr. Piyush at approx. 4.00 a.m. from noty OT.  Immediately reached OT and reviewed the details of internal injury (as mentioned in OT notes) the condition of the small and large bowel extremely bad  for  any  definitive  repair.   The  condition

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explained to  the mother  of  the  patient  and the police officials present.  Case discussed with Dr. S.K. Jain. Int. I/C telephonically.”

205. The operative findings which are seen from the

examination done by the Gynaecologist and the Surgeons

are:

“Perineal

• Abdominal  findings:  Rectum  is longitudinally  torn  on  anterior aspect  in  continuation  with  tear. This  tear  is  continuing  upward involving sigmoid colon descending colon which is splayed open.  The margins are edematous.  

• There are multiple longitudinal tear in the mucosa of rectosigmoid area.

• Transverse colon was also torn and gangrenous.  

• Hepatic flexure ascending colon and caecum  were  gangrenous  and multiple perforation at many places.

• Terminal  item  approximately  1½ feet  loosely  hanging  in  the abdominal  cavity.   It  was  avulsed from  its  mesentery  and  was nonviable.  

• Rest  of  small  bowel  was nonenlistend  with  only  patens  of mucosa at places and border of the mesentery  was  contused.   This contused mesentery border initially appeared  (during  first  surgery)  as contused small bowel.

• Jejunostomy  stoma  was gangrenous for approximately 2 cm.

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• Stomach  and  duodenum  was distended but healthy.

Surgical Procedure:

• Resection  of  gangrenous  terminal ileum,  caecum,  appendix, ascending  colon,  hepatic  flexure and transverse colon was done.

• Resection of necrotic jejunal stoma with  closure  of  duodenojejunal flexure in two layers by 3-0 viaeny.  

• Diverting  lateral  tube dudoenostomy  (with  18F  Folley’s catheter)  brought  through  right flank.  

• Tube  gastrostomy  was  added  as another  decompressive  measures (28  size  apotere  tube  was  used) Tube gastrostomy was brought and from previous jejunostomy site.

• Abdominal drain placed in pelvis. • Rectal sheath closed by using No. 1

prolene interrupted sutures. • Skin closed by using 1-0 nylone.  • Perineal  wound  packed  with

Betadine soaked gauze piece.  • T-Bandage applied  • ASD done for abdominal wound. • Patient tolerated procedure and was

shifted back to ICU-I.

Post OP Advise

1. NPO 2. CRTA 3. IVF as per CVP and output by ICU team. 4. Injection  menopenum  Limezolid  to  be

continued as before. 5. Injection metronidazole 100ml IV TDS. 6. Injection Pantoprozole 20 mg IV OD 7. Strict I/O charting.

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8. Rest of the treatment as advised by ICU team.”

206.  From the nature of the injuries noted in the OT

Notes,  the  rectum was longitudinally  torn and transverse

colon  was  torn.   From  the  Post-Mortem  Certificate,  the

uterus was found in position (no injuries to uterus). If the

rod was inserted in the vagina,  having regard to the fact

that the injury within the vagina was only in the posterior

surface, it indicates that the rod was pushed inside with a

downward force and not upward (which could have resulted

in injury to the uterus)  and it  perhaps tunnelled its  way

through the vagina into the rectal  cavity and the bowels.

Therefore, merely because no injuries to the uterus of the

victim were noticed,  that  does not lead to the conclusion

that iron rod was not used. Thus, the submission that has

been  raised  with  immense  enthusiasm  and  ambition  to

create a concavity in the case of  the prosecution on this

score deserves to be repelled and we do so.  

Analysis of evidence pertaining to DNA

207. Having  dealt  with  the  aspect  pertaining  to

insertion  of  rod,  it  is  apposite  to  advert  to  the  medical

evidence and post mortem report.  We have, while dealing

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with  other  aspects,  referred  to  certain  aspects  including

DNA analysis of medical evidence but the same requires to

be critically dealt with as the prosecution has placed hevy

reliance upon it.   

208. DNA  is  the  abbreviation  of  Deoxyribo  Nucleic

Acid. It is the basic genetic material in all human body cells.

It is not contained in red blood corpuscles. It is, however,

present in white corpuscles. It carries the genetic code. DNA

structure determines human character, behaviour and body

characteristics.  DNA profiles are encrypted sets of numbers

that reflect a person’s DNA makeup which, in forensics, is

used to identify human beings. DNA is a complex molecule.

It has a double helix structure which can be compared with

a twisted rope ‘ladder’.

209. The nature and characteristics of DNA had been

succinctly explained by Lord Justice Phillips in  Regina v.

Alan James Doheny & Gary Adams83.  In the above case,

the accused were convicted relying on results obtained by

comparing DNA profiles  obtained from a stain left  at  the

scene of the crime with DNA profiles obtained from a sample

83  1997 (1) Criminal Appeal Reports 369

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of  blood provided by the appellant.  In the above context,

with regard to DNA, the following was stated by Lord Justice

Phillips:

“Deoxyribonucleic acid, or DNA, consists of long ribbon-like  molecules,  the  chromosomes,  46  of which lie tightly coiled in nearly every cell of the body. These chromosomes – 23 provided from the mother  and  23  from  the  father  at  conception, form the genetic blueprint of the body. Different sections  of  DNA  have  different  identifiable  and discrete characteristics. When a criminal leaves a stain of blood or semen at the scene of the crime it may prove possible to extract from that crime stain  sufficient  sections  of  DNA  to  enable  a comparison to be made with the same sections extracted from a sample of blood provided by the suspect.  This  process is  complex and we could not hope to describe it more clearly or succintly than did  Lord  Taylor  C.J.  in  the  case  of  Deen (transcript:December  21,  1993),  so  we  shall gratefully adopt his description.

"The process of DNA profiling starts with DNA being extracted from the crime stain and also from  a  sample  taken  from  the  suspect.  In each case the DNA is cut into smaller lengths by specific enzymes. The fragments produced are sorted according to size by a process of electrophoresis.  This  involves  placing  the fragments  in  a  gel  and  drawing  them electromagnetically along a track through the gel.  The  fragments  with  smaller  molecular weight travel  further than the heavier  ones. The pattern thus created is transferred from the  gel  onto  a  membrane.  Radioactive  DNA probes,  taken  from  elsewhere,  which  bind with  the  sequences  of  most  interest  in  the sample  DNA  are  then  applied.  After  the

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excess  of  the  DNA probe  is  washed off,  an X-ray  film  is  placed  over  the  membrane  to record  the  band  pattern.  This  produces  an auto radiograph which can be photographed. When the  crime stain DNA and the  sample DNA  from  the  suspect  have  been  run  in separate tracks through the gel, the resultant auto-radiographs can be compared. The two DNA profiles can then be said either to match or not.””

210. In  the  United  States,  in  an early  case  Frye v.

United States84, it was laid down that scientific evidence is

admissible  only  if  the  principle  on  which  it  is  based  is

substantially established to have general acceptance in the

field to which it belonged.  The US Supreme Court reversed

the  above  formulation  in  Daubert  v.  Merrell  Dow

Pharmaceuticals, Inc.85 stating thus:

“11. Although  the  Frye  decision  itself  focused exclusively on “novel” scientific techniques, we do not read the requirements of Rule 702 to apply specially  or  exclusively  to  unconventional evidence. Of course, well-established propositions are less likely to be challenged than those that are novel,  and they are more handily defended. Indeed, theories that are so firmly established as to have attained the status of scientific law, such as  the  laws  of  thermodynamics,  properly  are subject  to  judicial  notice  under  Fed.Rule Evid.201.

84  54 App. D.C. 46 (1923) 85  113 S.CT. 2786 (1993)

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13. This  is  not  to  say  that  judicial interpretation,  as  opposed  to  adjudicative  fact finding,  does  not  share  basic  characteristics  of the scientific endeavor: “The work of a judge is in one sense enduring and in another ephemeral… In the endless process of  testing and retesting, there is a constant rejection of the dross and a constant retention of whatever is pure and sound and fine.” B.Cardozo, The nature of the Judicial Process 178, 179 (1921).”

211. The principle was summarized by Blackmun, J.,

as follows:

“To  summarize:  “general  acceptance”  is  not  a necessary  precondition  to  the  admissibility  of scientific  evidence  under  the  Federal  Rules  of Evidence,  but  the  Rules  of  Evidence—especially Rule 702—do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.  Pertinent  evidence  based on scientifically valid principles will satisfy those demands.

The inquiries of the District Court and the Court  of  Appeals  focused almost  exclusively  on “general  acceptance,”  as  gauged  by  publication and  the  decisions  of  other  courts.  Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion.”

212. After the above judgment, the DNA Test has been

frequently  applied  in  the  United  States  of  America.  In

District Attorney’s Office for the Third Judicial District

et al. v. William G. Osborne86, Chief Justice Roberts of the

86  129 Supreme Court Reporter 2308

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Supreme Court of United States, while referring to the DNA

Test, stated as follows:

“DNA testing has an unparalleled ability both to exonerate  the wrongly convicted and to identify the  guilty.  It  has  the  potential  to  significantly improve  both  the  criminal  justice  system  and police  investigative  practices.  The  Federal Government and the States have recognized this, and have developed special approaches to ensure that  this  evidentiary  tool  can  be  effectively incorporated  into  established  criminal procedure-usually  but  not  always  through legislation.

… … ….

Modern  DNA  testing  can  provide  powerful new  evidence  unlike  anything  known  before. Since its first use in criminal investigations in the mid-1980s,  there  have  been  several  major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether  a  biological  tissue  matches  a  suspect with  near  certainty.  While  of  course  many criminal trials proceed without any forensic and scientific  testing  at  all,  there  is  no  technology comparable to DNA testing for matching tissues when such evidence is at issue.”

213. DNA technology as a part of Forensic Science and

scientific  discipline  not  only  provides  guidance  to

investigation  but  also  supplies  the  Court  accrued

information about the tending features of  identification of

criminals.  The  recent  advancement  in  modern  biological

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research  has  regularized  Forensic  Science  resulting  in

radical help in the administration of justice. In our country

also like several other developed and developing countries,

DNA evidence is being increasingly relied upon by courts.

After the amendment in the Criminal Procedure Code by the

insertion of Section 53A by Act 25 of 2005, DNA profiling

has now become a part of the statutory scheme. Section 53A

relates to the examination of a person accused of rape by a

medical practitioner.

214. Similarly, under Section 164A inserted by Act 25

of 2005, for medical examination of the victim of rape, the

description of material taken from the person of the woman

for DNA profiling is  must.  Section 53A sub-section (2)  as

well as Section 164(A) sub-section (2) are to the following

effect:

“Section 53A.  Examination of person accused of rape by Medical Practitioner.-

(1) … … … …

(2) The registered medical practitioner conducting such examination shall,  without delay,  examine such  person  and  prepare  a  report  of  his examination  giving  the  following  particulars, namely:-

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(i) the name and address of the accused  and  of  the  person by whom he was brought,  

(ii) the age of the accused, (iii) marks  of  injury,  if  any,  on

the person of the accused,  (iv) the  description  of  material

taken from the person of the accused  for  DNA  profiling, and  

(v) other material particulars in reasonable detail.

Section  164A.  Medical  Examination  of  the victim of rape.-

(1) … … … …

(2)  The  registered  medical  practitioner,  to whom such woman is  sent,  shall,  without delay,  examine  her  person  and  prepare  a report  of  his  examination  giving  the following particulars, namely:-

(i) the  name  and  address  of  the woman  and  of  the  person  by whom she was brought;

(ii)the age of the woman;

(iii) the  description  of  material taken  from  the  person  of  the woman for DNA profiling;

(iv) marks  of  injury,  if  any,  on the person of the woman;

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail.”

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215. This Court had the occasion to consider various

aspects of DNA profiling and DNA reports. K.T. Thomas, J.

in  Kamti  Devi  (Smt.)  and  another  v.  Poshi  Ram87,

observed:

“10. We may remember that Section 112 of the Evidence  Act  was  enacted  at  a  time  when  the modern  scientific  advancements  with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of  the legislature.  The result  of  a  genuine DNA test is said to be scientifically accurate. …”

216. In  Pantangi  Balarama  Venkata  Ganesh  v.

State  of  Andhra  Pradesh88, a  two-Judge  Bench had

explained as to what is DNA in the following manner:

“41. Submission of Mr Sachar that the report of DNA  should  not  be  relied  upon,  cannot  be accepted. What is DNA? It means:

“Deoxyribonucleic acid, which is found in the chromosomes of the cells of living beings is the blueprint  of  an  individual.  DNA  decides  the characteristics  of  the  person  such  as  the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting, identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred per cent precise, experts opine.”

87  (2001) 5 SCC 311  88  (2009) 14 SCC 607

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There cannot be any doubt whatsoever that there is  a  need  of  quality  control.  Precautions  are required to be taken to ensure preparation of high molecular weight DNA, complete digestion of the samples  with  appropriate  enzymes,  and  perfect transfer  and hybridization of  the  blot  to  obtain distinct  bands  with  appropriate  control.  (See article  of  Lalji  Singh,  Centre  for  Cellular  and Molecular  Biology,  Hyderabad  in  DNA  profiling and  its  applications.)  But  in  this  case  there  is nothing to show that such precautions were not taken.

42.  Indisputably,  the evidence of  the experts  is admissible in evidence in terms of Section 45 of the Evidence Act, 1872. In cross-examination, PW 46 had stated as under:

“If  the  DNA fingerprint  of  a  person  matches with that of a sample, it means that the sample has  come  from  that  person  only.  The probability  of  two  persons  except  identical twins  having  the  same  DNA  fingerprint  is around 1 in 30 billion world population.””

217. In  Santosh  Kumar  Singh  v.  State  Through

CBI89, which was a case of a young girl who was raped and

murdered, the DNA reports were relied upon by the High

Court which were approved by this Court and it was held

thus:

“71. We feel that the trial court was not justified in rejecting the DNA report,  as nothing adverse could be pointed out against the two experts who had submitted it. We must, therefore, accept the DNA report  as  being  scientifically  accurate  and

89  (2010) 9 SCC 747

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an exact science as held by this Court in  Kamti Devi  v.  Poshi  Ram (supra).  In arriving  at  its conclusions the trial court was also influenced by the fact that the semen swabs and slides and the blood samples of the appellant had not been kept in proper custody and had been tampered with, as already indicated above.  We are of the opinion that  the trial  court  was in  error  on this  score. We, accordingly, endorse the conclusions of the High Court on Circumstance 9.”

218.  In  Inspector  of  Police,  Tamil  Nadu  v.  John

David90,  a  young  boy  studying  in  MBBS  Course  was

brutally murdered by his senior. The torso and head were

recovered from different places which were identified by the

father of  the deceased.  For confirming the said facts,  the

blood  samples  of  the  father  and  mother  of  the  deceased

were taken which were subject to DNA test. From the DNA,

the identification of the deceased was proved. Paragraph 60

of the decision is reproduced below:

“60.  … The said fact was also proved from the DNA  test  conducted  by  PW  77.  PW  77  had compared  the  tissues  taken  from  the  severed head, torso and limbs and on scientific analysis he has found that  the same gene found in the blood of PW1 and Baby Ponnusamy was found in the recovered parts of the body and that therefore they should belong to the only missing son of PW 1.”

90  (2011) 5 SCC 509

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219.  In  Krishan  Kumar  Malik  v.  State  of

Haryana91, in a gang rape case when the prosecution did

not conduct DNA test or analysis and matching of semen of

the  appellant-accused  with  that  found  on  the

undergarments of the prosecutrix, this Court held that after

the incorporation of Section 53-A in CrPC, it has become

necessary for the prosecution to go in for DNA test in such

type of cases. The relevant paragraph is reproduced below:

“44. Now, after the incorporation of Section 53-A in  the  Cr.P.C  w.e.f  23.06.2006,  brought  to  our notice by the learned counsel for the respondent State,  it  has  become  necessary  for  the prosecution to go in for DNA test in such type of cases,  facilitating  the  prosecution  to  prove  its case  against  the  accused.  Prior  to  2006,  even without the aforesaid specific provision in CrPC the prosecution could have still  restored to this procedure of getting the DNA test or analysis and matching  of  semen  of  the  appellant  with  that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences.”

220. In  Surendra  Koli  v.  State  of  Uttar  Pradesh

and others92, the  appellant,  a  serial  killer,  was awarded

death  sentence  which  was  confirmed  by  the  High  Court.

While confirming the death sentence, this Court relied on

91  (2011) 7 SCC 130 92  (2011) 4 SCC 80

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the result of the DNA test conducted on the part of the body

of the deceased girl. Para  12 is reproduced below:- “12. The DNA test of Rimpa by CDFD, a pioneer institute in Hyderabad matched with that of blood of her parents and brother. The doctors at AIIMS have put  the  parts  of  the  deceased girls  which have  been  recovered  by  the  doctors  of  AIIMS together.   These  bodies have been recovered in the  presence  of  the  doctors  of  AIIMS  at  the pointing out by the accused Surendra Koli. Thus, recovery  is  admissible  under  Section  27  of  the Evidence Act.”

221. In  Mohammed Ajmal Mohammad Amir Kasab

alias  Abu  Mujahid  v.  State  of  Maharashtra93, the

accused was awarded death sentence on charges of killing

large number of innocent persons on 26th November, 2008

at  Bombay.  The  accused  with  others  had  come  from

Pakistan  using  a  boat  ‘Kuber’  and  several  articles  were

recovered  from ‘Kuber’.   The  stains  of  sweat,  saliva  and

other bodily secretions on those articles were subjected to

DNA test and the DNA test matched with several accused.  

The Court observed: “333.  It  is  seen  above  that  among  the  articles recovered from Kuber were a number of blankets, shawls  and  many  other  items  of  clothing.  The stains of sweat, saliva and other bodily secretions on those articles were subjected to DNA profiling and,  excepting  Imran Babar  (deceased  Accused 2),  Abdul  Rahman Bada  (deceased  Accused  5), Fahadullah  (deceased  Accused  7)  and  Shoaib

93  (2012) 9 SCC 1

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(deceased Accused 9), the rest of six accused were connected  with  various  articles  found  and recovered from the  Kuber.  The appellant’s  DNA matched  the  DNA  profile  from  a  sweat  stain detected on one of the jackets. A chart showing the matching of the DNA of the different accused with DNA profiles from stains on different articles found and recovered from the  Kuber is annexed at the end of the judgment as Schedule III.”

222. In  Sandeep  v.  State  of  Uttar  Pradesh94,  the

facts related to the murder of pregnant paramour/girlfriend

and   unborn  child  of  the  accused.   The  DNA  report

confirmed that the appellant was the father of the unborn

child.  The  Court,  relying  on  the  DNA  report,  stated  as

follows:

“67. In the light of the said expert evidence of the Junior Scientific Officer it is too late in the day for the appellant Sandeep to contend that improper preservation of the foetus would have resulted in a  wrong  report  to  the  effect  that  the  accused Sandeep was found to be the biological father of the foetus received from the deceased Jyoti.  As the  said  submission  is  not  supported  by  any relevant material on record and as the appellant was not able to substantiate the said argument with  any  other  supporting  material,  we  do  not find any substance in the said submission. The circumstance,  namely,  the  report  of  DNA  in having concluded that accused Sandeep was the biological father of  the recovered foetus of Jyoti was one other relevant circumstance to prove the guilt of the said accused.”

94 (2012) 6 SCC 107

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223. In Rajkumar v. State of Madhya Pradesh95, the

Court was dealing with a case of rape and murder of a 14

year old girl.  The DNA report established the presence of

semen  of  the  appellant  in  the  vaginal  swab  of  the

prosecutrix. The conviction was recorded relying on the DNA

report. In the said context, the following was stated:

“8.  The  deceased  was  14  years  of  age  and  a student in VIth standard which was proved from the  school  register  and  the  statement  of  her father  Iknis  Jojo  (PW1).  Her  age has  also  been mentioned  in  the  FIR  as  14  years.  So  far  as medical evidence is concerned, it was mentioned that the deceased prosecutrix was about 16 years of  age.  So  far  as  the  analysis  report  of  the material sent and the DNA report is concerned, it revealed that semen of the appellant was found on the vaginal swab of the deceased. The clothes of  the  deceased  were  also  found  having appellant’s  semen  spots.  The  hair  which  were found near the place of occurrence were found to be that of the appellant.”

224. In Nandlal Wasudeo Badwaik v. Lata Nandlal

Badwaik and another96, the appellant, father of the child

born to his wife, questioned the paternity of the child on the

ground that she did not stay with him for the last two years.

The Court directed for DNA test.   The DNA result opined

that the appellant was not the biological father of the child.

95 (2014) 5 SCC 353 96 (2014) 2 SCC 576

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The Court also had the occasion to consider Section 112 of

the  Evidence  Act  which  raises  a  presumption  that  birth

during marriage is conclusive proof of legitimacy. The Court

relied  on  the  DNA  test  holding  the  DNA  test  to  be

scientifically  accurate.  The  pertinent  observations  are

extracted below:

“19. The husband’s plea that he had no access to the  wife  when  the  child  was  begotten  stands proved by the DNA test report and in the face of it,  we  cannot  compel  the  appellant  to  bear  the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent  child  may  not  be  bastardised as  the marriage  between  her  mother  and  father  was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice.

20.  As  regards  the  authority  of  this  Court  in Kamti Devi, this Court on appreciation of evidence came to the conclusion that the husband had no opportunity whatsoever to have liaison with the wife. There was no DNA test held in the case. In the  said  background  i.e.  non-access  of  the husband  to  the  wife,  this  Court  held  that  the result of DNA test “is not enough to escape from the conclusiveness of Section 112 of the Act.” The judgment  has  to  be  understood  in  the  factual scenario of the said case. The said judgment has not held that DNA test is to be ignored. In fact, this Court has taken note of  the fact that DNA test is scientifically accurate.  We hasten to add that in none of the cases referred to above, this Court confronted with a situation in which a DNA

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test  report,  in  fact,  was  available  and  was  in conflict with the presumption of conclusive proof of legitimacy of the child under Section 112 of the Evidence Act. In view of what we have observed above,  these  judgments  in  no way advance the case of the respondents.”

From the aforesaid authorities,  it  is  quite  clear  that

DNA report deserves to be accepted unless it is absolutely

dented  and  for  non-acceptance  of  the  same,  it  is  to  be

established that there had been no quality control or quality

assurance.   If  the  sampling  is  proper  and  if  there  is  no

evidence as to tampering of samples, the DNA test report is

to be accepted.

225. In  order  to  establish  a  clear  link  between  the

accused persons and the incident at hand, the prosecution

has also adduced scientific  evidence in the form of  DNA,

fingerprint and bite mark analysis.     

226. Various  samples,  for  the  purpose  of  DNA

profiling, were lifted from the person of the prosecutrix; the

informant; the accused, their clothes/ articles; the dumping

spot; the iron rods; the ashes of partly burnt clothes; as well

as  from  the  offending  bus.  PW-45,  Dr.  B.K.  Mohapatra,

analysed  the  said  DNA profiles  and submitted  his  report

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thereof. In his report, he concluded that the samples were

authentic and capable of establishing the identities of the

persons concerned beyond reasonable doubt.

227. After  establishing  the  identities  of  each  of  the

accused persons, the informant and the prosecutrix through

DNA  analysis,  the  DNA  profiles  generated  from  the

remaining samples, where the identity of biological material

found thereon needed to be ascertained, were matched with

the DNA profiles of the prosecutrix, the informant and the

accused,  generated earlier  from known samples.  Such an

analysis  cogently  linked  each  of  the  accused  with  the

victims as  also  with  the  crime scene.  A  summary of  the

findings  in  the  report  submitted  by  PW-45,  Dr.  B.K.

Mohapatra, is as under:  

“S.No. Accused DNA EVIDENCE  1 Ram Singh Rectal  swab  from  the  prosecutrix  contained

DNA  of  male  origin,  which  was  found consistent  with  the  DNA  developed  from  the blood sample of this accused.

DNA  profile  developed  from  the  blood  stains from the underwear, T-shirt and slippers of this accused was found consistent with the DNA of the prosecutrix.

2 Mukesh DNA  profile  developed  from  the  blood  stains from  the  pants,  T-shirt  and  jacket  of  this accused was found consistent with the DNA of the prosecutrix.

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3 Akshay Breast swab of the prosecutrix contained DNA of male origin which was found consistent with the DNA of this accused.

DNA  profile  developed  from  the  blood  stains from  the  jeans  of  this  accused  was  found consistent with the DNA of the prosecutrix.

4 Vinay DNA  profile  developed  from  the  blood  stains from the underwear, jacket and slippers of this accused was found consistent with the DNA of the prosecutrix.

5 Pawan DNA  profile  developed  from  the  blood  stains from the sweater and shoes and slippers of this accused was found consistent with the DNA of the prosecutrix.”

228. Further, a summary of the DNA analysis of the

biological samples lifted from the material objects such as

the bus, the iron rods, and the ash and unburnt pieces of

clothes is also worth producing here:

“Serial No.

Identity of the victim

Findings of DNA Analysis

1. Informant i. The  DNA  profile  developed  from

burnt  clothes  pieces  was found to be  of  male  origin  and  was consistent  with  the  DNA profile  of complainant.

ii. The bunch of DNA profile developed from hair and blood stained pieces of paper recovered from the bus was found  consistent  with  the  DNA profile of complainant.

iii. The  DNA  profile  developed  from blood stained dried leaves collected from  the  place  where  both  the victims were thrown matched with the DNA profile of complainant.

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2. Prosecutrix i. The  DNA  profile  developed

from  blood  stains  from  both  the iron  rods  recovered  at  the instance  of  accused  Ram  Singh from bus was of female origin and was consistent with the DNA profile of prosecutrix.

ii. The  DNA  profile  developed  from blood  stains  from curtains  of  the bus matched with the DNA profile of prosecutrix.

iii. The  DNA  profile  developed  from blood stains from seat covers was found  consistent  with  the  DNA profile of prosecutrix.

iv. DNA  profile  developed  from blood stains from the bunch of the hair recovered  from  floor  of  the  bus below sixth row seat, blood stains prepared from the roof of the bus near  back  gate,  blood  stains prepared from the floor of the bus near back gate, blood stains taken from side of back stairs of the bus, and  blood  stains  taken  from  the inner side of the back door of the bus was found consistent with the DNA profile of prosecutrix.

229. PW-45, Dr. B.K. Mohapatra, has clearly testified

in his cross-examination that all the experiments conducted

by  him  confirmed  to  the  guidelines  and  methodology

documented  in  the  Working  Procedure  Manuals  of  the

laboratory which have been validated and recommended for

use in the laboratory. He further added that once a DNA

profile is generated, its accuracy is 100%. The trial  court

and the High Court have consistently noted that the counsel

for  the  defence  did  not  raise  any  substantial  ground  to

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challenge the DNA report during the cross-examination of

PW-45. In such circumstances, there is no reason to declare

the  DNA  report  as  inaccurate,  especially  when  it  clearly

links the accused persons with the incident.  

230. Mr.  Sharma,  learned  counsel  appearing  for

appellants - Mukesh and Pawan Kumar Gupta, submitted

that in the insant case, the DNA test cannot be treated to be

accurate, for there was blood transfusion as the prosecutrix

required blood and when there is mixing of blood, the DNA

profiling is likely to differ.  It is seemly to note, nothing had

been  put  to  the  expert  in  his  cross-examination  in  this

regard. As the authorities relating to DNA would show, if the

quality  control  is  maintained,  it  is  treated  to  be  quite

accurate  and  as  the  same  has  been  established,  we  are

compelled to repel the said submission of Mr. Sharma.    

The evidence relating to finger print analysis:

231. Next aspect that is required to be adverted is the

evidence of fingerprint analysis adduced by the prosecution

to establish the identity of the accused persons. By virtue of

the finger print analysis, the prosecution has tried mainly to

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establish the presence of the accused in the offending bus.

On 17.12.2012 and 18.12.2012, a team of experts from the

CFSL had lifted  chance  finger  prints  from the  concerned

bus, Ex.P-1, at Thyagraj Stadium. On 28.12.2012, PW-78,

Inspector Anil Sharma of P.S. Vasant Vihar, the then S.H.O.

of Police Station Vasant Vihar, requested the Director, CFSL

for  taking  digital  palm  prints  and  foot  prints  of  all  the

accused persons  vide his letter  Ex.PW-46/C. Pursuant to

the said request made by PW-78, Inspector Anil  Sharma,

the CFSL on 31.12.2012 took the finger/palm prints and

foot  prints  of  the  accused  persons  at  Tihar  Jail.  After

comparing the chance prints lifted from the bus with the

finger prints/palm prints and foot prints of all the accused

persons,  PW-46,  Shri  A.D.  Shah,  Senior  Scientific  Officer

(Finger  Prints),  CFSL,  CBI,  submitted  his  report,

Ex.PW-46/D.

232. As per the report, Ex.PW-46/D, the result of the

aforesaid  examination  of  the  Finger  Print  Division  of  the

CFSL, CBI, New Delhi was that the chance prints of accused

Vinay  Sharma were  found  on  the  bus  in  question.  The

relevant portion of the report is as under:

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“RESULT OF EXAMINATION:

1. The chance print marked as Q.1 is identical with left  palmprint  specimen  of  Vinay  Sharma  S/o Sh.Hari Ram Sharma marked here as LPS-28 on the slip  marked  here  as  S.28 (Matching  ridge characteristics  have  been  found  in  their  relative positions  in  the  chance  palmprint  and  specimen palm print. This forms the basis of the opinion that these prints are identical. Eight of them have been marked with projected red lines with their detailed description are placed at Annexure-1)

II. The chance print marked as Q.4 is identical with right  thumb  impression  of  Vinay  Sharma  S/o Sh.Hari Ram Sharma marked here as RTS-23 on the slip  marked  here  as  S.23  (Matching  ridge characteristics  have  been  found  in  their  relative positions in the chance print and specimen finger print. This forms the basis of the opinion that these prints  are  identical.  Eight  of  them  have  been marked with projected red lines with their detailed description are placed at Annexure-2).”

The above report incontrovertibly proves that accused Vinay

was present in the bus at the time of the incident.  Be it

noted, the other chance prints were found to be unfit for

comparison or different from specimen print.  

The Odontology report

233. Now, we shall analyse the Odontology report. In

today’s world,  Odontology is a branch of forensic science

in which dental knowledge is applied to assist the criminal

justice delivery system. S. Keiser-Nielsen, an authority on

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Forensic Odontology defines the basic concept of Forensic

Odontology in the following words:

“A. Forensic odontology is that branch of odontology which in the interests of justice deals  with  the  proper  handling  and examination of  dental  evidence  and with the proper evaluation and presentation of dental findings. Only a dentist can handle and  examine  dental  evidence  with  any degree of accuracy; therefore, this field is above all a dental field.”

234. Professor  Neilsen,  elaborating  on  Forensic

Odontology, further states:

“B. There  are  three  reasons  for considering  forensic  odontology  a well-defined and more or less independent subject:1) it  has objectives different from those  at  which  conventional  dental education  aims;  2)  forensic  dental  work requires investigations and considerations different  from those required in ordinary dental  practice;  and  3)  forensic  dental reports  and  statements  have  to  be presented in accordance with certain legal formalities in order to be of value to those requesting aid.

The  area  of  forensic  odontology consists of three major fields of activity:1) the examination and evaluation of injuries to  teeth,  jaws,  and  oral  tissues  from various causes: 2) the examination of bite marks  with  a  view  to  the  subsequent elimination or possible identification of a suspect  as  the  originator;  and  3)  the examination  of  dental  remains  (whether fragmentary or complete, and including all

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types of dental restoration) from unknown persons  or  bodies  for  the  purpose  of identification.”

235. In  the  instant  case,  the  prosecution  has  relied

upon the odontology report, i.e., bite mark analysis report

prepared  by  PW-71,  Dr.  Ashith  B.  Acharya,  to  link  the

incident with the accused persons. The Odontology report

links  accused  Ram  Singh  and  accused  Akshay  with  the

crime in question.  

236. Dr.  K.S.  Narayan  Reddy, in  his  book,  Medical

Jurisprudence  and  Toxicology  (Law,  Practice  and

Procedure), Third Edition, 2010, Chapter VIII page 268, has

extensively  dealt  with  human  bites,  their  patterns,  the

manner  in  which they  should  be  lifted  with  a  swab and

moistened with sterile water and the manner in which such

swabs  need  to  be  handled  is  delineated  along  with  their

usefulness  in  identification.   The  High  Court  has  also

referred to the same. It is as follows:

“They  are  useful  in  identification  because  the alignment of  teeth is peculiar  to the individual. Bite marks may be found in materials left at the place  of  crime  e.g.,  foodstuffs,  such as  cheese, bread,  butter,  fruit,  or  in  humans  involved  in assaults, when either the victim or the accused

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may  show  the  marks,  usually  on  the  hands, fingers, forearms, nose and ears.”

237. After  making  the  aforesaid  observations,  the

author dwells upon the various methods used for bite mark

analysis including the photographic method, which method

was utilized in the instant case. The photographic method is

described as under:

“Photographic  method:  The  bite  mark  is  fully photographed with  two  scales  at  right  angle  to one another in the horizontal plane. Photographs of  the teeth are taken by using special  mirrors which allow the inclusion of all the teeth in the upper  or  lower  jaws  in  one  photograph.  The photographs  of  the  teeth  are  matched  with photographs or tracings of the teeth. Tracings can be made from positive casts of a bite impression, inking the cutting edges of the front teeth. These are  transferred  to  transparent  sheets,  and superimposed over the photographs, or a negative photograph of the teeth is superimposed over the positive  photograph  of  the  bite.  Exclusion  is easier than positive matching.”   

238. In  the  present  case,  the  photographs  of  bite

marks taken by PW-66, Shri  Asghar Hussein, of  different

parts  of  the  body  of  the  prosecutrix  were  examined  by

PW-71,  Dr.  Ashith B.  Acharya.  The photographs depicted

the bite marks on the body of the prosecutrix. The said bite

marks found on the body of the victim were compared with

the dental models of the suspects. The analysis showed that

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at  least  three  bite  marks  were  caused  by  accused  Ram

Singh, whereas one bite mark has been identified to have

been  most  likely  caused  by  accused  Akshay.  An  excerpt

from the  report,  Ex.  PW-  71/C,  of  PW-71,  Dr.  Ashith  B.

Acharya,  has  been extracted by  the  High Court.  It  reads

thus:

“........  There  is  absence  of  any  unexplainable discrepancies  between  the  bite  marks  on Photograph No. 4 and the biting surfaces of one of the accused person's teeth, namely Ram Singh. Therefore,  there is  reasonable  medical  certainty that  the  teeth  on  the  dental  models  of  the accused  person  named  Ram  Singh  caused  the bite marks visible on Photograph No 4; also the bite  marks  on  Photograph  Nos.1  and  2  show some degree of specificity to this accused person's teeth  by  virtue  of  a  sufficient  number  of concordant points, including some corresponding unconventional/  individual  characteristics. Therefore, the teeth on the dental models of the accused  person  with  the  name  Ram  Singh probably  also  caused the  bite  marks visible  on Photograph Nos.1 and 2........

x x x x x The comparison also shows that there is a concordance in terms of general alignment and angulation of the biting surfaces of the teeth of the lower jaw on the dental models of the accused person  with  the  name  Akshay  and  the corresponding bite marks visible on Photograph No.5.  In  particular,  the  comparison  revealed concordance  between  the  biting  surface  of  the teeth on the lower jaw of the dental models of the accused person with the name Akshay and the bite mark visible on Photograph No.5 in relation to  the  rotated  left  first  incisor  whose  mesial

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surface pointed towards the tongue. Overall, the bite mark shows some degree of specificity to the accused person's teeth by virtue of a number of concordant  points,  including  one  corresponding unconventional/  individual  characteristic.  There is an absence of any unexplainable discrepancies between the bite mark and the biting surfaces of this accused person's teeth. Therefore, the teeth on the dental models of the accused person with the name Akshay probably caused the bite marks visible on Photograph No.5.”  

239. Be  it  noted,  the  present  is  a  case  where  the

victim's  body  contained  various  white  bite  marks.  Bite

mark  analysis  play  an  important  role  in  the  criminal

justice system. Advanced development of technology such

as laser scanning, scanning electron microscopy or cone

beam  computed  tomography  in  forensic  odontology  is

utilized to identify more details in bite marks and in the

individual teeth of the bite.  Unlike fingerprints and DNA,

bite  marks  lack  the  specificity  and  durability  as  the

human teeth may change over time. However, bite mark

evidence  has  other  advantages  in  the  criminal  justice

system that  links  a  specific  individual  to  the  crime  or

victim.   For  a  bite  mark  analysis,  it  must  contain

abundant information and the tooth that made the mark

must be quite distinctive.

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240. Bite marks in skin are photographed in cases

where  the  suspect  is  apprehended.  A  thorough  dental

combination is administered after dental examination of

the   suspect.  Final  comparison  of  the  details  of  the

original mark with the dentation of the suspect is done by

experts.

241. The bite marks generally include only a limited

number  of  teeth.   The  teeth  and  oral  structure  of  the

accused  are  examined  by  experts  and,  thereafter,  bite

marks are compared and reports are submitted. Forensic

Odontology is a science and the most common application

of Forensic Odontology is for the purpose of identification

of persons from their tooth structure.   

242. Forensic  Odontology  has  established  itself  as

an important and indispensable  science in  medico-legal

matters  and  expert  evidence  through  various  reports

which have been utilized by courts in the administration

of  justice.  In  the  case  at  hand,  the  report  is  wholly

credible because of matching of bite marks with the tooth

structure of the accused persons and there is no reason to

view the same with any suspicion. Learned counsel for the

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appellants would only contend that the whole thing has

been stage-managed.  We are not impressed by the said

submission, for the evidence brought on record cogently

establish  the  injuries  sustained by  the  prosecutrix  and

there is consistency between the injuries and the report.

We  are  not  inclined  to  accept  the  hypothesis  that  bite

marks have been managed.

Acceptability of the plea of alibi

243. Presently, we shall deal with the plea of alibi as

the same has been advanced with immense conviction. It is

well settled in law that when a plea of alibi is taken by an

accused, the burden is upon him to establish the same by

positive evidence after the onus as regards the presence on

the spot is established by the prosecution. In this context,

we may usefully reproduce a few paragraphs from  Binay

Kumar Singh v. State of Bihar97:

“22. We must bear in mind that an alibi is not an exception  (special  or  general)  envisaged  in  the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence  Act  that  facts  which are  inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:

97 (1997) 1 SCC 283

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‘The question is whether  A committed a crime at Calcutta on a certain date. The fact that, on that date, A was at Lahore is relevant.”

23. The Latin word alibi means ‘elsewhere’ and that  word  is  used  for  convenience  when  an accused  takes  recourse  to  a  defence  line  that when the occurrence took place he  was so far away  from  the  place  of  occurrence  that  it  is extremely  improbable  that  he  would  have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to  have  inflicted  physical  injury  to  another person,  the  burden  is  on  the  prosecution  to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused  has  adopted  the  defence  of  alibi.  The plea  of  the  accused  in  such  cases  need  be considered  only  when  the  burden  has  been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden  it  is  incumbent  on  the  accused,  who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of  occurrence.  When the presence  of  the  accused  at  the  scene  of occurrence has been established satisfactorily by the  prosecution  through  reliable  evidence, normally the court would be slow to believe any counter-evidence  to  the  effect  that  he  was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality  and of  such a  standard that  the  court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took  place,  the  accused  would,  no  doubt,  be entitled to the benefit of that reasonable doubt. For  that  purpose,  it  would  be  a  sound proposition  to  be  laid  down  that,  in  such

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circumstances,  the  burden  on  the  accused  is rather  heavy.  It  follows,  therefore,  that  strict proof is required for establishing the plea of alibi. …”

[underlining is ours]     

244. The  said  principle  has  been  reiterated  in

Gurpreet Singh v. State of Haryana98, Shaikh Sattar v.

State  of  Maharashtra99,   Jitender  Kumar v.  State  of

Haryana100 and Vijay Pal (supra).

245.  We had earlier indicated that in their Section 313

CrPC statements,  the  accused have advanced the plea of

alibi.  Accused Pawan Kumar Gupta @ Kaalu has taken the

plea of alibi stating, inter alia, that throughout the evening

of  16.12.2012 till  late  night,  he was in  the  DDA District

Park, Hauz Khas, Opposite IIT Gate, New Delhi, watching a

musical  event  organised  in  connection  with  Christmas

Celebration and that he was never in the bus,  Ex.P1, and

had not committed any offence with the prosecutrix or with

the informant.  

246. Before coming to the defence evidence led by him,

we may refer to the answers given by him in response to the

98 (2002) 8 SCC 18 99 (2010) 8 SCC 430 100 (2012) 6 SCC 204

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questions put to him in his statement under Section 313

CrPC wherein he has admitted that mobile No. 9711927157

belongs to him. He further stated that  he had consumed

liquor in the evening of 16.12.2012 and had accompanied

accused Vinay Sharma to the musical event at DDA District

Park where he took more liquor and fell unconscious and

was later brought to his house by his father and uncle. He

stated that he went out in the evening of 16.12.2012 and

saw a quarrel between accused Vinay Sharma and accused

Ram Singh (since deceased). Then he returned to his jhuggi.

After sometime, he came out of his jhuggi and saw accused

Vinay  Sharma,  his  sister,  mother  and  others  going  to  a

musical  party  and so,  he  also  went  with  them and took

more liquor in the party and even lost his mobile phone.

Strangely enough, in his supplementary statement recorded

on 16.08.2013 under Section  313 CrPC, he stated that he

was present in the said party with his family members and

friends  and  that  a  video  clip  was  prepared  by  one  Ram

Babu, DW-13, and that he does not  remember if  he had

accompanied accused Vinay Sharma to  the  said  park on

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that evening. It is in contradiction to the stand taken by him

in his earlier statement recorded under Section  313 CrPC.  

247. Accused Pawan examined his father,  DW-2, Shri

Hira Lal Ram, who deposed that on 16.12.2012 about 7:15

p.m., when he came to his house, he was informed by his

daughter  that  accused  Pawan  had  gone  to  DDA  District

Park,  Hauz Khas.  It  is  in  contradiction to  the  deposition

made by the other  defence witnesses who have said that

accused  Vinay  Sharma and  his  family  members  had  left

Ravi Dass Camp, Sector-3, R.K. Puram, New Delhi, about

8:00/8:30 p.m. and that accused Pawan had accompanied

them. Accused Pawan also said so in his initial statement

under Section 313 CrPC.  

248. DW-4, Shri Gyan Chand, the maternal uncle of

accused Pawan,  deposed that  he brought accused Pawan

Gupta @ Kaalu to the jhuggi from the DDA District Park and

saw one Ram Charan warming his hands on a bonfire just

outside his jhuggi who came and asked him about the well-

being  of  accused  Pawan.  Ram  Charan,  DW-3,  however,

deposed that about  8:30/9:00 p.m., he was sitting inside

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his jhuggi with its door open and he saw accused Pawan

being brought by his  uncle  in drunken state.  This is  yet

again  in  contradiction to  what  has  been  deposed  by  the

other  defence  witnesses  who  said  that  accused  Pawan

Gupta and accused Vinay Sharma had rather left Ravi Dass

Camp, Sector-3,  R.K.  Puram, New Delhi  about  8:00/8:30

p.m. for the DDA District Park.  

249.   DW-16, a shopkeeper of the locality, had deposed

that  he  had seen the  vehicle  of  Shri  Gyan Chand about

9:00/9:30 p.m. on 16.12.2012 when accused Pawan Gupta

was  brought  in  drunken condition  and was  taken to  his

jhuggi. Initially, he failed to mention if Shri Hira Ram was

accompanying Shri Gyan Chand.  

250. Though the  witnesses  have  also  deposed about

the  taking  away  of  accused  Pawan  by  3/4  persons  on

17.12.2012,  yet  that  plea  too  is  in  contradiction  to  the

arrest memo Ex.PW-60/A wherein the accused is stated to

have been arrested on 18.12.2012 about 1:15 p.m. at the

instance of accused Ram Singh (since deceased).  

251. Hence,  there  exist  contradictions  in  the

statements of the defence witnesses produced on behalf of

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accused Pawan Gupta (a): qua the timing when the accused

had left his jhuggi at Ravi Dass Camp on the fateful night of

16.12.2012  inasmuch  as  some  of  the  witnesses  deposed

that accused Pawan left for DDA District Park at 8:00/8:30

p.m. and  some  others  deposed  that  they  saw him being

brought to his jhuggi about 8:30/9:00 p.m.; (b) qua the fact

if DW-2 had gone with DW-1 to the park to fetch his son;

and (c) qua the fact if accused Pawan went to the park with

accused Vinay Sharma or not.  

252. Accused Akshay Kumar Singh @ Thakur, in his

statement under Section 313 CrPC, stated that he was not

in Delhi on the fateful night and that on 15.12.2012, he had

left Delhi for his village in Mahabodhi Express on the ticket

of  his  brother,  Abhay,  along  with  his  brother’s  wife  and

nephew.  He  produced  certain  witnesses  in  his  defence.

DW-11, Shri  Chavinder,  an  auto  driver  from  his  village,

deposed that he had brought accused Akshay Kumar Singh

@ Thakur and his family members from Anugrah Narayan

Railway Station,  District  Aurangabad,  Bihar  to his  native

village  Karmalahang,  P.S.  Tandwa,  in  his  own  auto  on

16.12.2012 at 10:00 a.m. It is interesting to note that he

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does not remember about any other passenger/native who

shared his auto on that day. DW-13, Sh. Raj Mohan Singh,

the  father-in-law  of  the  accused,  deposed  that  when  he

reached accused Akshay’s house, he found his son-in-law

being  implicated in  a  rape  case  allegedly  committed  on

16.12.2012.  It  probably  shows  that  DW-13 had  gone  to

meet  Akshay  Kumar  Singh  @ Thakur  only  when he  had

come to know about his implication in the rape case and

when accused Akshay Kumar Singh @ Thakur was on the

run.  It  is  an  admitted  fact  that  the  Chowkidar  of  P.S.

Tandwa had met father-in-law of the accused on 20.12.2012

and  had  informed  him  about  the  implication  of  accused

Akshay for the first time. If it was so, then DW-13, Shri Raj

Mohan,  must  have  visited  the  house  of  accused  Akshay

Kumar  Singh  @  Thakur  either  on  20.12.2012  or  on

21.12.2012.  

253. DW-12,  DW-14  and  DW-15 are  all  relatives  of

accused Akshay Kumar Singh @ Thakur and, as observed

by  both  the  courts,  they  tried  to  wriggle  him out  of  the

messy  situation,  as  is  the  natural  instinct  of  the  family

members. However, it is to be seen that during the evidence

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of DW-14, wife of accused Akshay Kumar Singh @ Thakur,

she  was  interrupted  from  answering  by  accused  Akshay

from behind on more than one occasion. Similarly, DW-15,

the  sister-in-law  of  the  accused,  who  had  allegedly

accompanied the accused to her native village, mysteriously,

was not aware as to why her husband Abhay who was to

accompany her on 15.12.2012 to the native village did not

accompany  her.  She  was  not  aware  of  the  reason  which

made her husband stay behind in Delhi. Being the wife, she

was expected to know this, at least.  

254. While weighing the plea of ‘alibi’, the same has to

be  weighed  against  the  positive  evidence  led  by  the

prosecution, i.e., not only the substantive evidence of PW-1

and  the  dying  declarations,  Ex.PW-27/A and

Ex.PW-30/D-1, but also against the scientific evidence, viz.,

the  DNA  analysis,  finger  print  analysis  and  bite  marks

analysis, the accuracy of which is scientifically acclaimed.

Considering  the  inconsistent  and  contradictory  nature  of

the evidence of ‘alibi’ led by the accused against the positive

evidence of the prosecution, including the scientific one, we

hold  that  the  accused  have  miserably  failed  to  discharge

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their burden of absolute certainty qua their plea of ‘alibi’.

The plea taken by them appears to be an afterthought and

rather may be read as an additional circumstance against

them.  

255. In response to the questions put to him in his

statement  under  Section  313  CrPC,  accused  Vinay  had

admitted that mobile No. 8285947545, Ex.DW10/1, belongs

to his mother and its SIM was lost prior to 16.12.2012 and

that on 16.12.2012, at 9:30 p.m., his friend Vipin had taken

his phone to the DDA District Park and had returned it the

next morning without SIM card and memory card.  

256. In response to question No. 221, he stated that

about 8:00/8:30 p.m., he went to see accused Ram Singh

and  he  had a  scuffle/exchange  of  fist  blow and then he

returned to his jhuggi. Thereafter, he left for musical party

with his  sister,  mother and others.  He did not say if  his

father had accompanied them. He also told that about 11:30

p.m., he had returned to his jhuggi.  

257. It  is  worthy  to  note  that  the  prosecution  had

proved the Call Detail Record, Ex.PW-22/B, of the phone of

accused  Vinay  Sharma,  having  SIM  No.  8285947545,

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admittedly in the name of his mother, Smt. Champa Devi,

but  in  the  possession  of  accused  Vinay  Sharma  in  the

evening of 16.12.2012 and  allegedly snatched by one Vipin

in the said music party and returned to him in the morning

of 17.12.2012 without SIM card and memory card. The Call

Detail Record Ex.PW-22/B does show that the accused had

been  making  calls  to  one  particular  number,  viz.,

8601274533 from 15.12.2012 till  20:19:37 of 17.12.2012.

The authenticity of the CDR is proved under Section 65-B of

the Indian Evidence Act. If the accused was not having a

SIM card in his phone No. 8285947545, then how could he

have  called  from  this  SIM  on  15.12.2012,  then  on

16.12.2012  and  in  the  morning  of  17.12.2012  till  about

8:23:42 p.m.  

258. The  accused  rather  said  that  his  SIM  and

memory card were not in his phone when it was returned by

his friend Vipin and that the phone was not with him at

9:55:21 when it registered a call for 58 seconds and when

his  location  was  found  near  IGI  Airport,  i.e.,  the  road

covered  by  the  Route  Map,  Ex.PW-80/H, where  the  bus,

Ex.P1, was moving on that night. Further, if as per accused

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Vinay Sharma he had no memory card and SIM card in his

mobile phone, then the question of making of a video clip

from his mobile phone by his friend DW-10, Shri Ram Babu,

does not arise. Even his personal search memo Ex.PW-60/D

does not show that the said mobile phone, when seized, had

any memory card in it. The intention of the accused appears

to be to wriggle himself out of explaining the receipt of call

on his mobile at 9:55 p.m. on 16.12.2012.  

259. After referring to the decision in Ram Singh and

others v. Col. Ram Singh101, the trial Court has held that

accused Vinay had miserably failed to prove the authenticity

of  the  video  clip  in  terms  of  the  above  judgment.  The

accused had failed to show if  DW-10, Ram Babu, aged 15

years, was ever competent to record the clip and how such

device was preserved. Admittedly by him, the memory card

was not in the phone when returned to him by his friend,

Vipin. It is also not shown in the seizure memo Ex.PW-60/D

that  the  mobile,  Ex.DW-10/1, was  seized  along  with

memory card.  Thus,  it  raises  a  doubt  as  to  how and by

whom this memory card was later inserted in his phone,

101  1985 (Supp.) SCC 611

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Ex.DW-10/1, and how and when the video clip was taken

and whether there was any tampering, etc. and  thus, the

compliance of Section 65-B of the Indian Evidence Act was

mandatory in these circumstances to ensure the purity of

the evidence and in its absence, it would be difficult to rely

upon such evidence.  

260. Even otherwise, in the alternative, the properties

of mobile Ex.DW-10/1 show the timing of the video clip as

8:16 p.m. of 16.12.2012 which is patently false because as

per the defence witnesses, accused Vinay Sharma with his

family had left Ravi Dass Camp at 8:00/8:30 p.m. and as

per Smt. Champa Devi, DW-5, it takes about one hour on

foot to reach the DDA District Park and, thus, even if we

believe their theory, then also accused Vinay Sharma and

accused Pawan Gupta @ Kaalu were not in the park at 8:16

p.m. on 16.12.2012.  

261. Vinay  Sharma’s  mother,  Smt.  Champa  Devi,

DW-5, deposed that her son, accused Vinay Sharma, had

gone to meet accused Ram Singh (since deceased),  about

8:00 p.m. on 16.12.2012 and he had a quarrel with Ram

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Singh, he was beaten and then the accused returned to his

jhuggi. Thereafter, accused Vinay Sharma accompanied her

to DDA District Park, Hauz Khas, Opposite IIT Gate, New

Delhi to watch a musical programme and stayed in the park

till  late  in  the  night.  His  mother  does  not  speak  if  her

husband had also accompanied her to the said DDA District

Park but DW-6 deposed that his son had returned about

8:00 p.m. after the quarrel and then they had gone to the

said DDA District Park. DW-7, Shri Kishore Kumar Bhat,

also  deposed  that  about  8:00/8:30  p.m.,  he  was  in  his

jhuggi when the father of accused Vinay Sharma with his

children  came  to  his  jhuggi  and  they  all  went  to  DDA

District Park. He has also stated that a musical programme

was organized by St. Thomas Church, Sector-2, R.K. Puram,

New Delhi, in the said DDA District Park, Hauz Khas, on

that night.  

262. DW-9, Shri Manu Sharma, deposed that he went

with accused Vinay Sharma to reason with accused Ram

Singh  (since  deceased)  but  accused  Vinay  Sharma  had

stated  that  his  brother  had  accompanied  him  to  meet

accused Ram Singh (since deceased). Further, DW-9, Manu

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Sharma,  stated  that  he  had  accompanied  accused  Vinay

Sharma to the musical event but accused Vinay Sharma did

not say so.  

263. Hence,  as  per  the  statement  of  accused  Vinay

Sharma  (under  Section  313  CrPC)  and   as  per  the

statements of the defence witnesses, accused Vinay Sharma

and his family with accused Pawan Gupta @ Kaalu had left

Ravi Dass Camp about 8:15 p.m. to 8:30 p.m. and as per

DW-5, Smt. Champa Devi, it takes about an hour to reach

the  DDA  District  Park,  Hauz  Khas,  on  foot,  so  even

according to them, they allegedly reached the park about

9:15 p.m. or 9:30 p.m. Thus, from this angle too, the video

clip showing the accused in the park on 16.12.2012 about

8:16 p.m. appears to have been tampered.  

264. PW-83, Shri  Angad  Singh,  the  Deputy  Director

(Horticulture), DDA, had deposed that no such permission

was  ever  granted  by  any  authority  to  organize  any  such

function  in  the  evening  of  16.12.2012  in  the  said  DDA

District Park, Hauz Khas, New Delhi and that no function

was ever organized in the park on 16.12.2012 by anyone.

PW-84, Father George Manimala of St. Thomas Church, as

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also  PW-85,  Brother  R.P.  Samual,  Secretary,  Ebenezer

Assembly  Church,  deposed  that  their  Church(es)  never

organized  any  musical  programme/event  in  the  DDA

District Park, Hauz Khas, in the evening of Sunday, i.e., on

16.12.2012. Rather, they deposed that on Sundays, there is

always  a  mass  prayer  in  the  church  and  there  is  no

question of organizing any programme outside the Church

premises  and  that  even  otherwise,  they  have  their  own

space/lawn  within  the  Church  premises  where  they  can

hold such type of programmes/functions.  

265. Though  Shri  Singh,  learned  counsel  for  the

respective  appellants,  tried  to  press  upon  a  document,

Ex.PW-84/B, a programme pamphlet of St. Thomas Church

wherein  it  was  mentioned  that  the  Church  was  holding

programmes  of  “Carol  Singing”  from  10.12.2012  to

23.12.2012 at 7:00 p.m. at public places, yet in view of the

categorical  denial  by  PW-84 and  PW-85  that  any  such

programme was organized by the Church on 16.12.2012 in

the DDA District Park, opposite IIT Gate, Hauz Khas, New

Delhi, the plea has no substance.

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266. It  is  settled  in  law that  while  raising  a  plea of

‘alibi’, the burden squarely lies upon the accused person to

establish the plea convincingly by adducing cogent evidence.

The plea of ‘alibi’ that accused Vinay Sharma and accused

Pawan Gupta  @ Kaalu  had  attended the  alleged  musical

programme in the evening of 16.12.2012 in the DDA District

Park, Hauz Khas, opposite IIT Gate, New Delhi,  has been

rightly rejected by the trial court which has been given the

stamp of approval by the High Court.

Criminal conspiracy

267. The  next  aspect  that  we  intend  to  address

pertains to criminal conspiracy. The accused persons before

us  were  charge-sheeted  for  the  offence  of  criminal

conspiracy within the meaning of Section 120A IPC apart

from other offences. The trial court found all the accused

guilty of the offence under Section 120B IPC and awarded

life imprisonment alongwith a fine of Rs. 5,000/- to each of

the  convicts.  The  High  Court  has  also  affirmed  their

conviction under  Section 120B after  recording concurrent

findings.

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268. Before analysing the present facts with reference

to Section 120A IPC in order to find out whether the charge

of criminal conspiracy is proved in respect of  each of the

accused,  it  is  pertinent  to  note  the  actual  nature  and

purport of Section 120A IPC and allied provisions. Section

120A IPC as contained in Chapter V-A defines the offence of

criminal conspiracy. The provision was inserted in the IPC

by virtue of Criminal Law (Amendment) Act, 1913. Section

120A IPC reads as under:

“120A. Definition of criminal conspiracy:-  When two or more persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal  by  illegal  means,  such  an  agreement  is designated a criminal  conspiracy:  Provided that no agreement except an agreement to commit an offence  shall  amount  to  a  criminal  conspiracy unless some act besides the agreement is done by one  or  more  parties  to  such  agreement  in pursuance thereof.

Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.”

269. Section  120B  being  pertinent  is  reproduced

below:

“120B.  Punishment of criminal conspiracy –  (1) Whoever is a party to a criminal conspiracy to commit  an  offence  punishable  with  death,

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imprisonment  for  life  or  rigorous  imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the  same  manner  as  if  he  had  abetted  such offence.

(2)  Whoever is a party to a criminal conspiracy other  than a criminal  conspiracy to commit  an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not  exceeding  six  months,  or  with  fine  or  with both.”

270. The  underlying  purpose  for  the  insertion  of

Sections 120A and 120B IPC was to make a mere agreement

to do an illegal act or an act which is not illegal by illegal

means punishable under law.  The criminal thoughts in the

mind when take concrete shape of an agreement to do or

cause to be done an illegal act or an act which is not illegal

by illegal  means than even if  nothing  further  is  done an

agreement  is  designated  as  a  criminal  conspiracy.   The

proviso  to  Section  120A  engrafts  a  limitation  that  no

agreement except an agreement to commit an offence shall

amount to a criminal conspiracy unless some act besides

the  agreement  is  done  by  one  or  more  parties  to  such

agreement in pursuance thereof.

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271. By  insertion  of  Chapter  V-A  in  IPC,  the

understanding of  criminal conspiracy in the Indian context

has become akin to that in England. The illegal act may or

may not  be  done  in  pursuance  of  an agreement  but  the

mere  formation  of  an  agreement  is  an  offence  and  is

punishable. The law relating to conspiracy in England has

been put forth in  Halsbury's Laws of England (vide 5th

Ed. Vol.25, page 73) as under:

“73. Matters common to all conspiracies. There are  statutory   common  law  offences  of conspiracy. The essence of the offences of both statutory and common law conspiracy  is  the fact  of  combination  by  agreement.  The agreement  may  be  express  or  implied,  or  in part  express  and  in  part  implied.  The conspiracy arises and the offence is committed as  soon  as  the  agreement  is  made;  and  the offence continues to be committed so long as the  combination  persists,  that  is  until  the conspiratorial  agreement  is  terminated  by completion  of  its  performance  or  by abandonment or frustration or however it may be. The actus reus in a conspiracy is therefore the agreement for the execution of the unlawful conduct,  not  the  execution  of  it.  It  is  not enough that two or more persons pursued the same unlawful  object at  the same time or in the  same  place;  it  is  necessary  to  show  a meeting  of  minds,  a  consensus  to  effect  an unlawful purpose. It is not, however, necessary that  each  conspirator  should  have  been  in communication with every other.”  

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272. The  English  law  on  ‘conspiracy’  has  been

succinctly explained by Russell on Crimes (12th Ed. Vol. 1

page 202) in the following passage:

“The gist  of  the offence of  conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in  the  forming  of  the  scheme  or  agreement between  the  parties.   Agreement  is  essential. Mere knowledge, or even discussion, of the plan is not, per se enough.”

273. Coleridge  J.  in  R.  v.  Murphy102 explained

‘conspiracy’ in the following words:

“…  I  am  bound  to  tell  you,  that  although  the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common  design,  and  to  pursue  it  by  common means, and so to carry it into execution.  This is not necessary, because in any cases of the most clearly  established  conspiracies  there  are  no means of proving any such thing and neither law nor  common  sense  requires  that  it  should  be proved.   If  you  find  that  these  two  persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be  at  liberty  to  draw  the  conclusion  that  they have been engaged in a conspiracy to effect that object.  The question you have to ask yourselves is, ‘had they this common design, and did they

102  (1837) 173 ER 502

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pursue  it  by  these  common  means  the  design being unlawful?”

274. Lord Brampton of the House of Lords in Quinn v.

Leatham103  had aptly defined conspiracy which definition

was engrafted in Sections 120A and 120B IPC.  Following

was stated by the House of Lords:

“‘A  conspiracy  consists  not  merely  in  the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it  into effect,  the very plot is an act in itself, and the act of each of the parties,  promise  against  promise,  actus  contra actum, capable of being enforced, if lawful; and punishable of for a criminal object, or for the use of criminal means’.”  

275. A  perusal  of  the  above  shows  that  in  order  to

constitute  an offence of  criminal  conspiracy, two or more

persons must agree to do an illegal act or an act which if not

illegal by illegal means. This Court on several occasions has

explained  and  elaborated  the  element  of  conspiracy  as

contained  in  our  penal  law.  In  Noor Mohammad Mohd.

Yusuf Momin vs State of Maharashtra104, this Court has

observed:

103  (1901) AC 495 104  AIR 1971 SC 885

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“Criminal  conspiracy  postulates  an  agreement between two or more persons to do, or cause to be  done  an  illegal  act  or  an  act  which  is  not illegal,  by  illegal  means.  It  differs  from  other offences  in  that  mere  agreement  is  made  an offence even if no step is taken to carry out that agreement.  Though there is close association of conspiracy  with  incitement  and  abetment  the substantive  offence  of  criminal  conspiracy  is somewhat wider in amplitude than abetment by conspiracy as contemplated by Section 107, I.P.C. A  conspiracy  from  its  very  nature  is  generally hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming  from wholly  disinterested,  quarters or from utter strangers. But, like other offences, criminal  conspiracy  can  be  proved  by circumstantial evidence.”  

276. In  E.G.  Barsay  v.  State  of  Bombay105,  the

following was stated:

”……  The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of  acts.  Under  Section  43  of  the  Indian  Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact  that  all  of  them  could  not  be  convicted separately in respect of each of the offences has no relevancy in considering the question whether the  offence  of  conspiracy  has  been  committed. They are all guilty of the offence of conspiracy to

105  AIR 1961 SC 1762

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do illegal acts, though for individual offences all of them may not be liable.

277. A three-Judge Bench in Yash Pal Mittal v. State

of  Punjab106 had  noted  the  ingredients  of  the  offence  of

criminal conspiracy and held:

“10. The main object of the criminal conspiracy in the  first  charge  is  undoubtedly  cheating  by personation. The other means adopted, inter alia, are  preparation  or  causing  to  be  prepared spurious  passports;  forging  or  causing  to  be forged  entries  and  endorsements  in  that connection;  and  use  of  or  causing  to  be  used forged passports as genuine in order to facilitate travel of persons abroad. The final object of the conspiracy in the first charge being the offence of cheating  by  personation,  as  we  find,  the  other offences  described  therein  are  steps,  albeit, offences themselves, in aid of the ultimate crime. The charge does not connote plurality of objects of the conspiracy. That the appellant himself  is not charged with the ultimate offence,  which is the  object  of  the  criminal  conspiracy,  is  beside the point in a charge under Section 120-B IPC as long as he is a party to the conspiracy with the end  in  view.  Whether  the  charges  will  be ultimately  established  against  the  accused  is  a completely different matter within the domain of the trial court.

11.  The  principal  object  of  the  criminal conspiracy in the first charge is thus “cheating by personation”,  and  without  achieving  that  goal other acts would be of no material use in which any person could be necessarily interested. That the appellant himself does not personate another person is beside the point when he is alleged to

106  (1977) 4 SCC 540

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be  a  collaborator  of  the  conspiracy  with  that object.  We  have  seen  that  some  persons  have been  individually  and  specifically  charged  with cheating by personation under Section 419 IPC. They were also charged along with the appellant under Section 120-B IPC. The object of criminal conspiracy  is  absolutely  clear  and  there  is  no substance  in  the  argument  that  the  object  is merely  to  cheat  simpliciter  under  Section  417, IPC.”

278. Certainly, entering into an agreement by two or

more  persons  to  do  an  illegal  act  or  legal  act  by  illegal

means is essential to the offence of criminal conspiracy as

has been rightly emphasized by this Court in Kehar Singh

and Ors. v. State (Delhi Administration)107. In the said

case,  the  court  further  stressed  upon  the  relevance  of

circumstantial  evidence  in  proving  conspiracy  as  direct

evidence in such cases is almost impossible to adduce.  

279. In the said case, K. Jagannatha Shetty, J., in his

concurring  opinion,  has  also  elaborated  the  concept  of

conspiracy to the following effect:

“274. It will be thus seen that the most important ingredient  of  the  offence  of  conspiracy  is  the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in  pursuance  of  agreement,  but  the  very agreement  is  an  offence  and  is  punishable.

107

(1988) 3 SCC 609

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Reference to Sections 120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy.

275.  Generally,  a  conspiracy  is  hatched  in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention.  The  prosecution  will  also  more  often rely  upon  circumstantial  evidence.  The conspiracy can be undoubtedly  proved by such evidence direct or circumstantial.  But the court must  enquire  whether  the  two  persons  are independently  pursuing  the  same  end  or  they have come together in the pursuit of the unlawful object.  The  former  does  not  render  them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some  kind  of  physical  manifestation  of agreement.  The  express  agreement,  however, need not  be  proved.  Nor  actual  meeting  of  two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as  to  transmission  of  thoughts  sharing  the unlawful  design  may  be  sufficient.  Gerald Orchard  of  University  of  Canterbury,  New Zealand  explains  the  limited  nature  of  this proposition:

“Although it  is  not  in doubt that  the offence requires  some  physical  manifestation  of agreement, it is important to note the limited nature  of  this  proposition.  The  law does  not require  that  the  act  of  agreement  take  any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that  the  parties  ‘actually  came  together  and

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agreed in terms’ to pursue the unlawful object; there need never have been an express verbal agreement, it being sufficient that there was ‘a tacit understanding between conspirators as to what should be done’.”

276. I share this opinion, but hasten to add that the relative acts or conduct of the parties must be conscientious  and  clear  to  mark  their concurrence  as  to  what  should  be  done.  The concurrence  cannot  be  inferred  by  a  group  of irrelevant facts artfully arranged so as to give an appearance  of  coherence.  The  innocuous, innocent  or  inadvertent  events  and  incidents should  not  enter  the  judicial  verdict.  We  must thus be strictly on our guard.”

280. In  Saju  v.  State  of  Kerala108,  explaining  the

concept of conspiracy, this Court stated the following:

“7. To prove the charge of criminal conspiracy the prosecution is required to establish that two or more persons had agreed to do or caused to be done, an illegal act or an act which is not legal, by  illegal  means.  It  is  immaterial  whether  the illegal act is the ultimate object of such crime or is merely incidental to that object. To attract the applicability of Section 120-B it has to be proved that all the accused had the intention and they had  agreed  to  commit  the  crime.  There  is  no doubt that conspiracy is hatched in private and in secrecy for which direct evidence would rarely be available…  

10. It has thus to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew was leading to the commission of a crime by one or more persons to the agreement, of that offence.

108  (2001) 1 SCC 378

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Besides the fact of agreement the necessary mens rea  of  the  crime  is  also  required  to  be established.”

281. In  Mir  Nagvi  Askari  v.  Central  Bureau  of

Investigation109, this Court reiterated the various facets of

‘criminal conspiracy’ and laid down as follows:

“60. Criminal conspiracy, it must be noted in this regard,  is  an  independent  offence.  It  is punishable  separately.  A  criminal  conspiracy must be put to action; for so long as a crime is generated in the mind of the accused, the same does  not  become  punishable.  Thoughts  even criminal in character, often involuntary, are not crimes but when they take a concrete shape of an agreement to do or caused to be done an illegal act or an act which is not illegal, by illegal means then  even  if  nothing  further  is  done,  the agreement  would  give  rise  to  a  criminal conspiracy.

61.  The  ingredients  of  the  offence  of  criminal conspiracy are:

(i) an agreement between two or more persons; (ii)  an  agreement  must  relate  to  doing  or

causing to be done either (a) an illegal act; (b) an act  which is  not  illegal  in itself  but is  done by illegal means.

Condition  precedent  for  holding  the  accused persons  to  be  guilty  of  a  charge  of  criminal conspiracy must, therefore, be considered on the anvil of the fact which must be established by the prosecution viz. meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.

109  (2009) 15 SCC 643

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62.  The  courts,  however,  while  drawing  an inference from the materials brought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that  a conspiracy is hatched  in  secrecy  and  it  is  difficult,  if  not impossible, to obtain direct evidence to establish the  same.  The  manner  and  circumstances  in which the offences have been committed and the accused persons took part are relevant. For the said  purpose,  it  is  necessary  to  prove  that  the propounders had expressly agreed to it or caused it  to  be  done,  and  it  may  also  be  proved  by adduction of  circumstantial  evidence and/or  by necessary  implication.  (See  Mohd.  Usman Mohammad  Hussain  Maniyar v.  State  of Maharashtra110.)

282. In  Pratapbhai Hamirbhai Solanki v. State of

Gujrat  and  another111,  this  Court  explained  the

ingredients of ‘criminal conspiracy’ as under:

“21. At this stage, it is useful to recapitulate the view  this  Court  has  expressed  pertaining  to criminal  conspiracy.  In  Damodar v.  State  of Rajasthan112, a two-Judge Bench after referring to the decision in Kehar Singh v. State (Delhi Admn.) and  State of Maharashtra v.  Som Nath Thapa113, has stated thus:

“15. … The most important ingredient  of  the offence  being  the  agreement  between  two  or more  persons to  do  an illegal  act.  In  a  case where criminal conspiracy is alleged, the court must  inquire  whether  the  two  persons  are independently pursuing the same end or they

110  (1981) 2 SCC 443 111  (2013) 1 SCC 613 112  (2004) 12 SCC 336 113  (1996) 4 SCC 659

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have  come  together  to  pursue  the  unlawful object. The former does not render them   conspirators  but  the  latter  does.  For  the offence  of  conspiracy  some  kind  of  physical manifestation of  agreement  is  required  to  be established.  The express agreement  need not be proved. The evidence as to the transmission of  thoughts  sharing  the  unlawful  act  is  not (sic*)  sufficient.  A  conspiracy is  a  continuing offence  which  continues  to  subsist  till  it  is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or a series of  acts, he would be held guilty under Section 120-B of the Penal Code, 1860.”

22. In Ram Narayan Popli v.  CBI114 while dealing with  the  conspiracy  the  majority  opinion  laid down that:

“342. … The elements of a criminal conspiracy have  been  stated  to  be:  (a)  an  object  to  be accomplished, (b) a plan or scheme embodying means  to  accomplish  that  object,  (c)  an agreement  or  understanding  between  two  or more  of  the  accused  persons  whereby,  they become definitely  committed  to  cooperate  for the accomplishment of the object by the means embodied in the agreement, or by any effectual means,  and (d)  in the  jurisdiction where  the statute required an overt act.”

It has been further opined that:

“342. … The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence  is  complete  when the  combination  is framed.  …  no  overt  act  need  be  done  in furtherance  of  the  conspiracy,  and  that  the object  of  the  combination  need  not  be

114  (2003) 3 SCC 641

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accomplished,  in  order  to  constitute  an indictable  offence.  Law  making  conspiracy  a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which  co-conspirators  give  to  one  another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish  the  ground  for  visiting  conspirators and  abettors  with  condign  punishment.  The conspiracy  is  held  to  be  continued  and renewed as to  all  its  members wherever  and whenever any member of  the conspiracy acts in furtherance of the common design.”

The two-Judge Bench proceeded to state that:

“342. …  For  an  offence  punishable  under Section  120-B,  the  prosecution  need  not necessarily  prove  that  the  perpetrators expressly  agree  to  do  or  cause  to  be  done illegal  act;  the  agreement  may  be  proved  by necessary  implication.  Offence  of  criminal conspiracy has its foundation in an agreement to  commit  an  offence.  A  conspiracy  consists not merely in the intention of two or more, but in  the  agreement  of  two  or  more  to  do  an unlawful act by unlawful means.”

23. In the said case it has been highlighted that in  the  case  of  conspiracy  there  cannot  be  any direct  evidence.  The  ingredients  of  offence  are that  there  should  be  an  agreement  between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be  illegal.  Therefore,  the  essence  of  criminal conspiracy is  an agreement to do an illegal  act and such an agreement can be proved either by direct evidence or by circumstantial  evidence or by both, and it is a matter of common experience

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that direct evidence to prove conspiracy is rarely available.  Therefore,  the  circumstances  proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.”

283. As  already  stated,  in  a  criminal  conspiracy,

meeting of minds of two or more persons for doing an illegal

act is the sine qua non but proving this by direct proof is not

possible. Hence, conspiracy and its objective can be inferred

from the surrounding circumstances and the conduct of the

accused. Moreover, it is also relevant to note that conspiracy

being  a  continuing  offence  continues  to  subsist  till  it  is

executed  or  rescinded  or  frustrated  by  the  choice  of

necessity. In K. R. Purushothaman  v. State of Kerala115,

the Court has made the following observations with regard

to the formation and rescission of an agreement constituting

criminal conspiracy:

“To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or  an  act  by  illegal  means  is  the  first  and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part  in  the  commission  of  each  and  every conspiratorial  acts.  The  agreement  amongst the conspirators can be inferred by necessary implication.  In  most  of  the  cases,  the

115  (2005) 12 SCC 631

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conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair.  The  existence  of  conspiracy  and  its objects  are  usually  deduced  from  the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well-known  rule  governing  circumstantial evidence  viz.  each  and  every  incriminating circumstance  must  be  clearly  established  by reliable evidence and the circumstances proved must form a chain of  events from which the only irresistible conclusion about the guilt  of the accused can be safely drawn, and no other hypothesis  against  the  guilt  is  possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal  Code  and  not  an  accomplishment. Conspiracy  consists  of  the  scheme  or adjustment  between  two  or  more  persons which  may  be  express  or  implied  or  partly express  and  partly  implied.  Mere  knowledge, even discussion, of the plan would not per se constitute  conspiracy.  The  offence  of conspiracy shall  continue till  the termination of agreement.”   

284. After  referring  to  a  catena  of  judicial

pronouncements  and authorities,  a  three-Judge Bench of

this  Court  in  State through Superintendent of  Police,

CBI/SIT v. Nalini and others116 summarised the principles

relating to criminal conspiracy as under:

116  (1999) 5 SCC 253

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and all will be members of a single conspiracy if they  so  intend  and  agree,  even  though  each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind  of  umbrella-spoke  enrollment,  where  a single  person  at  the  center  doing  the  enrolling and  all  the  other  members  being  unknown  to each other, though they know that there are to be other  members.  These  are  theories  and  in practice  it  may  be  difficult  to  tell  whether  the conspiracy in a particular  case falls  into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may  be  members  of  single  conspiracy  even though each is ignorant of the identity of many others who may have diverse role to play. It is not a  part  of  the  crime  of  conspiracy  that  all  the conspirators need to agree to play the same or an active role.

5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering  any  plans  for  its  commission,  and despite the fact that no step is taken by any such person  to  carry  out  their  common  purpose,  a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that  intended  crime  was  committed  or  not.  If committed  it  may  further  help  prosecution  to prove the charge of conspiracy.

6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before  the  consummation  of  the  intended objective,  and all  are  equally  responsible.  What part  each  conspirator  is  to  play  may  not  be known  to  everyone  or  the  fact  as  to  when  a conspirator  joined the  conspiracy  and when he left.

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7.  A  charge  of  conspiracy  may  prejudice  the accused because it is forced them into a joint trial and the court  may consider  the  entire  mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the  accused  has  knowledge  of  object  of conspiracy  but  also  of  the  agreement.  In  the charge  of  conspiracy  court  has  to  guard  itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means  of  evidence  in  conspiracy,  which  is otherwise inadmissible  in the trial  of  any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also  in  the  substantive  crime  of  the  alleged conspirators. There is always difficulty in tracing the precise contribution of  each member of  the conspiracy but then there has to be cogent and convincing  evidence  against  each  one  of  the accused charged with the offence of conspiracy. As  observed by  Judge Learned Hand that  "this distinction  is  important  today  when  many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders".

8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence  of  the  crime  of  conspiracy.  Offence  of criminal  conspiracy  is  complete  even  though there is no agreement as to the means by which the  purpose  is  to  be  accomplished.  It  is  the unlawful agreement, which is the graham of the crime  of  conspiracy.  The  unlawful  agreement which  amounts  to  a  conspiracy  need  not  be formal  or  express,  but may be inherent in and inferred  from  the  circumstances,  especially declarations,  acts,  and  conduct  of  the conspirators. The agreement need not be entered into by all the parties to it at the same time, but

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may be reached by successive actions evidencing their joining of the conspiracy.

9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy  a  joint  or  mutual  agency  for  the prosecution of  a  common plan.  Thus,  if  two or more  persons  enter  into  a  conspiracy,  any  act done by any of them pursuant to the agreement is in contemplation of law, the act of each of them and they  are  jointly  responsible  therefore.  This means that  everything said,  written or  done by any  of  the  conspirators  in  execution  or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to  the  original  agreement  but  also  to  collateral acts incident to and growing out of the original purpose.  A  conspirator  is  not  responsible, however, for acts done by a co-conspirator after termination of  the  conspiracy.  The  joinder  of  a conspiracy by a new member does not create a new conspiracy nor does it change the status of the  other  conspirators,  and  the  mere  fact  that conspirators  individually  or  in  groups  perform different tasks to a common end does not split up a conspiracy into several different conspiracies.  

10. A man may join a conspiracy by word or by deed.  However,  criminal  responsibility  for  a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits  an  overt  act  with  knowledge  of  the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others  put  the  conspiracy  into  effect,  is  guilty though he intends to take no active part in the crime.”  

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285. The rationale of  conspiracy is that the required

objective  manifestation  of  disposition  of  criminality  is

provided  by  the  act  of  agreement.  Conspiracy  is  a

clandestine activity.  Persons generally do not form illegal

covenants openly.  In the interest of security, a person may

carry  out  his  part  of  a  conspiracy  without  even  being

informed  of  the  identity  of  his  co-conspirators.   An

agreement of this kind can rarely be shown by direct proof;

it  must  be  inferred  from  the  circumstantial  evidence  of

co-operation between the accused.  What people do is,  of

course, evidence of what lies in their minds.  To convict a

person of  conspiracy,  the prosecution must show that he

agreed with others that they would together accomplish the

unlawful  object  of  the  conspiracy.  [See:  Firozuddin

Basheeruddin and others v. State of Kerala117]

286. In Suresh Chandra Bahri v. State of Bihar118,

this Court reiterated that the essential ingredient of criminal

conspiracy  is  the  agreement  to  commit  an  offence.  After

referring  to  the  judgments  in  Noor  Mohd.  Mohd.  Yusuf

117  (2001) 7 SCC 596 118 1995 Supp (1) SCC 80

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Momi (supra) and  V.C. Shukla v. State (Delhi Admn.)119,

it was held in S.C. Bahri (supra) as under:  

“[A]  cursory look to the provisions contained in Section 120-A reveals that a criminal conspiracy envisages  an  agreement  between  two  or  more persons to commit an illegal act or an act which by itself may not be illegal but the same is done or executed by illegal means. Thus the essential ingredient of the offence of criminal conspiracy is the  agreement  to  commit  an offence.  In a  case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by  the  prosecution  because  in  such  a fact-situation criminal  conspiracy is  established by proving such an agreement.  In other words, where  the  conspiracy  alleged  is  with  regard  to commission of a serious crime of the nature as contemplated  in  Section  120-B  read  with  the proviso to sub-section (2) of  Section 120-A IPC, then in that  event  mere  proof  of  an agreement between the  accused for  commission of  such a crime alone is enough to bring about a conviction under Section 120-B and the proof of any overt act by the accused or by any one of them would not  be  necessary.  The  provisions  in  such  a situation  do  not  require  that  each  and  every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of  conspiracy,  the  essential  ingredient  being an agreement  between  the  conspirators  to  commit the  crime  and  if  these  requirements  and ingredients  are  established  the  act  would  fall within the trapping of the provisions contained in Section  120-B  since  from  its  very  nature  a conspiracy  must  be  conceived  and  hatched  in complete  secrecy,  because  otherwise  the  whole purpose  may  be  frustrated  and  it  is  common experience and goes without saying that only in

119 (1980) 2 SCC 665

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very  rare  cases  one  may  come  across  direct evidence of a criminal conspiracy to commit any crime  and  in  most  of  the  cases  it  is  only  the circumstantial  evidence  which is  available  from which an inference giving rise to the conclusion of an  agreement  between  two  or  more  persons  to commit an offence may be legitimately drawn.”

287. From the law discussed above, it becomes clear

that the prosecution must adduce evidence to prove that:  

(i) the accused agreed to do or caused to be done an act; (ii) such an act was illegal  or  was to be done by illegal

means within the meaning of IPC; (iii) irrespective of whether some overt act was done by one

of the accused in pursuance of the agreement.

288. In  the  case  at  hand,  the  prosecution  has

examined PW-82 to prove the charges of conspiracy and for

further identification of all the accused persons in the bus

on the date of the incident. He has also been presented to

support  the  prosecution  case  that  immediately  preceding

the  fateful  incident,  all  the  accused  persons  had,  in

execution of their conspiracy, been robbing/merry-making

with passengers on the road.

289. The  defence  has  controverted  the  testimony  of

PW-82 on several aspects which has already been discussed

before.  It  has  been alleged that  Ram Adhar,  PW-82,  is  a

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planted witness who was brought in by the investigators to

fill the lacunae, if any, in their investigation and to further

make  a  strong  case  against  the  accused  persons.  The

defence has further denied the presence of accused Mukesh

at  the  scene  of  the  crime.  Accused  Vinay  and  accused

Akshay have also raised the plea of  alibi  which has been

dealt with separately by us.  Regardless of the fact that we

have found  the testimony of PW-82 to be creditworthy, even

if  the same is  not  taken into  account  for  the purpose of

establishing  that  the  accused acted in  concert  with each

other  to  commit  heinous  offences  against  the  victim,  the

testimony of PW-1 coupled with the dying declarations  of

the  prosecutrix  irrefragably  establish  the  charge  under

Section 120B against all the accused persons.  

290. First of all, in order to prove the presence of all

the accused on board the bus where the entire incident took

place,  the  prosecution  has  relied  upon  the  testimony  of

PW-1,  PW-82,  PW-16  and,  most  importantly,  the  dying

declarations of the prosecutrix.

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291. As  per  the  records,  PW-82  has  testified  to  the

effect that on the date of the incident, about 8:30 p.m., he

had boarded the concerned bus from Munirka Bus Stand,

New Delhi, on noticing that the conductor of the bus sought

commuters  for  Khanpur.  However,  he  was  later  informed

that  he  would  be  dropped  at  Nehru  Place  instead  of

Khanpur. When PW-82 tried to get down the bus, he was

wrongfully confined, attacked by the persons inside the bus

who robbed him of his belongings, viz., Rs.1500/- in cash

and a mobile phone, and he was then thrown out of  the

moving bus. During the trial, PW-82 has identified all the

four accused persons, viz., Akshay Kumar Singh @ Thakur,

Pawan Gupta, Vinay Sharma and accused Mukesh, present

in the concerned bus at the time of the incident. PW-82 had

lodged the complaint on 18.12.2012 on the basis of which

FIR No. 414 of 2012 was registered at P.S. Vasant Vihar,

New Delhi under Sections 365, 397, 342 IPC.  

292. Learned senior counsel for the State, Mr. Luthra,

has submitted that PW-82 had been examined to establish

the conduct of the accused on the aspect of conspiracy and

also to establish the identity of the accused persons before

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the trial court.  It was further submitted that PW-82, Ram

Adhar, identified all the four accused in the court, namely,

Akshay  Kumar  Singh  @  Thakur,  Pawan  Gupta,  Vinay

Sharma and Mukesh besides two others present inside the

bus  and  also  identified  Mukesh  as  driving  the  bus  and

stated that others took him inside the bus and robbed him

and attacked him.

293. The  contention  of  the  appellants  is  that  the

testimony  of  PW-82  is  not  bereft  of  doubt  for  several

reasons,  namely,  a)  delay  in  lodging  FIR,  b)

non-examination  of  Sanjiv  Bhai  as  a  witness,  c)  he  has

stated that he heard the person with the burnt hand say

“Mukesh,  tez  chalao”,   d)  apart  from  that,  he  does  not

mention that he heard the names of any of the accused, and

e) he had not visited a doctor/hospital despite stating that

he  had  injuries  on  his  face  which  prevented  him  from

registering an FIR.

294. Regarding the alleged incident of attack on PW-82

by the accused, it was submitted that the said case against

the accused ended in conviction and the same is pending in

appeal.   In  respect  of  the  credibility  of  the  testimony  of

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PW-82  as  to  the  commission  of  the  offence,  we  are  not

inclined to take into account the evidence of PW-82 except

on one limited aspect, that is, the presence of the accused

in the bus, Ex.P1, on the night of 16.12.2012 since PW-82’s

presence in the bus on the night of 16.12.2012 is admitted.

In  his  statement  under  Section  313  CrPC,  Mukesh-A2

admitted that PW-82 had boarded the offending bus prior to

the boarding of the bus by the informant and the victim.

The relevant portion of his statement is extracted as under:

“Q.211: It is in evidence against you that PW82 Shri  Ram  Adhar  deposed  that  on  16.12.2012 after finishing his carpenter’s work at a shop at Munirka till about 8:30 PM, he boarded a white colour bus from sabji Market across the road of my work place.  The helper of the bus was calling the passenger by saying “khanpur-khanpur”.  As PW82 boarded the bus, one of the occupants told him that  the  bus is  going  to  Nehru Place.   As PW82 tried to get down, one person whose one limb was having  burn injuries,  gave  beating  to him.  The other person pulled him inside the bus towards the back side and they all gave beating to him and removed his belongings i.e. one mobile with  two  sims  and  Rs.1500/-.   The  sim  card numbers  were  9999095739  and  9971612554. What do you have to say?

Ans: It is correct that PW82 Shri Ram Adhar had boarded the bus Ex.P1 on 16.12.2012 prior to the boarding  of  the  bus  Ex.P1  by  the  complainant and the victim.  He boarded the bus from Sabji Mandi at Sector-4 on the main road.  He went on the back side of the bus but after sometime he

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was made to deboard the  bus at  IIT  flyover  by accused Akshay as he had no money to pay the fare.  At that time accused Akshay, accused Ram Singh,  since  deceased,  accused  Vinay  accused Pawan along with JCL were present in the bus and I was driving it.”

[underlining added]

The presence of PW-82 in Ex.P1 bus prior to the boarding of

the  bus by the informant,  PW-1,  and the victim and the

presence of all the accused in the bus is, thus, established

by the prosecution.

295. The evidence of PW-81, Dinesh Yadav, the owner

of  the  offending  bus,  indicates  accused  Ram Singh,  A-1,

(since deceased) as the driver of the bus and Akshay Kumar

as the  cleaner  of  the  bus which is  further  shown in the

attendance  register  of  the  bus  exhibited  as  Ex.PW-80/K.

The evidence of  PW-81, Dinesh Yadav, is corroborated by

the  entries  made in the  attendance register  where in the

driver’s page at Sl. No. 5, the name of accused Ram Singh

(since  deceased)  is  written  against  bus  No.  0149  and  at

Sl.No. 15, the name of Akshay is written as helper against

bus  No.  0149.   As  stated  earlier,  the  bus  bearing

Registration No.DL-1PC-0149 was one of the buses hired by

Birla Vidya Niketan School, Pushp Vihar, New Delhi and the

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fact that the driver of the bus at the relevant time was Ram

Singh is sought to be proved by the prosecution through the

testimony  of  PW-16,  Rajeev  Jakhmola,  Manager

(Administration) of the said school.  The said witness has

testified that one Dinesh Yadav, PW-81, had provided seven

buses to the school including bus bearing No. DL-1PC-0149

for the purpose of ferrying the children of the school.  The

driver of this bus was one Ram Singh, son of Mange Lal.

The  documents  relating  to  the  bus  including  the

photocopies of the agreement between the school and the

bus contractor,  copy of the driving licence of  Ram Singh,

A-1,  and the  letter  of  termination dated 18.12.2012 with

“Yadav Travels” were furnished to the Investigating Officer,

SI  Pratibha  Sharma,  vide  his  letter  dated  25.12.2012,

exhibited  as  Ex.PW-16/A  (colly.).  From  the  evidence  of

PW-16, Rajeev Jakhmola, it stands proved that the bus in

question  was  routinely  driven  by  Ram  Singh  (since

deceased).  The  statement  of  PW-16,  Rajeev  Jakhmola,  is

corroborated  by  the  testimony  of  PW-81,  Dinesh  Yadav.

Significantly, PW-81, Dinesh Yadav, further testified:

“This  bus  was  being  parked  by  accused  Ram Singh  near  his  house  because  this  bus  was

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attached with the school and also with an office as a chartered bus and that the accused used to pick up the students early in the morning.”  

296. The testimony of PW-13, Brijesh Gupta, who was

an  auto  driver  and  also  resident  of  jhuggi  at  Ravi  Dass

Camp  from  where  the  offending  bus  was  seized  is  also

relevant to prove the presence of the accused in the bus. He

stated in his evidence that A-1, Ram Singh (since deceased),

is the brother of A-2, Mukesh, and that both resided in the

jhuggi at Ravi Dass camp and that Ram Singh used to drive

the  said  bus  and  park  it  in  the  night  near  his  jhuggi.

PW-13,  in  his  evidence,  deposed  that  on  the  night  of

16.12.2012,  about  11:30  p.m.,  when  he  returned  to  his

jhuggi after plying his auto, he saw accused Mukesh, A-2,

taking  water  in  some can inside  a white  colour  bus and

washing it from inside. He also noticed some clothes and

pieces of curtains being burnt in the fire.     

297. In  his  questioning  under  Section  313  CrPC,

Mukesh,  A-2,  has  admitted that  he  and A-1,  Ram Singh

(since deceased), are brothers.  He has also admitted that on

the night of 16.12.2012, he was driving the bus and that

accused  Pawan  and  Vinay  Sharma  were  seated  on  the

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backside  of  the  driver’s  seat,  whereas  Akshay  and  Ram

Singh  were  sitting  in  the  driver’s  cabin.   The  relevant

portion of his statement under Section 313 CrPC reads as

under:

“Q2. It  is  in  evidence  against  you  that  PW1 further deposed that they inquired from 4-5 auto rickshaw-walas to take them to Dwarka, but they all  refused.   At  about  9  PM  they  reached  at Munirka bus stand and found a white colour bus on which “Yadav” was written.  A boy in the bus was  calling  for  commuters  for  Dwarka/Palam Mod.  PW1 noticed yellow and green line/strips on the bus and that the entry gate of the bus was ahead of  its  front  tyre,  as in luxury buses and that the front tyre was not having a wheel cover. What do you have to say?

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

Q4: It is in evidence against you that during the course of his deposition, complainant, PW-1 has identified you accused Mukesh to be the person who  was  sitting  on  the  driver’s  seat  and  was driving  the  bus;  PW1  further  identified  your co-accused  Ram  Singh  (since  deceased),  and Akshay Kumar to be the person who were sitting in the driver’s cabin alongwith the driver; PW-1 had  also  identified  your  co-accused  Pawan Kumar  who  was  sitting  in  front  of  him in  two seats  row of  the  bus;  PW-1 had also  identified your co-accused Vinay Sharma to be the person who was sitting in three seats row just behind the Driver’s cabin, when PW1 entered the bus; PW1 has  also  deposed  before  the  court  that  the conductor  who  was  calling  him  and  his friend/prosecutrix  to  board  the  bus  Ex.P1  was

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not among the accused person being tried in this court.

Ans: Accused Pawan and accused Vinay Sharma were sitting on my back side of the driver’s seat and whereas accused Akshay was sitting in the driver’s cabin while my brother Ram Singh, since deceased was asking for passengers.

Q5: It  is  in  evidence  against  you  that  after entering the bus PW1 noticed that seats cover of the  bus  were  of  red  colour  and  it  had  yellow colour curtains and the windows of the bus had black film on it.   The windows were at  quite  a height  as  in  luxury  buses.   As  PW1  sat  down inside  the  bus,  he  noticed  that  two  of  you accused  were  sitting  in  the  driver’s  cabin  were coming and returning to the driver’s cabin.  PW1 paid  an  amount  of  Rs.20/-  as  bus  fare  to  the conductor  i.e.  Rs.10/- per  head.   What  do you have to say?

Ans: It  is  correct  that  the  windows  of  the  bus Ex.P1 were having black film on it but I cannot say if the seats of the bus were having red covers or that the curtains were of yellow colour as my brother Ram Singh, since deceased, only used to drive the bus daily and that on that day since he was drunk heavily so I had gone to Munirka to bring him to my house and hence, I was driving the bus on that day.  I had gone to Munirka with my nephew on my cycle to fetch Ram Singh since deceased and that the other boys alongwith Ram Singh  had  already  taken  the  bus  from R.K.Puram. I was called by Ram Singh on phone to come at Munirka.”

298. A-3,  Akshay @ Thakur,  in his statement under

Section 313 CrPC, has admitted that he was working with

A-1,  Ram  Singh  (since  deceased),  in  the  offending  bus,

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Ex.P1, as a helper.  He has also admitted therein that he

had joined A-1, Ram Singh (since deceased), on 03.11.2012.

The  relevant  portion  of  his  statement  under  Section  313

CrPC is extracted hereunder:

“Q.210: It is in evidence against you that PW81 Shri Dinesh Yadav is the owner of the bus Ex.P1 and that he has employed accused Ram Singh, since deceased,  as the driver of  the bus in the month  of  December,  2012  and  you  accused Akshay was working as helper in the said bus. Further, he deposed that on 25.12.2012 he had handed over the documents relating to the bus to the  investigating  officer,  seized  vide  memo Ex.PW80/K.  The copy of the challan and copy of the  notice  are  collectively  Ex.P-81/1  and  the register on which “Yadav Travels 2012” is written is  Ex.P-81/2.   He  also  identified  the  driving license  Ex.P-74/1  of  his  driver,  accused  Ram Singh, since deceased.  He further deposed that the bus Ex.P1 used to ply in Birla Vidya Niketan as well  as  chartered bus and used to take the office-goers from Delhi  and drop them at Noida every morning and evening.  What do you have to say?

Ans: It is correct that I was working as a helper in the  bus  Ex.P1.   I  joined  Ram  Singh,  since deceased as  helper  on 3.11.2012 but  I  left  the company of Ram Singh on 15.12.2012 at about 10.30 AM and I left for my village at 11:30 am and I went to New Delhi Railway Station and I left Delhi in the train at about 2:30 P.M.”

299. DW-5, Smt. Champa Devi, is the mother of Vinay

Sharma, A-4.  She has stated in her evidence that her son,

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Vinay Sharma,  A-4,  who returned home at  4:00 p.m.  on

16.12.2012,  went  in  search of  A-1  on  hearing  about  the

misbehaviour of A-1, Ram Singh (since deceased), with his

sister and was able to trace him by 8:00 p.m. and that her

son Vinay Sharma, A-4, had quarreled with Ram Singh, A-1.

She has deposed in her evidence that her son Vinay Sharma

returned bleeding from his mouth and after some time they

had  left  to  the  DDA  District  Park  to  attend  a  musical

programme where  they  had met  A-5,  Pawan alias  Kaalu,

alongwith two others.   

300. The prosecution has, thus, established that the

accused were associated with each other. The criminal acts

done  in  furtherance  of  conspiracy  is  established  by  the

sequence  of  events  and  the  conduct  of  the  accused.  An

important facet of the law of conspiracy is that apart from it

being a distinct offence, all  conspirators are liable for the

acts of each other of the crime or crimes which have been

committed as a result of the conspiracy. Section 10 of the

Indian Evidence Act which reads as under is relevant in this

context:

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“10.  Things  said  or  done  by  conspirator  in reference  to  common  design.-  Where  there  is reasonable  ground  to  believe  that  two  or  more persons  have  conspired  together  to  commit  an offence  or  an  actionable  wrong,  anything  said, done or written by any one of  such persons in reference  to  their  common  intention,  after  the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for  the  purpose  of  proving  the  existence  of  the conspiracy as for the purpose of showing that any such person was a party to it.”

301. Section 10 of the Indian Evidence Act begins with

the phrase “where there is reasonable ground to believe that

two or more persons have conspired together to commit an

offence”  which implies  that  if  prima facie  evidence  of  the

existence of a conspiracy is given and accepted, the evidence

of acts and statements made by any one of the conspirators

in  furtherance  of  the  common  intention  is  admissible

against all. In the facts of the present case, the prima facie

evidence of the existence of conspiracy is well established.    

302. The informant, PW-1, has also deposed as to the

clarity  of  the  entire  incident.  He  has  identified  all  the

accused to be present in the bus when he had boarded the

same with the prosecutrix. He has maintained that he saw

three persons sitting in the driver's cabin who were moving

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in  and  out  of  the  cabin.  Both  the  informant  and  the

prosecutrix  had  sensed  some  sort  of  hostility  and

strangeness in the behaviour of the accused. But, as they

had paid for the ticket, they quietly kept sitting. Soon they

found  that  the  lights  in  the  bus  were  put  off  and  the

accused Ram Singh (since deceased) and accused Akshay

came near them to ask where PW1 was heading with the

prosecutrix  at  that  odd  time  of  the  evening.  PW-1,  on

objecting to such a query, was beaten and pinned down by

the accused. Thereafter, all the accused, one after the other,

committed rape and unnatural sex on the prosecutrix using

iron  rods  which  has  been  explicitly  described  by  the

prosecutrix  herself  in  her  dying  declarations  recorded  by

PW-27, Sub-Divisional Magistrate, and PW-30, Metropolitan

Magistrate.  The  relevant  portion  of  the  second  dying

declaration of the prosecutrix as contained in Ex.PW-27/A

is as under:

“Q.09  Iske  baad  kya  hua?  Kripya  vistaar  se bataiye.  

Ans.09  Paanch  minute  baad  jab  bus  Malai Mandir ke pul par chadi toh conductor ne bus ke darwaze  bandh  kar  diye  aur  andar  ki  batiya bujha di aur mere dost ke paas akar galiyan dene lage aur marne lage. Usko 3-4 logo ne pakad liya

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aur mujh ko baki log mujhe bus ke peechey hisey mein le gaye aur mere kapde faad diye aur bari-2 se rape kiya. Lohey ki rod se mujhe mere paet par maara aur poore shareer par danto se kata. Is se pehle mere dost ka saman - mobile phone, purse, credit card & debit card, ghadi aadi cheen liye. But total chhey (6) log the jinhoney bari-bari se oral (oral) vaginal (through vagina) aur pichhey se (anal)  balatkar  kiya.  In  logo  ne  lohe  ki  rod  ko mere shareer ke andar vaginal/guptang aur guda (pichhey se) (through rectum) dala aur phir bahar bhi nikala. Aur mere guptango haath aur lohe ki rod dal kar mere shareer ke andruni hisson ko bahar nikala aur chot pahunchayi. Chhey logo ne bari-bari  se  mere  saath  kareeb  ek  ghante  tak balatkar  kiya.  Chalti  huyi  bus  mein  he  driver badalta raha taaki woh bhi balatkar kar sake.”  

303. The chain of events described by the prosecutrix

in her dying declarations coupled with the testimonies of the

other  witnesses  clearly  establish  that  as  soon  as  the

informant and the prosecutrix boarded the bus, the accused

persons formed an agreement to commit heinous offences

against the victim. Forcefully having sexual intercourse with

the prosecutrix, one after the other, inserting iron rod in her

private parts, dragging her by her hair and then throwing

her out of the bus all establish the common intent of the

accused to rape and murder the prosecutrix. The trial court

has rightly recorded that the prosecutrix’s alimentary canal

from the level of duodenum upto 5 cm of anal sphincter was

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completely  damaged.  It  was  beyond  repair.  Causing  of

damage to the jejunum is indicative of the fact that the rod

was inserted through the vagina and/or anus upto the level

of  jejunum.  Further,  septicemia was the  direct  result  of

multiple  internal  injuries. Moreover,  the  prosecutrix  has

also maintained in her dying declaration that the accused

persons were exhorting that the prosecutrix had died and

she  be  thrown  out  of  the  bus.  Ultimately,  both  the

prosecutrix as well as the informant were thrown out of the

moving  bus  through the  front  door  by  the  accused  after

having  failed  to  throw  them  through  the  rear  door.  The

conduct of the accused in committing heinous offences with

the prosecutrix in concert  with each other and thereafter

throwing  her  out  of  the  bus  in  an  unconscious  state

alongwith PW-1 unequivocaly bring home the charge under

Section 120B in case of each of them.  The criminal acts

done in furtherance of  the conspiracy is evident from the

acts and also the words uttered during the commission of

the  offence.  Therefore,  we  do  not  have  the  slightest

hesitation in holding that the trial court and the High Court

have correctly considered the entire case on the touchstone

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of well-recognised principles for arriving at the conclusion of

criminal  conspiracy.  The  prosecution  has  been  able  to

unfurl the case relating to criminal conspiracy by placing

the  materials  on  record  and  connecting  the  chain  of

circumstances.  The relevant evidence on record lead to a

singular conclusion that the accused persons are liable for

criminal  conspiracy  and  their  confessions  to  counter  the

same deserve to be repelled.

Summary of conclusions:

304. From the  critical  analysis,  keen appreciation of

the evidence and studied scrutiny of the oral evidence and

other materials, we arrive at the following conclusions:

i. The evidence of PW-1 is unimpeachable and it deserves

to be relied upon.  

ii. The accused persons alongwith the juvenile in conflict

with law were present in the bus when the prosecutrix

and her friend got into the bus.

iii. There  is  no  reason  or  justification  to  disregard  the

CCTV footage, for the same has been duly proved and

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it clearly establishes the description and movement of

the bus.

iv. The arrest of the accused persons from various places

at  different  times  has  been  clearly  proven  by  the

prosecution.  

v. The  personal  search,  recoveries  and  the  disclosure

leading to recovery are in consonance with law and the

assail  of  the  same  on  the  counts  of  custodial

confession  made  under  torture  and  other  pleas  are

highly specious pleas and they do not remotely create

a dent in the said aspects.  

vi. The contention raised by the accused persons that the

recoveries  on  the  basis  of  disclosure  were  a  gross

manipulation by the investigating agency and deserve

to be thrown overboard does not merit acceptance.  

vii. The  relationship  between  the  parties  having  been

clearly established, their arrest gains more credibility

and the involvement of each accused gains credence.  

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viii. The dying declarations, three in number, do withstand

close scrutiny and they are consistent with each other.

ix. The stand that the deceased could not have given any

dying declaration because of her health condition has

to be repelled because the witnesses who have stated

about the dying declarations have stood embedded to

their version and nothing has been brought on record

to  discredit  the  same.   That  apart,  the  dying

declaration  by  gestures  has  been  proved  beyond

reasonable doubt.

x. There is no justification in any manner whatsoever to

think  that  PW-1  and  the  deceased  would  falsely

implicate  the  accused-appellants  and  leave  the  real

culprits.

xi. The  dying  declarations  made  by  the  deceased  have

received corroboration from the oral and documentary

evidence  and  also  enormously  from  the  medical

evidence.  

xii. The DNA profiling, which has been done after taking

due care for quality, proves to the hilt the presence of

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the accused persons in the bus and their involvement

in  the  crime.   The submission that  certain  samples

were later on taken from the accused and planted on

the deceased to prove the DNA aspect is noted only to

be rejected because it has no legs to stand upon.  

xiii. The argument  that  the  transfusion of  blood has the

potentiality to give rise to two categories of DNA or two

DNAs is farthest from truth and there is no evidence

on  that  score.   On  the  contrary,  the  evidence  in

exclusivity points to the matching of the DNA of the

deceased with that of  the accused on many aspects.

The evidence brought on record with regard to finger

prints is absolutely impeccable and the trial court and

the High Court have correctly placed reliance on the

same and we, in our analysis, have found that there is

no reason to disbelieve the same.  

xiv. The  scientific  evidence  relating  to  odontology  shows

how far  the  accused  have  proceeded and where  the

bites have been found and definitely,  it  is  extremely

impossible to accept the submission that it has been a

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manipulation by the investigating agency to rope in the

accused persons.  

xv. The  evidence  brought  on record as  regards  criminal

conspiracy stands established.  

In  view  of  the  aforesaid  summation,  the  inevitable

conclusion  is that the prosecution has proved the charges

leveled against the appellants beyond reasonable doubt.

Sentencing procedure and compliance of Section 235(2) CrPC:

305. Now  we  shall  proceed  to  sentencing.   A

submission  was  raised  that  provisions  of  Section  235(2)

CrPC was not complied with.  The said provision reads as

follows:

“235. Judgment of acquittal or conviction

(1) …..

(2) If the accused is convicted, the Judge shall, unless  he  proceeds  in  accordance  with  the provisions of  Section 360, hear  the accused on the question of sentence, and then pass sentence on him according to law.”

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306. While discussing Section 235(2) CrPC, this Court,

in Santa Singh v. State of Punjab120, observed as follows:

“4.  ….  the  hearing  contemplated  by  Section 235(2)  is  not  confined  merely  to  hearing  oral submissions,  but it  is  also  intended to  give  an opportunity to the prosecution and the accused to  place  before  the  court  facts  and  material relating to various factors bearing on the question of  sentence  and if  they are  contested by either side, then to produce evidence for the purpose of establishing the same.”  

307. A  three-Judge Bench in  Dagdu and others v.

State of Maharashtra121 considered the object and scope

of Section 235(2) CrPC and held that:

“79. But we are unable to read the judgment in Santa Singh as laying down that the failure on the part of the Court, which convicts an accused, to  hear  him on  the  question  of  sentence  must necessarily entail a remand to that Court in order to  afford  to  the  accused  an  opportunity  to  be heard on the question us sentence. The Court, on convicting an accused, must unquestionably hear him on the qustion of sentence. But if,  for any reason, it omits to do so and the accused makes a grievance of  it  in the  higher  court,  it  would be open to that Court to remedy the breach by giving a  hearing  to  the  accused  on  the  question  of sentence.  That  opportunity  has  to  be  real  and effective, which means that the accused must be permitted to adduce before the Court all the data which he  desires  to  adduce on the  question of sentence.  The  accused  may  exercise  that  right either  by  instructing  his  counsel  to  make  oral

120  (1976) 4 SCC 190 121  (1977) 3 SCC 68

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submissions to the Court or he may, on affidavit or  otherwise,  place  in  writing  before  the  Court whatever  he  desires  to  place  before  it  on  the question  of  sentence.  The  Court  may,  in appropriate cases, have to adjourn the matter in order  to  give  to  the  accused  sufficient  time  to produce  the  necessary  data  and  to  make  his contentions  on  the  question  of  sentence.  That, perhaps,  must  inevitably  happen  where  the conviction  is  recorded  for  the  first  time  by  a higher court.

80.  Bhagwati,  J.  has  observed in his  judgment that care ought to be taken to ensure that  the opportunity  of  a  hearing  on  the  question  of sentence  is  nut  abused  and  turned  into  an instrument  for  unduly  protracting  the proceedings. The material on which the accused proposes to rely may therefore, according to the learned  Judge,  be  placed  before  the  Court  by means of an affidavit. Fazal Ali, J., also observes that the courts must be vigilant to exercise proper control over their proceedings, that the accused must not  be permitted to adopt dilatory tactics under the cover of the new right and that what Section 235(2) contemplates is a short and simple opportunity  to  place  the  necessary  material before the Court.  These observations show that for a proper and effective implementation of the provision  contained  in  Section 235(2),  it  is  not always  necessary  to  remand  the  matter  to  the court which has recorded the conviction. The fact that  in  Santa  Singh this  Court  remanded  the matter to the Sessions Court does not spell out the ratio of the judgment to be that in every such case  there  has  to  be  a  remand.  Remand is  an exception, not the rule, and ought therefore to be avoided  as  far  as  possible  in  the  interests  of expeditious, though fair, disposal of cases.”

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308. Mr. Raju Ramachandran, learned amicus curiae,

submitted that the sentence passed by the trial court that

has been confirmed by the High Court ought to be set aside

as  they  have  not  followed  the  fundamental  norms  of

sentencing  and  have  not  been  guided  by  the  paramount

beacons of legislative policy discernible from Section 354(3)

and Section 235(2) CrPC. It is urged by him that the import

of  Section 235 CrPC is not only to hear the submissions

orally but also to afford an opportunity to the prosecution

and  the  defence  to  place  the  relevant  material  having

bearing on the question of sentence.  Learned amicus curiae

would submit that the trial court as well as the High Court

has failed to put any of the accused persons to notice on the

question  of  imposition  of  death  sentence;  that  sufficient

time was not  granted to  reflect  on the  question of  death

penalty;  that  none of  the  accused persons were heard in

person;  that the learned trial Judge has failed to elicit those

circumstances of the accused which would have a bearing

on the question of sentence, especially the mitigating factors

in a case where death penalty is imposed; that no separate

reasons were ascribed for the imposition of death penalty on

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each of the accused; and that it was obligatory on the part

of  the  learned  trial  Judge  to  individually  afford  an

opportunity to the accused persons.  Learned amicus curiae

would submit that the learned trial Judge has pronounced

the  sentence  in  a  routine  manner  which  vitiates  the

sentence inasmuch as the solemn duty of  the sentencing

court has not been kept in view. Mr. Ramachandran had

emphatically  put  forth  that  denial  of  an  individualized

sentencing process results in the denial of Articles 14 and

21 of the Constitution of India. Mr. Luthra, learned senior

counsel  for  the  respondent-State,  submitted  that  the

learned  trial  Judge  had  heard  the  accused  persons  and

there has been compliance with Section 235(2)  CrPC and

the High Court has appositely concurred with the same.

309. Be it stated, after hearing the learned counsel for

the both sides and the learned amicus curiae, the Court, on

03.02.2017, passed the following order:

“After the argument for the accused persons by Mr.  M.L.  Sharma  and  Mr.  A.P.  Singh,  learned counsel were advanced, we thought it appropriate to  hear  the  learned  friends  of  the  Court  and, accordingly,  we  have  heard  Mr.  Raju Ramachandran and Mr. Sanjay R. Hegde, learned

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senior counsel.  It is worthy to note here that Mr. Hegde,  learned  senior  counsel  argued  on  the sustainability of the conviction on many a ground and submitted a written note of submission. Mr. Ramachandran,  learned  senior  counsel,  inter alia,  emphasized  on  the  aspect  of  sentence imposed  by  the  trial  court  which  has  been confirmed  under  Section  366  Cr.P.C.  While arguing  with  regard  to  the  imposition  of  the capital punishment on the accused persons, one of  the main submissions of  Mr.  Ramachandran was  that  neither  the  trial  court  nor  the  High Court has followed the mandate enshrined under Section 235(2) of the Code of Criminal Procedure. Section 235(2) Cr.P.C. reads as follows:-  

“235. Judgment of acquittal or conviction.- (1)  After  hearing  arguments  and  points  of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the  Judge  shall,  unless  he  proceeds  in accordance  with  the  provisions  of  section 360,  hear  the  accused  on  the  question  of sentence,  and  then  pass  sentence  on  him according to law.”

Referring to  the  procedure  adopted by the trial  court,  it  was urged by Mr.  Ramachandran that the learned trial Judge had not considered the aggravating and mitigating circumstances, as are  required  to  be  considered  in  view  of  the Constitution Bench decision in Bachan Singh vs. State of Punjab122, and further there has been a failure of the substantive law, inasmuch as there has  been  weighing  of  the  mitigating  or  the aggravating  circumstances  in  respect  of  each individual  accused.  Learned  senior  counsel contended  that  Section  235(2)  Cr.P.C.  is  not  a mere formality and in a case when there are more than one accused, it is obligatory on the part of the  learned  trial  Judge  to  hear  the  accused

122 (1980) 2 SCC 684

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individually on the question of sentence and deal with him. As put forth by Mr. Ramachandran, the High Court has also failed to take pains in that regard.  To  bolster  his  submission,  he  has commended us to the authority in  Santa Singh vs.  The  State  of  Punjab.  In  the  said  case, Bhagwati,  J.  dealt  with the anatomy of  Section 235 Cr.P.C., the purpose and purport behind it and, eventually, came to hold that:-

“Law  strives  to  give  them  social  and economic  justice  and  it  has,  therefore, necessarily to be weighted in favour of the weak and the exposed. This is the new law which  judges  are  now  called  upon  to administer and it is, therefore, essential that they  should  receive  proper  training  which would  bring  about  an  orientation  in  their approach and outlook, stimulate sympathies in  them for  the  vulnerable  sections  of  the community and inject a new awareness and sense of public commitment in them. They should also be educated in the new trends in  penology  and  sentencing  procedures  so that they may learn to use penal law as a tool  for  reforming  and  rehabilitating criminals and smoothening out the uneven texture  of  the  social  fabric  and  not  as  a weapon, fashioned by law, for protecting and perpetuating the hegemony of one class over the other. Be that as it may, it is clear that the learned Sessions Judge was not aware of the provision in section 235(2) and so also was the lawyer of the appellant in the High Court  unaware  of  it.  No  inference  can, therefore, be drawn from the omission of the appellant  to  raise  this  point,  that  he  had nothing to Say in regard to the sentence and that consequently no prejudice was caused to him.”

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Thereafter,  the  learned  Judge  opined  that non-compliance  goes  to  the  very  root  of  the matter  and  it  results  in  vitiating  the  sentence imposed.  Eventually,  Bhagwati,  J.  set  aside the sentence of death and remanded the case to the court  of  session  with  a  direction  to  pass appropriate sentence after giving an opportunity to the appellant therein to be heard in regard to the question of sentence in accordance with the provision contained in Section 235(2) Cr.P.C. as interpreted by him.  

In  the  concurring  opinion,  Fazal  Ali,  J., ruled thus:-

“The last point to be considered is the extent and  import  of  the  word  "hear"  used  in Section  235(2)  of  the  1973  Code.  Does  it indicate, that the accused should enter into a  fresh  trial  by  producing  oral  and documentary  evidence  on  the  question  of the sentence which naturally will  result in further  delay  of  the  trial?  The  Parliament does not appear to have intended that the accused should adopt dilatory tactics under the  cover  of  this  new  provision  but contemplated  that  a  short  and  simple opportunity has to be given to the accused to  place  materials  if  necessary  by  leading evidence  before  the  Court  bearing  on  the question  of  sentence  and  a  consequent opportunity  to  the  prosecution  to  rebut those materials.  The Law Commission was fully  aware  of  this  anomaly  and  it accordingly suggested thus:  

"We  are  aware  that  a  provision  for  an opportunity  to  give  evidence  in  this respect may necessitate an adjournment; and to avoid delay adjournment, for the purpose  should,  ordinarily  be  for  not more than 14 days. It may be so provided

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in  the  relevant  clause.   It  may  not  be practicable to keep up to the time-limit suggested by the Law Commission with mathematical accuracy but  the  Courts must  be  vigilant  to  exercise  proper control over the proceedings so that the trial is not unavoidably or unnecessarily delayed.”  

The  said  decision  was  considered  by  a three-Judge Bench in Dagdu and Others vs. State of Maharashtra (1977) 3 SCC 68. The three-Judge Bench  referred  to  the  law  laid  down  in  Santa Singh  (supra)  and  opined  that  the  mandate  of Section 235 (2) Cr.P.C. has to be obeyed in letter and  spirit.  However,  the  larger  Bench  thought that  Santa Singh (supra) does not lay down as a principle  that  failure  on  the  part  of  the  Court which convicts an accused, to hear him on the question  of  sentence  must  necessarily  entail  a remand  to  that  Court  in  order  to  afford  the accused  an  opportunity  to  be  heard  on  the question  of  sentence.  Chandrachud,  J.  (as  His Lordship then was) speaking for the Bench ruled thus:-

“The Court, on convicting an accused, must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open to that Court to remedy the breach by giving a hearing to the accused on the question of sentence.  That  opportunity  has  to  be  real and effective, which means that the accused must  be  permitted  to  adduce  before  the Court  all  the  data  which  he  desires  to adduce  on  the  question  of  sentence.  The accused  may  exercise  that  right  either  by instructing  his  counsel  to  make  oral submissions  to  the  Court  or  he  may,  on affidavit or otherwise, place in writing before

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the  Court  whatever  he  desires  to  place before  it  on the  question of  sentence.  The Court  may,  in  appropriate  cases,  have  to adjourn the matter  in order to give  to the accused  sufficient  time  to  produce  the necessary data and to make his contentions on the question of sentence. That, perhaps, must  inevitably  happen  where  the conviction is recorded for the first time by a higher court.”

It  is  seemly  to  note  here  that  Mr. Ramachandran  has  also  commended  us  to  a three-Judge Bench decision in Malkiat Singh and Others  vs.  State  of  Punjab (1991)  4  SCC  341, wherein  the  three-Judge  Bench  ruled  that sufficient time has to be given to the accused or the prosecution on the question of sentence, to show the grounds on which the prosecution may plead  or  the  accused  may  show  that  the maximum  sentence  of  death  may  be  the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be.  

Learned senior counsel has also drawn our attention to a two-Judge Bench decision in Ajay Pandit alias Jagdish Dayabhai Patel and Another vs.  State  of  Maharashtra (2012)  8  SCC  43, wherein  the  matter  was  remanded  to  the  High Court.  Mr.  Ramachandran  has  drawn  our attention to paragraph 47 of the said authority. It reads as follows:-

“Awarding  death sentence  is  an exception, nor the rule, and only in the rarest of rare cases,  the  court  could  award  death sentence.  The  state  of  mind  of  a  person awaiting  death  sentence  and  the  state  of mind of a person who has been awarded life sentence may not be the same mentally and psychologically.  The  court  has  got  a  duty

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and obligation to elicit relevant facts even if the accused has kept totally silent in such situations.  In  the  instant  case,  the  High Court  has  not  addressed  the  issue  in  the correct  perspective  bearing  in  mind  those relevant  factors,  while  questioning  the accused and,  therefore,  committed a gross error  of  procedure  in  not  properly assimilating and understanding the purpose and object behind Section 235(2) CrPC.”

Having considered all the authorities, we find that there are two modes, one is to remand the matter or  to  direct  the  accused  persons  to  produce necessary  data  and  advance  the  contention  on the question of sentence. Regard being had to the nature  of  the  case,  we  think  it  appropriate  to adopt the  second  mode.  To elaborate, we would like to give opportunity before conclusion of the hearing to the accused persons to file affidavits along  with  documents  stating  about  the mitigating circumstances. Needless to say, for the said  purpose,  it  is  necessary  that  the  learned counsel, Mr. M.L. Sharma and his associate Ms. Suman and Mr. A.P. Singh and his associate Mr. V.P. Singh should be allowed to visit the jail and communicate with the accused persons and file the requisite affidavits and materials.   

At this juncture, Mr. M.L. Sharma, learned counsel has submitted that on many a occasion, he has faced difficulty as he had to wait in the jail to have a dialogue with his clients. Mr. Sidharth Luthra,  learned  senior  counsel  has  submitted that if this Court directs, Mr. M.L. Sharma and Mr.  A.P.  Singh,  learned  counsel  and  their associate Advocates can visit the jail at 2.45 p.m. each day and they shall be allowed to enter the jail  between  3.00  p.m.  to  3.15  p.m.  and  can spend time till  5.00 p.m.  Needless to  say,  they can  commence  their  visits  from  7th  February, 2017,  and file  the  necessary separate  affidavits

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and  documents.  After  the  affidavits  are  made ready  by  the  learned  counsel  for  the  accused persons, they can intimate about the same to Mr. Luthra, who in his turn, shall intimate the same to  the  Superintendent  of  Jail,  who  shall  make arrangement for a Notary so that affidavits can be notarized,  treating  this  as  a  direction  of  this Court. Needless to say, while the learned counsel will be discussing with the accused persons, the meeting shall  be  held  in  separate  rooms inside the  jail  premises  so  that  they  can  have  a  free discussion with the accused persons. Needless to say,  they  can  reproduce  in  verbatim  what  the accused  persons  tell  them in  the  affidavit.  The affidavits shall be filed by 23rd February, 2017.

We  may  hasten  to  add  that  after  the affidavits come on record, a date shall be fixed for hearing  of  the  affidavits  and  pertaining  to quantum of sentence if, eventually, the conviction is  affirmed.  The  learned  counsel  for  the prosecution,  needless  to  say,  is  entitled  to  file necessary  affidavits  with  regard  to  the circumstances or reasons for  sustenance of  the sentence.  Additionally,  the  prosecution  is  given liberty to put forth in the affidavit any refutation, after  the copies of  the affidavits  by the learned counsel  for  the  accused  persons  are  served  on him.  For  the  said  purpose,  a  week's  time  is granted.  Needless  to  say,  the  matter  shall  be heard on sentence, after affidavits from both the sides are  brought  on record.  The date  shall  be given at 2.00 p.m. on 6th February, 2017. For the present,  the  matter  stands  adjourned  to  4th February, 2017, for hearing.  

Let a copy of  the order be handed over to Mr. Sidharth Luthra by 4th February, 2017, who shall get it translated in Hindi and give it to the Superintendent  of  Jail,  who  in  his  turn,  shall hand  over  it  to  the  accused  persons  and,

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simultaneously, explain the purport and effect of the order.  

The Superintendent of  Jail  is also directed to submit a report with regard to the conduct of the accused persons while they are in custody.”

310. After  passing  of  the  said  order,  the  hearing

continued  and  on  13.02.2017,  the  following  order  was

passed:

“Mr.  A.P.  Singh,  learned  counsel  has concluded his arguments. After his conclusion of the arguments, as per our order, dated 3.2.2017, affidavits are required to be filed by 23.2.2017. Let  the  affidavits  be  filed  by  that  date.  Mr. Siddharth  Luthra,  learned  senior  counsel appearing for the State shall file the affidavit by 2nd  March,  2017.  Registry  is  directed  to  hand over  copies  of  the  affidavits  to  Mr.  K. Parameshwar, learned counsel assisting Mr. Raju Ramachandran, learned senior counsel  and Mr. Anil  Kumar  Mishra-I,  learned  counsel  assisting Mr. Sanjay Kumar Hegde, learned senior counsel (Amicus Curiae).  

Mr.  Luthra,  learned  senior  counsel  shall make arrangements for visit of Mr. A.P. Singh and Mr. Manohar Lal Sharma, learned counsel for the petitioners  even  on  Saturday  and  sunday.  He shall intimate our order to the jail authorities so that they can arrange the visit of Mr. A.P. Singh and Mr. Manohar Lal Sharma on Saturday and Sunday.  

Let  the  matter  be  listed  on  3.3.2017  for hearing on the question of sentence, aggravating and mitigating circumstances on the basis of the materials brought on record by learned counsel for the parties.”

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311. In pursuance of the aforesaid order, affidavits on

behalf of the appellants have been filed. It is necessary to

note that the learned counsel for the appellants addressed

the Court on the basis of affidavits on 06.03.2017 and the

order passed on that date is extracted hereunder:

“Mr.  A.P.  Singh,  learned  counsel  has  filed affidavits on behalf of the three accused persons, namely, Pawan Kumar Gupta, Vinay Sharma and Akshay  Kumar  Singh  and  Mr.  M.L.  Sharma, learned counsel has filed the affidavit on behalf of Mukesh.  Be  it  noted,  Mr.  A.P.  Singh,  learned counsel  has  filed  the  translated  version  of  the affidavits and Mr. Manohar Lal Sharma, learned counsel has filed the original version in Hindi  as well as the translated one.  

At this juncture, Mr. Raju Ramachandran, learned senior counsel who has been appointed as Amicus Curiae to assist the Court, submitted that two aspects are required to be further probed to  comply  with  the  order  dated  3.2.2017 inasmuch as this Court has taken the burden on itself for compliance of Section 235(2) of the Code of  Criminal  Procedure.  Learned  senior  counsel would point out that the affidavit filed by Mukesh does  not  cover  many  aspects,  namely, socio-economic  background,  criminal antecedents, family particulars, personal habits, education, vocational skills, physical health and his conduct in the prison.

Mr.  Manohar Lal  Sharma, learned counsel submits  that  a  report  was  asked  for  from  the Superintendent of Jail with regard to the conduct of the accused persons while they are in custody,

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but the same has not directly been filed by the Superintendent of Jail.  

Mr.  Siddharth  Luthra,  learned  senior counsel  for  the  respondent-State,  would,  per contra, contend that he has filed the affidavit and the  affidavit  contains  the  report  of  the Superintendent of Jail.

In  our  considered  opinion,  the Superintendent  of  Jail  should  have  filed  the report with regard to the conduct of the accused persons since they are in custody for almost four years.  That  would  have  thrown  light  on  their conduct.  Let  the  report  with  regard  to  their conduct be filed by the Superintendent of Jail in a sealed cover in the Court on the next date of hearing.  

As  far  as  the  affidavit  filed  by  Mukesh  is concerned,  Mr.  Sharma,  learned  counsel  stated that he will keep the aspects which are required to  be  highlighted  in  mind  and  file  a  further affidavit within a week hence.  

The direction issued on the earlier occasion with  regard  to  the  visit  of  jail  by  the  learned counsel for the parties shall remain in force till the next date of hearing.  

Let  the  matter  be  listed  at  2.00  p.m.  on 20.3.2017.  The  report  of  the  Superintendent  of Jail,  as  directed  hereinabove,  shall  be  filed  in Court on that date.”

312. Thereafter, the matter was heard on 20.03.2017

and the following order came to be passed:

“Mr. M.L. Sharma, learned counsel has filed an additional affidavit of the petitioner, Mukesh and  Mr.  A.P.  Singh,  learned  counsel  has  filed

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affidavits  for  the  petitioners,  Pawan  Kumar Gupta, Vinay Kumar Sharma, and Akshay Kumar Singh.  

Mr.  Siddharth  Luthra,  learned  senior counsel  has  produced  two  sealed  covers containing  the  reports  submitted  by Superintendent of the Central Jail No.2 and the Superintendent of Central Jail No.4 in respect of the petitioners who are in the respective jails. Two sealed  covers  are  opened  in  presence  of  the learned counsel for the parties. They be kept on record.

Registry is directed to supply a copy of the aforesaid  reports  to  Mr.  M.L.  Sharma  and  Mr. A.P.  Singh,  learned  counsel  for  the  petitioners. Registry shall also supply a copy thereof to Mr. K. Parameshwar, learned counsel assisting Mr. Raju Ramachandran, learned Amicus Curiae and Mr. Anil  Kumar  Mishra-I,  learned  counsel  assisting Mr. Sanjay R. Hegde, learned Amicus Curiae. A copy of the report shall  also be handed over to Ms.  Supriya  Juneja,  learned  counsel  assisting Mr. Siddharth Luthra, learned senior counsel, for he does not have a copy as the reports have been produced before us in the sealed covers.  

Mr.  Siddharth  Luthra,  learned  senior counsel prays for and is granted three days time to file a status report and argue the matter.”

Delineation as regards the imposition of sentence

313. Be it  noted, we have heard the learned counsel

appearing  for  the  parties,  Mr.  Luthra,  learned  senior

counsel for the respondent-State,  Mr. Ramachandran and

Mr. Hegde on the question of sentence.  Before we advert to

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the  principles  for  imposition  of  sentence,  we  think  it

appropriate to deal with the affidavits filed by the accused.

For  the  sake  of  convenience,  it  is  necessary  to  make  a

summary of the affidavits.

314. Accused Mukesh, A-2, filed his statement, written

in his own hand-writing in Hindi, denying his involvement

in the occurrence and pleading innocence. He stated that on

17.12.2012,  he  was  picked  up from his  house  at  Karoli,

Rajasthan and brought to Delhi where the police tortured

him and threatened to kill him. Therefore, he acted as per

the  direction of  the  police  and V.K.  Anand,  Advocate.  He

further stated that he is uneducated and poor, but not a

criminal and if he is acquitted, he would go back to Karoli,

Rajasthan and would take care of his parents.

315. Accused  Akshay  Kumar  Singh,  A-3,  has  stated

that  he  hails  from  a  naxal  affected  area  in  District

Aurangabad,  Bihar  and  due  to  poverty,  he  could  not

continue his studies beyond 9th class. He has stated that his

aged father Shri Saryu Singh and mother, Smt. Malti Devi,

are  dependent  on  him.  He  has  further  stated  that  he  is

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married to Punita Devi since 2010 and they have a son, now

aged about six years. He further stated that due to poverty

and lack of adequate opportunity in home town, he came to

Delhi in the month of November 2012 to earn his livelihood.

To maintain his dependants which include his parents, wife

and child, he started working as a cleaner in the concerned

bus at a wage of Rs.50/- per day. He reiterated his plea of

alibi  asserting  that  he  had  left  Delhi  on  15.12.2012  in

Mahabodhi  Express  accompanied  by  his  sister-in-law,

Sarita  Devi,  and  went  to  his  native  place  Karmalahang

where  he  was  arrested.  He  further  stated  that  after  his

confinement  in Tihar  Jail,  he  has been maintaining good

behaviour and is working hard as a labourer in the prison to

maintain his family.

316. Accused  Vinay  Sharma,  A-4,  in  his  affidavit

stated  that  he  was  born  in  Kapiya  Kalan,  Tehsil  Rudra

Nagar,  District  Basti,  Uttar Pradesh and that his parents

used to work as labourers and that his family is very poor.

The  accused  stated  that  he  used  to  take  care  of  his

grandfather who was a religious saint and up to July, 2012,

he was studying at his native place in Uttar Pradesh and

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only after July, 2012, he came to Delhi to pursue his further

studies. He has stated that he got himself admitted to the

University of Delhi, School of Open Learning, Delhi and to

earn his livelihood, he worked as a part-time instructor in

gym and also as a seasonal waiter in hotels and marriage

ceremonies at night. Accused Vinay Sharma further stated

that he has to take care of his ailing parents and also his

younger  sisters  and  younger  brother,  who  are  totally

dependent on him. In his affidavit, he reiterated his plea of

alibi asserting that on the fateful day, he had participated in

the Christmas celebration and was enjoying there with his

family.  The  accused  has  further  stated  that  he  has  no

criminal  antecedents  and  after  his  confinement  in  Tihar

Jail,  he  has  maintained  good  behaviour  and  has  also

organized  various  musical  programmes and his  paintings

are displayed in Tihar Jail.

317. Accused  Pawan  Gupta,  A-5,  filed  his  affidavit

stating that  he comes from a very poor  family  where his

father  used to  sell  fruits  on the  road for  their  living.  He

further stated that he is a resident of Cluster Jhuggi Basti

and was assisting his father in selling fruits on a cart. The

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accused also  illustrated the  ailing  condition of  his  family

stating that his parents are heart patients and his mother is

a handicapped person suffering from BP and thyroid.  He

also  stated  that  his  younger  sister,  Dimple  Gupta,  was

under depression on account of the false implication of her

brother  in  the  present  case  and  could  not  tolerate

humiliation by the society and she has committed suicide

on 09.02.2013.  Apart  from that,  he has to look after  his

dependant parents and two other sisters, one married and

the other unmarried and aged 17 years, and one younger

brother.  On behalf  of  accused Pawan Gupta,  fervent  plea

was  made  that  he  has  no  prior  criminal  antecedent  and

after being confined to Central Jail,  Tihar, he is trying to

reform himself into a better person.  

318. Mr.  Ramachandran,  learned  amicus  curiae,

criticized the sentence, placed reliance on Bachan Singh v.

State of Punjab123 and submitted that the trial court and

the High Court have committed the error of not applying the

doctrine of  equality which prescribes similar treatment to

similar persons and stated that the Court in Bachan Singh

123  (1980) 2 SCC 684

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(supra) has categorically held that the extreme penalty can

be inflicted only in gravest cases of extreme culpability; in

making  the  choice  of  sentence,  in  addition  to  the

circumstances of the offence, due regard must be paid to

the  circumstances  of  the  offender  also;  and  that  the

mitigating circumstances referred therein are undoubtedly

relevant  and  must  be  given  great  weight  in  the

determination  of  sentence.  Further  placing  reliance  on

Machhi Singh v.  State of  Punjab124,  it  is  submitted by

learned amicus curiae that in the said case, the Court held

that  a  balance  sheet  of  the  aggravating  and  mitigating

circumstances  should  be  drawn  up  and  the  mitigating

circumstances should be accorded full weightage and a just

balance  should  be  struck  between  the  aggravating  and

mitigating circumstances.  He further pointed out number

of  decisions  wherein  this  Court  has  given  considerable

weight to the circumstances of the criminal and commuted

the sentence to life imprisonment.  

319. Mr.  Ramachandran  further  urged  that  in  the

present  case,  the  decision in  Bachan Singh (supra)  was

124  (1983) 3 SCC 470

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completely disregarded and the trial court, while sentencing

the  accused,  only  placed  emphasis  on  the  brutal  and

heinous  nature  of  the  crime  and  the  mitigating  factors

including the possibility of  reform and rehabilitation were

ruled out on the basis of the nature of the crime and not on

its  own  merits.  It  is  further  contended  by  him  that  in

Sangeet  and  another  v.  State  of  Haryana125 and

Shankar Kisanrao Khade v.  State of  Maharashtra126,

the decisions,  i.e.,  Shiv v. High Court of Karnataka127,

B.A.Umesh  v.  Registrar  General,  High  Court  of

Karnataka128 and Dhananjoy Chaterjee v. State of West

Bengal129, relied upon by the Special Public Prosecutor and

the High Court, have been doubted by this Court.  

320. Learned amicus  curiae  has  further  propounded

that  sentencing  and  non-consideration  of  the  mitigating

circumstances  are  violative  of  Articles  14  and  21  of  the

Constitution.   It  is  his  submission that  the prosecution’s

argument on aggravating circumstances gets buttressed by

the  material  on  record  while  the  plea  of  mitigating

125  (2013) 2 SCC 452 126  (2013) 5 SCC 546 127  (2007) 4 SCC 713 128  (2011) 3 SCC 85 129  (1994) 2 SCC 220

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circumstances  rests  solely  on  arguments  and  this

imbalance is a serious violation of the doctrine of fairness

and  reasonableness  enshrined  in  Article  14  of  the

Constitution; that there should be a fair and principle-based

sentencing  process  in  death  penalty  cases  by  which  a

genuine and conscious attempt is made to investigate and

evaluate the circumstances of the criminal; that the fair and

principled approaches are facets of Article 14; and that if

the enumeration and evaluation of mitigating factors are left

only to the accused or his counsel and the Court does not

accord a principle-based treatment, the imposition of death

penalty will  be rendered the norm and not the exception,

which is  an inversion of  the  Bachan Singh (supra)  logic

and a serious violation of Article 21 of the Constitution.  

321. Mr. Ramachandran submitted that the trial court

and  the  High  Court  failed  to  pay  due  regard  to  the

mitigating  factors;  that  the  courts  have  committed  the

mistake of rejecting the mitigating factors by reasoning that

it may not be sufficient for awarding life sentence; and that

the  courts  have  not  considered  all  the  mitigating  factors

cumulatively to arrive at the conclusion whether the case

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fell within the rarest of rare category.  He has referred to the

Constitution  Bench  decision  in  Triveniben  v.  State  of

Gujarat130 wherein  Shetty,  J.  in  his  concurring  opinion,

opined that death sentence cannot be given if there is any

one mitigating circumstance in favour of the accused and all

circumstances  of  the  case  should  be  aggravating  and

submitted  that  this  line  of  judicial  thought  has  been

completely ignored by the High Court and the trial court.  

322. Learned amicus curiae further contended that the

attribution of individual role with respect to the iron rod,

which was a crucial consideration in convicting the accused

under Section 302 IPC, was not considered by the trial court

or the High Court in the sentencing process and stressed

that when life imprisonment is the norm and death penalty

the exception, the lack of individual role has tobe regarded

as a major mitigating circumstance.  In this regard, reliance

has been placed by him on  Karnesh Singh v.  State of

U.P.131, Ronny v. State of Maharashtra132, Nirmal Singh

v. State of Haryana133 and Sahdeo v. State of U.P134.   

130  (1989) 1 SCC 678 131  AIR 1968 SC 1402 132  (1998) 3 SCC 625 133  (1999) 3 SCC 670 134  (2004) 10 SCC 682

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323. Mr.  Ramachandran  has  also  contended  that

subsequent  to  the  pronouncement  in  Machhi  Singh

(supra), there are series of decisions by this Court where the

Court  has  given  considerable  weight  to  the  concept  of

reformation and rehabilitation and commuted the sentence

to  life  imprisonment.   According  to  him,  young  age  is  a

mitigating factor and this Court has taken note of the same

in  Raghubir  Singh  v.  State  of  Haryana135,  Harnam

Singh  v.  State  of  Uttar  Pradesh136,  Amit  v.  State  of

Maharashtra137,  Rahul  v.  State  of  Maharashtra138,

Rameshbhai Chandubhai Rathod v. State of Gujarat139,

Santosh  Kumar  Bariyar  v.  State  of  Maharashtra140,

Sebastian v. State of Kerala141,  Santosh Kumar Singh

(supra), Rameshbhai Chandubhai Rathod II v. State of

Gujarat142,  Amit v. State of Uttar Pradesh143 and  Lalit

Kumar Yadav v. State of Uttar Pradesh144.   That apart, it

is urged by him that when the crime is not pre-meditated,

135 (1975) 3 SCC 37 136 (1976) 1 SCC 163 137 (2003) 8 SCC 93 138 (2005) 10 SCC 322 139 (2009) 5 SCC 740 140 (2009) 6 SCC 498 141 (2010) 1 SCC 58 142 (2011) 2 SCC 764 143 (2012) 4 SCC 107 144 (2014) 11 SCC 129

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the  same becomes a mitigating factor  and that  has been

taken note of by this Court in the authorities in  Akhtar v

State of Uttar Pradesh145,  Raju v. State of Haryana146

and Amrit Singh v. State of Punjab147.    

324. Learned amicus curiae  would further  urge  that

when  the  criminal  antecedents  are  lacking  and  the

prosecution  has  not  been  able  to  say  about  that  the

appellants deserve imposition of lesser sentence.  For the

said purpose, he has commended us to the authorities in

Nirmal Singh (supra),  Raju v. State of Haryana (supra),

Amit v. State of Maharashtra (supra),  Surender Pal v.

State of Gujarat148, Rameshbhai Chandubhai Rathod II

(supra),  Amit v. State of Uttar Pradesh (supra),  Anil v.

State  of  Maharashtra149 and  Lalit  Kumar  Yadav  v.

State of Uttar Pradesh150.  

325. Learned  senior  counsel  has  emphasized on the

reform, rehabilitation and absence of any continuing threat

to  the  collective  which  are  factors  to  be  taken  into

145 (1999) 6 SCC 60 146 (2001) 9 SCC 50  147 (2006) 12 SCC 79 148 (2005) 3 SCC 127 149 (2014) 4 SCC 69 150 (2014) 11 SCC 129

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consideration  for  the  purpose  of  commutation  of  death

penalty to life imprisonment.  In this regard, learned senior

counsel has drawn inspiration from the decisions in Ronny

(supra), Nirmal Singh (supra), Bantu v. State of Madhya

Pradesh151,  Lehna  (supra),  Rahul  (supra),  Santosh

Kumar Bariyar (supra),  Santosh Kumar Singh (supra),

Rajesh  Kumar  v.  State152,  Amit  v.  State  of  Uttar

Pradesh (supra), Ramnaresh v. State of Chhattisgarh153,

Sandesh v.  State of  Maharashtra154 and  Lalit  Kumar

Yadav (supra).

326. Mr. Ramachandran has also submitted that the

present case should be treated as a special category as has

been  held  in  Swamy  Shradhananda  (2)  v.  State  of

Karnataka155 and the recent Constitution Bench decision

in Union of India v. Sriharan156.  It is urged by him that in

many a case, this Court has exercised the said discretion.

Learned  senior  counsel  in  that  regard  has  drawn  our

attention  to  the  pronouncements  in  Rameshbhai

Chandubhai  Rathod  (supra),  Neel  Kumar  v.  State  of 151 (2001) 9 SCC 615 152 (2011) 13 SCC 706 153 (2012) 4 SCC 257 154 (2013) 2 SCC 479 155 (2008) 13 SCC 767 156 (2016) 7 SCC 1

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Haryana157,  Ram  Deo  Prasad  v.  State  of  Bihar158,

Chhote Lal v.State of Madhya Pradesh159,  Anil v. State

of Maharashtra (supra),  Rajkumar  (supra)  and  Selvam

v. State160.  

327. Mr. Hegde, learned friend of the Court, canvassed

that the theory of reformation cannot be ignored entirely in

the obtaining factual matrix in view of the materials brought

on  record.  Learned  senior  counsel  would  contend  that

imposition of death penalty would be extremely harsh and

totally unwarranted inasmuch as the case at hand does not

fall in the category of rarest of rare case.  That apart, it is

contended by him that the entire incident has to be viewed

from a different  perspective,  that  is,  the accused persons

had the bus in their control, they were drunk, and situation

emerged where the poverty-stricken persons felt empowered

as  a  consequence  of  which  the  incident  took  place  and

considering  the  said  aspect,  they  may  be  imposed

substantive  custodial  sentence  for  specific  years  but  not

death penalty. Additionally, it is submitted by him that in

157 (2012) 5 SCC 766 158 (2013) 7 SCC 725 159 (2013) 9 SCC 795 160 (2014) 12 SCC 274

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the  absence  of  pre-meditation  to  commit  a  crime  of  the

present  nature,  it  would  not  invite  the  harshest

punishment.

328. Mr. Luthra, learned senior counsel, has referred

to the reports of the Superintendent of Jail that the conduct

of  the  accused  persons  in  the  jail  has  been  absolutely

non-satisfactory  and  non-cooperative  and  the  diabolic

nature of  the crime has shaken the collective conscience.

According  to  him,  the  diabolic  nature  of  the  crime  has

nothing  to  do with poverty,  for  it  was not  committed for

alleviation of poverty but to satiate their sexual appetite and

enormous  perversity.   He  would  submit  that  this  would

come in the category of rarest of the rare cases in view of the

law  laid  down  in  Sevaka  Perumal  v.  State  of  Tamil

Nadu161,  Kamta Tiwari v. State of Madhya Pradesh162,

State of U.P. v. Satish163,  Holiram Bordoloi v. State of

Assam164,  Ankush  Maruti  Shinde  v.  State  of

161 (1991) 3 SCC 471 162 (1996) 6 SCC 250 163 (2005) 3 SCC 114 164 (2005) 3 SCC 793

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Maharashtra165,  Sundar v. State166 and  Mohfil Khan v.

State of Jharkhand167.

329. It is also submitted by Mr. Luthra that mitigating

circumstances are required to be considered in the light of

the  offence and not alone on the backdrop of age and family

background.  For this purpose, he has relied upon Deepak

Rai  v.  State  of  Bihar168 and  Purshottam  Dashrath

Borate v. State of Maharashtra169.   

330. Mr. Sharma and Mr. Singh, learned counsel for

the  appellants,  would  submit  that  the  conduct  of  the

accused persons shows reformation as there are engaged in

educating themselves and also they have been participating

in affirmative and constructive activities adopted in jail and

so,  death  penalty  should  not  be  affirmed  and  should  be

commuted.  Mr. Sharma, learned counsel appearing for the

accused Mukesh, submits that he is not connected with the

crime  in  question.  It  is  put  forth  that  the  case  at  hand

cannot  be  regarded  as  rarest  of  the  rare  cases  and,

165 (2009) 6 SCC 667 166 (2013) 3 SCC 215 167 (2015) 1 SCC 67 168 (2013) 10 SCC 421 169 (2015) 6 SCC 652

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therefore,  the  maximum  punishment  that  can  be  given

should be for a specific period.

331. Presently,  we  shall  proceed  to  analyse  the

aforesaid aspect.  In Bachan Singh (supra), the Court held

thus:

“(a) The normal rule is that the offence of murder shall  be  punished  with  the  sentence  of  life imprisonment.  The  court  can  depart  from  that rule  and  impose  the  sentence  of  death  only  if there  are  special  reasons  for  doing  so.  Such reasons  must  be  recorded  in  writing  before imposing the death sentence.

(b) While considering the question of sentence to be  imposed  for  the  offence  of  murder  under Section 302 of  the  Penal  Code,  the court  must have  regard  to  every  relevant  circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of  an  exceptionally  depraved  and  heinous character  and  constitutes,  on  account  of  its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence.”

332. In the said case, the Court, after referring to the

authority  in  Furman v.  Georgia170, noted the suggestion

given by the learned counsel about the aggravating and the

mitigating  circumstances.  The  aggravating  circumstances

suggested by the counsel read as follows: 170 33 L Ed 2d 346 : 408 US 238 (1972)

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“Aggravating  circumstances:  A  court  may, however,  in  the  following  cases  impose  the penalty of death in its discretion:

(a)  if  the  murder  has  been  committed  after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c)  if  the murder  is  of  a  member of  any of  the armed forces of the Union or of a member of any police  force  or  of  any  public  servant  and  was committed—

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or  public servant,  as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had  rendered  assistance  to  a  Magistrate  or  a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.”

After reproducing the same, the Court opined:

“Stated broadly, there can be no objection to the acceptance  of  these  indicators  but  as  we  have indicated already,  we would prefer not to fetter judicial  discretion  by  attempting  to  make  an exhaustive enumeration one way or the other.”

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333. Thereafter, the Court referred to the suggestions

pertaining to mitigating circumstances:

“Mitigating circumstances.—In the exercise of its discretion in the above cases, the court shall take into account the following circumstances: (1)  That  the  offence  was  committed  under  the influence  of  extreme  mental  or  emotional disturbance.

(2)  The  age  of  the  accused.  If  the  accused  is young or old, he shall not be sentenced to death.

(3)  The probability  that  the  accused would not commit  criminal  acts  of  violence  as  would constitute a continuing threat to society.

(4)  The  probability  that  the  accused  can  be reformed  and  rehabilitated.  The  State  shall  by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

(5)  That  in  the  facts  and circumstances  of  the case  the  accused believed  that  he  was  morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired  his  capacity  to  appreciate  the criminality of his conduct.”

The Court then observed:

“We will do no more than to say that these are undoubtedly relevant circumstances and must be given  great  weight  in  the  determination  of sentence.”

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334. In the said case, the Court has also held thus:

“It is, therefore, imperative to voice the concern that  courts,  aided  by  the  broad  illustrative guide-lines  indicated  by  us,  will  discharge  the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that  for  persons  convicted  of  murder,  life imprisonment is the rule and death sentence an exception.  A  real  and  abiding  concern  for  the dignity  of  human  life  postulates  resistance  to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases  when  the  alternative  option  is unquestionably foreclosed.”

335. In  Machhi Singh  (supra), a three-Judge Bench

has explained the concept of  ‘rarest of  the rare cases’  by

observing thus:

“The reasons why the community as a whole does not endorse the humanistic approach reflected in ‘death sentence-in-no-case’ doctrine are not far to seek.  In  the  first  place,  the  very  humanistic edifice  is  constructed  on  the  foundation  of ‘reverence for life’  principle.  When a member of the  community  violates  this  very  principle  by killing another member, the society may not feel itself  bound  by  the  shackles  of  this  doctrine. Secondly, it has to be realised that every member of  the  community  is  able  to  live  with  safety without  his  or  her  own  life  being  endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it  suits  their  ends.  Every  member  of  the

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community owes a debt to the community for this protection.”

336. Thereafter, the Court has adverted to the aspects

of  the  feeling  of  the  community  and  its  desire  for

self-preservation and opined that the community may well

withdraw the protection by sanctioning the death penalty.

What has been ruled in this regard is worth reproducing:  

“But the community will not do so in every case. It may do so ‘in the rarest of rare cases’ when its collective  conscience  is  so  shocked  that  it  will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion  as  regards  desirability  or  otherwise  of retaining death penalty.”

337. It is apt to state here that in the said case, stress

was  laid  on  certain  aspects,  namely,  the  manner  of

commission of the murder, the motive for commission of the

murder,  anti-social  or  socially  abhorrent  nature  of  the

crime, magnitude of the crime and personality of the victim

of murder.  

338. After  so  enumerating,  the  propositions  that

emerged from Bachan Singh (supra) were culled out which

are as follows:

“The following propositions emerge from  Bachan Singh case:

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“(i)  The  extreme  penalty  of  death  need  not  be inflicted  except  in  gravest  cases  of  extreme culpability.

(ii)  Before  opting  for  the  death  penalty  the circumstances of the ‘offender’ also require to be taken  into  consideration  along  with  the circumstances of the ‘crime’.

(iii)  Life  imprisonment  is  the  rule  and  death sentence is  an exception.  In other  words death sentence  must  be  imposed  only  when  life imprisonment  appears  to  be  an  altogether inadequate  punishment  having  regard  to  the relevant  circumstances  of  the  crime,  and provided, and only provided, the option to impose sentence  of  imprisonment  for  life  cannot  be conscientiously  exercised  having  regard  to  the nature  and circumstances  of  the  crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so  the  mitigating  circumstances  have  to  be accorded full weightage and a just balance has to be  struck  between  the  aggravating  and  the mitigating  circumstances  before  the  option  is exercised.”

339. The  three-Judge  Bench  further  opined  that  to

apply  the  said  guidelines,  the  following  questions  are

required to be answered:

“(a)  Is  there  something  uncommon  about  the crime  which  renders  sentence  of  imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there  is  no  alternative  but  to  impose  death sentence  even  after  according  maximum

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weightage to the mitigating circumstances which speak in favour of the offender?”

In the said case, the Court upheld the extreme penalty

of death in respect of three accused persons.

340. The Court in Haresh Mohandas Rajput v. State

of Maharashtra171, while dealing with the situation where

the death sentence is warranted, referred to the guidelines

laid  down  in  Bachan  Singh  (supra)  and  the  principles

culled out in Machhi Singh (supra) and opined as follows:

“19. In Machhi Singh v. State of Punjab this Court expanded the “rarest of rare” formulation beyond the aggravating factors listed in Bachan Singh to cases  where  the  “collective  conscience”  of  the community is so shocked that it will expect the holders of the judicial power centre to inflict the death  penalty  irrespective  of  their  personal opinion  as  regards  desirability  or  otherwise  of retaining the death penalty, such a penalty can be  inflicted.  But  the  Bench  in  this  case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just  balance  had  to  be  struck  between  the aggravating and the mitigating circumstances.”

After so stating, the Court ruled thus:

“20.  The rarest of the rare case” comes when a convict  would  be  a  menace  and  threat  to  the harmonious  and  peaceful  coexistence  of  the society. The crime may be heinous or brutal but may not be in the category of “the rarest of the rare case”.  There must be no reason to believe that  the  accused  cannot  be  reformed  or

171 (2011)  12 SCC 56

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rehabilitated  and  that  he  is  likely  to  continue criminal  acts  of  violence  as  would constitute  a continuing  threat  to  the  society.  The  accused may  be  a  menace  to  the  society  and  would continue to be so,  threatening its  peaceful  and harmonious  coexistence.  The  manner  in  which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society.  Where an accused does not act on any  spur-of-the-moment  provocation  and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may  be  the  most  appropriate  punishment  for such a ghastly crime. The death sentence may be warranted  where  the  victims  are  innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society e.g.  crime  committed  for  power  or  political ambition  or  indulging  in  organised  criminal activities,  death  sentence  should  be  awarded. (See C. Muniappan v. State of T.N172.,  Dara Singh v.  Republic of India173,  Surendra Koli v.  State of U.P.174,  Mohd. Mannan175 and  Sudam v.  State of Maharashtra176.)

21.  Thus,  it  is  evident  that  for  awarding  the death  sentence,  there  must  be  existence  of aggravating circumstances and the consequential absence  of  mitigating  circumstances.  As  to whether the death sentence should be awarded, would depend upon the factual  scenario of  the case in hand.”

172 (2010) 9 SCC 567 173 (2011) 2 SCC 490 174 Ibid 175 (2011) 5 SCC 317 176 (2011) 7 SCC 125s

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341.   This Court, while dealing with the murder of a young

girl  of  about  18 years  in  Dhananjoy Chatterjee  (supra),

took note of the fact that the accused was a married man of

27 years of age, the principles stated in  Bachan Singh’s

case  and  further  took  note  of  the  rise  of  violent  crimes

against  women  in  recent  years  and,  thereafter,  on

consideration  of  the  aggravating  factors  and  mitigating

circumstances, opined that:

“In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime;  the  conduct  of  the  criminal  and  the defenceless and unprotected state of the victim. Imposition  of  appropriate  punishment  is  the manner  in  which  the  courts  respond  to  the society’s  cry  for  justice  against  the  criminals. Justice  demands  that  courts  should  impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must  not  only  keep  in  view  the  rights  of  the criminal but also the rights of the victim of crime and  the  society  at  large  while  considering imposition of appropriate punishment.”

342. After so stating, the Court took note of the fact

that the deceased was a school-going girl  and it  was the

sacred  duty  of  the  appellant,  being  a  security  guard,  to

ensure  the  safety  of  the  inhabitants  of  the  flats  in  the

apartment  but  to  gratify  his  lust,  he  had  raped  and

murdered the girl in retaliation which made the crime more

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heinous.   Appreciating the manner in which the barbaric

crime  was  committed  on  a  helpless  and  defenceless

school-going girl of 18 years, the Court came to hold that

the case fell in the category of rarest of the rare cases and,

accordingly,  affirmed  the  capital  punishment  imposed  by

the High Court.

343. In Laxman Naik v. State of Orissa177, the Court

commenced the judgment with the following passage:

“The present case before us reveals a sordid story which took  place  sometime in  the  afternoon of February 17, 1990, in which the alleged sexual assault followed by brutal and merciless murder by the dastardly and monstrous act of abhorrent nature  is  said  to  have  been  committed  by  the appellant herein who is none else but an agnate and paternal uncle of the deceased victim Nitma, a girl of the tender age of 7 years who fell a prey to his lust which sends shocking waves not only to the judicial conscience but to everyone having slightest sense of human values and particularly to the blood relations and the society at large”.

344.  It is worthy to note that in the said case, the High

Court had dismissed the appellant’s appeal and confirmed

the death sentence awarded to him.  While discussing as

regards the justifiability of the sentence, the Court referred

to the decision in  Bachan Singh’s case  and opined that

there were absolutely no mitigating circumstances and, on 177 (1994) 3 SCC 381

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the contrary, the facts of the case disclosed only aggravating

circumstances against the appellant.  Elaborating further,

the Court held thus:

“The hard facts of the present case are that the appellant Laxman is the uncle of the deceased and  almost  occupied  the  status  and  position that of a guardian. Consequently the victim who was  aged  about  7  years  must  have  reposed complete confidence in the appellant and while reposing  such  faith  and  confidence  in  the appellant must have believed in his bona fides and it was on account of such a faith and belief that  she  acted  upon  the  command  of  the appellant  in  accompanying  him  under  the impression  that  she  was  being  taken  to  her village  unmindful  of  the  preplanned  unholy designs  of  the  appellant.  The  victim  was  a totally  helpless  child  there  being  no  one  to protect her in the desert where she was taken by  the  appellant  misusing  her  confidence  to fulfil his lust. It appears that the appellant had preplanned to commit the crime by resorting to diabolical methods and it was with that object that he took the girl to a lonely place to execute his dastardly act.”    

After so stating, the Court, while affirming the death

sentence, opined that:

“ …….The victim of the age of Nitma could not have even ever resisted the act with which she was subjected to. The appellant seems to have acted in a beastly manner as after satisfying his lust  he  thought  that  the  victim might  expose him for the commission of the offence of forcible rape on her to the family members and others, the appellant with a view to screen the evidence of  his  crime  also  put  an  end  to  the  life  of

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innocent  girl  who  had  seen  only  seven summers. The evidence on record is indicative of the fact as to how diabolically the appellant had conceived of his plan and brutally executed it  and  such  a  calculated,  cold-blooded  and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in  the  category  of  rarest  of  the  rare  cases attracting no punishment other than the capital punishment and consequently we confirm the sentence of death imposed upon the appellant for the offence under Section 302 of the Penal Code.”

345. Kamta  Tiwari  (supra)  is  a  case  where  the

appellant was convicted for the offences punishable under

Sections 363, 376, 302 and 201 of IPC and sentenced to

death by the learned trial Judge and the same was affirmed

by the High Court.  In appeal, the two-Judge Bench referred

to the propositions culled out in Machhi Singh (supra) and

expressed thus:

“Taking  an  overall  view  of  all  the  facts  and circumstances of the instant case in the light of the above propositions we are of the firm opinion that the sentence of death should be maintained. In  vain  we  have  searched  for  mitigating circumstances  —  but  found  aggravating circumstances  aplenty.  The  evidence  on  record clearly establishes that the appellant was close to the family of Parmeshwar and the deceased and her  siblings  used  to  call  him  ‘Tiwari  Uncle’. Obviously  her  closeness  with  the  appellant encouraged her to go to his shop, which was near the saloon where she had gone for a haircut with

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her  father  and  brother,  and  ask  for  some biscuits. The appellant readily responded to the request by taking her to the nearby grocery shop of Budhsen and handing over a packet of biscuits apparently  as  a  prelude  to  his  sinister  design which  unfolded  in  her  kidnapping,  brutal  rape and  gruesome  murder  —  as  the  numerous injuries on her person testify; and the finale was the dumping of her dead body in a well. When an innocent hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a  position  of  her  trust  his  culpability  assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that  this  is  a  “rarest  of  rare”  cases  where  the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but  also  to  give  emphatic  expression to society’s abhorrence of such crimes.”

346. In  Bantu v.  State  of  Uttar Pradesh178, a five

year  old  minor  girl  was  raped  and  murdered  and  the

appellant  was awarded death sentence  by the trial  Court

which was affirmed by the High Court.  This Court found

the appellant guilty of the crime and, thereafter, referred to

the  principles  stated  in  Bachan  Singh,  Machhi  Singh

(supra) and Devender Pal Singh v. State of A.P.179  and

eventually came to hold that the said case fell in the rarest

178 (2008) 11 SCC 113 179 (2002) 5 SCC 234

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of  the  rare  category  and  the  capital  punishment  was

warranted.   Being  of  this  view,  the  Court  declined  to

interfere with the sentence.  

347. In  Rajendra  Pralhadrao  Wasnik  v.  State  of

Maharashtra180,  the  appellant  was  awarded  sentence  of

death by the learned trial  Judge which was confirmed by

the  High  Court,  for  he  was  found  guilty  of  the  offences

punishable under Sections 376(2)(f), 377 and 302 IPC.  In

the said case, the prosecution had proven that the appellant

had lured a three year old minor girl child on the pretext of

buying  her  biscuits  and  then  raped  her  and  eventually,

being apprehensive of being identified, killed her.  In that

context, while dismissing the appeal, the Court ruled thus:

“37. When the Court draws a balance sheet of the aggravating and mitigating circumstances, for the purposes  of  determining  whether  the  extreme sentence of  death should be imposed upon the accused  or  not,  the  scale  of  justice  only  tilts against  the  accused  as  there  is  nothing  but aggravating  circumstances  evident  from  the record  of  the  Court.  In  fact,  one  has  to  really struggle to find out if there were any mitigating circumstances favouring the accused.

38. Another aspect of the matter is that the minor child  was  helpless  in  the  cruel  hands  of  the accused. The accused was holding the child in a

180 (2012) 4 SCC 37

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relationship of “trust-belief” and “confidence”, in which capacity he took the child from the house of  PW  2.  In  other  words,  the  accused,  by  his conduct,  has  belied  the  human  relationship  of trust  and  worthiness.  The  accused  left  the deceased in a badly injured condition in the open fields without even clothes. This reflects the most unfortunate and abusive facet of human conduct, for which the accused has to blame no one else than his own self.”

348. At  this  stage,  it  is  fruitful  to  refer  to  some

authorities where in cases of rape and murder, the death

penalty was not awarded.  In  State of T.N. v. Suresh

and  another181,  the  Court,  while  unsettling  the

judgment of  acquittal  recorded by the High Court and

finding that the accused was guilty of rape of a pregnant

woman and also  murder,  awarded the sentence of  life

imprisonment by observing:

“The  above  discussion  takes  us  to  the  final conclusion  that  the  High  Court  has  seriously erred in upsetting the conviction entered by the Sessions  Court  as  against  A-2  and  A-3.  The erroneous approach has resulted in miscarriage of  justice by allowing the two perpetrators of  a dastardly  crime  committed  against  a  helpless young  pregnant  housewife  who was sleeping  in her own apartment with her little baby sleeping by  her  side  and  during  the  absence  of  her husband.  We  strongly  feel  that  the  error committed by the High Court must be undone by restoring the conviction passed against A-2 and

181 (1998) 2 SCC 372

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A-3, though we are not inclined, at this distance of time, to restore the sentence of death passed by the trial court on those two accused”.

From the aforesaid authority, it is seen that the Court

did not think it appropriate to restore the death sentence

passed by the trial court regard being had to the passage of

time.  

349. In Akhtar v. State of U.P. (supra), the appellant

was found guilty of murder of a young girl after committing

rape  on her  and was  sentenced  to  death  by  the  learned

Sessions Judge and the said sentence was confirmed by the

High Court.  The two-Judge Bench referred to the decisions

in  Laxman Naik (supra) and  Kamta Tiwari (supra) and

addressed itself whether the case in hand was one of the

rarest of the rare case for which punishment of death could

be  awarded.   The  Court  distinguished  the  two  decisions

which have been referred to hereinabove and ruled:

“In the case in hand on examining the evidence of the  three  witnesses  it  appears  to  us  that  the accused-appellant has committed the murder of the deceased girl not intentionally and with any premeditation.  On  the  other  hand  the accused-appellant found a young girl alone in a lonely place, picked her up for committing rape; while committing rape and in the process by way

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of gagging the girl has died. The medical evidence also  indicates  that  the  death  is  on  account  of asphyxia.  In  the  circumstances  we  are  of  the considered opinion that the case in hand cannot be  held  to  be  one  of  the  rarest  of  rare  cases justifying the punishment of death”.

350. In  State  of  Maharashtra  v.  Barat  Fakira

Dhiwar182, a three-year old girl was raped and murdered by

the accused.  The learned trial Judge convicted the accused

and awarded the death sentence.  The High Court had set

aside  the  order  of  conviction  and  acquitted  him  for  the

offences. This Court, on scrutiny of the evidence, found the

accused guilty of rape and murder.  Thereafter, the Court

proceeded to deal with the sentence and, in that context,

observed:

“Regarding  sentence  we  would  have  concurred with the Sessions Court’s view that the extreme penalty of death can be chosen for such a crime. However, as the accused was once acquitted by the  High  Court  we  refrain  from  imposing  that extreme penalty in spite of the fact that this case is perilously near the region of “rarest of the rare cases”, as envisaged by the Constitution Bench in Bachan  Singh v.  State  of  Punjab.  However,  the lesser  option  is  not  unquestionably  foreclosed and so we alter  the  sentence,  in  regard to  the offence under Section 302 IPC, to imprisonment for life”.

182  (2002) 1 SCC 622

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351. Keeping  in  view  the  aforesaid  authorities,  the

Court,  in  Vasanta  Sampat  Dupare  v.  State  of

Maharashtra183,  proceeded to adumbrate what is the duty

of  the  Court  when  the  collective  conscience  is  shocked

because of the crime committed and observed:

“...  When the  crime is  diabolical  in nature and invites abhorrence of the collective, it shocks the judicial conscience and impels it to react keeping in  view  the  collective  conscience,  cry  of  the community for justice and the intense indignation the  manner  in  which  the  brutal  crime  is committed.   We  are  absolutely  conscious  that Judges while imposing sentence, should never be swayed  away  with  any  kind  of  individual philosophy  and  predilections.   It  should  never have  the  flavour  of  Judge-centric  attitude  or perception.  It has to satisfy the test laid down in various precedents relating to rarest of the rare case.  We are also required to pose two questions that has been stated in Machhi Singh’s case.”

352. In  the  said  case,  the  Court  dwelt  upon  the

manner in which the crime was committed and how a minor

girl  had  become a  prey  of  the  sexual  depravity  and  was

injured by the despicable act of the accused to silence the

voice so that there would be no evidence.  Dealing with the

same, the Court referred to earlier judgments and held:

183 (2015) 1 SCC 253

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“58. Presently, we shall proceed to dwell upon the manner  in  which  the  crime  was  committed. Materials  on  record  clearly  reveal  that  the appellant  was  well  acquainted  with  the inhabitants of the locality and as is demonstrable he had access to the house of the father of the deceased  and  the  children  used  to  call  him “uncle”. He had lured the deceased to go with him to  have  chocolates.  It  is  an  act  of  taking advantage of  absolute innocence.  He had taken the deceased from place to place by his bicycle and eventually raped her in a brutal manner, as if he had an insatiable and ravenous appetite. The injuries  caused  on  the  minor  girl  are  likely  to send a chill in the spine of the society and shiver in  the  marrows  of  human  conscience.  He  had battered her to death by assaulting her with two heavy  stones.  The  injured  minor  girl  could  not have  shown any kind of  resistance.  It  is  not  a case where the accused had a momentary lapse. It is also not a case where the minor child had died because of profuse bleeding due to rape but because  of  the  deliberate  cruel  assault  by  the appellant.  After  the  savage  act  was  over,  the coolness  of  the  appellant  is  evident,  for  he washed the clothes on the tap and took proper care to hide things. As is manifest, he even did not think for a moment the trauma and torture that was caused to the deceased. The gullibility and vulnerability of the four year girl, who could not have nurtured any idea about the maladroitly designed  biological  desires  of  this  nature,  went with the uncle  who extinguished her life-spark. The  barbaric  act  of  the  appellant  does  not remotely show any concern for the precious life of a young minor child who had really not seen life. The criminality of the conduct of the appellant is not only depraved and debased, but can have a menacing effect on the society. It is calamitous.

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59. In this context,  we may fruitfully refer to a passage  from  Shyam  Narain v.  State  (NCT  of Delhi)184, wherein it has been observed as follows:  

“1. The wanton lust, vicious appetite, depravity of  senses,  mortgage  of  mind  to  the  inferior endowments  of  nature,  the  servility  to  the loathsome  beast  of  passion  and  absolutely unchained  carnal  desire  have  driven  the appellant to commit a crime which can bring in a  ‘tsunami’  of  shock  in  the  mind  of  the collective, send a chill  down the spine of  the society,  destroy  the  civilised  stems  of  the milieu and comatose the marrows of sensitive polity.”

In the said case, while describing the rape on an eight-year-old  girl,  the  Court  observed:  (Shyam Narain case, SCC p. 88, para 26)

“26. … Almost for the last three decades, this Court  has  been  expressing  its  agony  and distress  pertaining  to  the  increased  rate  of crimes against women. The eight-year-old girl, who  was  supposed  to  spend  time  in cheerfulness,  was  dealt  with  animal  passion and her dignity and purity of  physical  frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode  the  poise  and  equanimity  of  any civilised society. The age-old wise saying that ‘child is a gift of the providence’ enters into the realm of absurdity. The young girl, with efflux of  time,  would  grow  with  a  traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill  air  of  the past  forcing her to a state  of nightmarish melancholia. She may not be able

184  (2013) 7 SCC 77

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to assert the honour of a woman for no fault of hers.”

Elucidating further, the Court held:

“60. In the case at hand, as we find, not only was the  rape  committed  in  a  brutal  manner  but murder  was  also  committed  in  a  barbaric manner. The rape of a minor girl child is nothing but  a  monstrous  burial  of  her  dignity  in  the darkness. It is a crime against the holy body of a girl child and the soul of society and such a crime is aggravated by the manner in which it has been committed.  The  nature  of  the  crime  and  the manner in which it has been committed speaks about  its  uncommonness.  The  crime  speaks  of depravity, degradation and uncommonality. It is diabolical and barbaric. The crime was committed in an inhuman manner. Indubitably, these go a long  way  to  establish  the  aggravating circumstances.

61. We are absolutely conscious that mitigating circumstances are to be taken into consideration. The  learned  counsel  for  the  appellant  pointing out  the  mitigating  circumstances  would  submit that the appellant is in his mid-fifties and there is possibility  of  his  reformation.  Be  it  noted,  the appellant was aged about forty-seven years at the time of commission of the crime. As is noticeable, there  has  been  no  remorse  on  the  part  of  the appellant.  There are cases when this Court has commuted the death sentence to life finding that the accused has expressed remorse or the crime was not premeditated. But the obtaining factual matrix when unfolded stage by stage would show the  premeditation,  the  proclivity  and  the rapacious  desire.  The  learned  counsel  would submit  that  the  appellant  had  no  criminal antecedents  but  we  find  that  he  was  a history-sheeter  and  had  a  number  of  cases

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pending  against  him.  That  alone  may  not  be sufficient. The appalling cruelty shown by him to the minor girl child is extremely shocking and it gets  accentuated,  when  his  age  is  taken  into consideration.  It  was  not  committed  under  any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed or rehabilitated. As  the  circumstances  would  graphically  depict, he  would  remain  a  menace  to  society,  for  a defenceless  child  has  become  his  prey.  In  our considered  opinion,  there  are  no  mitigating circumstances.

62. As we perceive, this case deserves to fall in the  category  of  the  rarest  of  rare  cases.  It  is inconceivable from the perspective of the society that a married man aged about two scores and seven makes a four-year minor innocent girl child the prey of his lust and deliberately causes her death. A helpless and defenceless child gets raped and murdered because of the acquaintance of the appellant with the people of the society. This is not  only  betrayal  of  an  individual  trust  but destruction and devastation of social trust. It is perversity  in its  enormity.  It  irrefragably invites the  extreme  abhorrence  and  indignation  of  the collective. It is an anathema to the social balance. In our view, it meets the test of the rarest of the rare case and we unhesitatingly so hold.”

353. In the said case, a review petition bearing Review

Petition (Criminal)  Nos.  637-638 of  2015 was filed  which

has been recently dismissed. U.U. Lalit,  J.,  authoring the

judgment, has held:

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“19. It  is  thus  well  settled,  “the  Court  would consider the cumulative effect of both the aspects (namely aggravating factors as well as mitigating circumstances)  and  it  may  not  be  very appropriate  for  the  Court  to  decide  the  most significant  aspect  of  sentencing  policy  with reference to one of the classes completely ignoring other  classes  under  other  heads  and  it  is  the primary duty of  the Court  to balance the two.” Further, “it is always preferred not to fetter the judicial  discretion  by  attempting  to  make excessive  enumeration,  in  one  way  or  another; and  that  both  aspects  namely  aggravating  and mitigating circumstances have to be given their respective weightage and that  the Court has to strike  the  balance  between  the  two  and  see towards which side the scale/balance of  justice tilts.”   With  these  principles  in  mind  we  now consider the present review petition.  

20. The  material  placed  on  record  shows that after the Judgment under review, the petitioner has completed Bachelors Preparatory Programme offered  by  the  Indira  Gandhi  National  Open University enabling him to prepare for Bachelor level study and that he has also completed the Gandhi Vichar Pariksha and had participated in drawing  competition  organized  sometime  in January 2016.  It is asserted that the jail record of  the  petitioner  is  without  any  blemish.   The matter is not contested as regards Conditions 1, 2, 5, 6 and 7 as stated in paragraph 206 of the decision in  Bachan Singh but what is now being projected  is  that  there  is  a  possibility  of  the accused  being  reformed  and  rehabilitated. Though these attempts on part of the petitioner are  after  the  judgment  under  review,  we  have considered the material  in  that  behalf  to  see if those circumstances warrant a different view.  We have given anxious consideration to the material on  record  but  find  that  the  aggravating circumstances namely the extreme depravity and

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the  barbaric  manner  in  which  the  crime  was committed  and  the  fact  that  the  victim  was  a helpless  girl  of  four  years  clearly  outweigh  the mitigating circumstances now brought on record. Having taken an overall view of the matter, in our considered view, no case is made out to take a different view in the matter.  We, therefore, affirm the view taken in the Judgment under review and dismiss the present Review Petition.”  

354. The  mitigating  factors  which  have  been

highlighted before us on the basis of the affidavits filed by

the appellants pertain to the strata to which they belong,

the aged parents, marital status and the young children and

the suffering they would go through and the calamities they

would face in case of affirmation of sentence, their conduct

while  they  are  in  custody  and the  reformative  path  they

have chosen and their transformation and the possibility of

reformation.  That apart, emphasis has been laid on their

young age and rehabilitation.

355. Now, we shall focus on the nature of the crime

and  manner  in  which  it  has  been  commited.  The

submission of Mr. Luthra, learned senior counsel,  is that

the present case amounts to devastation of social trust and

completely  destroys the collective  balance and invites  the

indignation of the society.  It is submitted by him that that a

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crime of this nature creates a fear psychosis and definitely

falls in the category of rarest of the rare cases.

356. It is necessary to state here that in the instant

case, the brutal, barbaric and diabolic nature of the crime is

evincible from the acts committed by the accused persons,

viz., the assault on the informant, PW-1 with iron rod and

tearing  off  his  clothes;  assaulting  the  informant  and  the

deceased with hands, kicks and iron rod and robbing them

of  their  personal  belongings  like  debit  cards,  ring,

informant’s shoes, etc.; attacking the deceased by forcibly

disrobing her and committing violent sexual assault by all

the appellants;   their brutish behaviour in having anal sex

with  the  deceased  and  forcing  her  to  perform  oral  sex;

injuries on the body of the deceased by way of bite marks

(10 in number);  and insertion of  rod in her private parts

that,  inter  alia,  caused perforation of  her  intestine  which

caused sepsis and, ultimately, led to her death. The medical

history of  the prosecutrix (as proved in the record in Ex.

PW-50/A  and  Ex.  PW-50)  demonstrates  that  the  entire

intestine of the prosecutrix was perforated and splayed open

due to the repeated insertion of the rod and hands; and the

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appellants  had  pulled  out  the  internal  organs  of  the

prosecutrix in the most savage and inhuman manner that

caused grave injuries which ultimately annihilated her life.

As has been established, the prosecutrix sustained various

bite marks which were observed on her face, lips, jaws, near

ear, on the right and left breast, left upper arm, right lower

limb, right inner groin, right lower thigh, left thigh lateral,

left  lower  anterior  and  genitals.  These  acts  itself

demonstrate  the  mental  perversion  and  inconceivable

brutality  as caused by the appellants.  As further  proven,

they threw the informant and the deceased victim on the

road in a cold winter night.  After throwing the informant

and the deceased victim, the convicts tried to run the bus

over them so that there would be no evidence against them.

They made all possible efforts in destroying the evidence by,

inter alia, washing the bus and burning the clothes of the

deceased  and  after  performing  the  gruesome  act,  they

divided the loot among themselves. As we have narrated the

incident  that  has  been  corroborated  by  the  medical

evidence,  oral  testimony and the  dying  declarations,  it  is

absolutely obvious that the accused persons had found an

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object for  enjoyment in her and, as is  evident,  they were

obsessed  with  the  singular  purpose  sans  any  feeling  to

ravish her as they liked, treat her as they felt  and, if  we

allow  ourselves  to  say,  the  gross  sadistic  and  beastly

instinctual pleasures came to the forefront when they, after

ravishing her, thought it to be  just a matter of routine to

throw her alongwith her friend out of  the bus and crush

them. The casual manner with which she was treated and

the devilish manner in which they played with her identity

and dignity is humanly inconceivable. It sounds like a story

from a  different  world  where  humanity  has  been  treated

with  irreverence.  The  appetite  for  sex,  the  hunger  for

violence, the position of the empowered and the attitude of

perversity, to say the least, are bound to shock the collective

conscience which knows not what to do.  It is manifest that

the wanton lust, the servility to absolutely unchained carnal

desire  and  slavery  to  the  loathsome  beastility  of  passion

ruled the mindset of the appellants to commit a crime which

can  summon  with  immediacy  “tsunami”  of  shock  in  the

mind of the collective and destroy the civilised marrows of

the milieu in entirety.

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357. When we cautiously,  consciously and anxiously

weigh  the  aggravating  circumstances  and  the  mitigating

factors,  we  are  compelled  to  arrive  at  the  singular

conclusion that the aggravating circumstances outweigh the

mitigating circumstances now brought on record. Therefore,

we  conclude  and  hold  that  the  High  Court  has  correctly

confirmed the death penalty and we see no reason to differ

with the same.  

358. Before we part with the case, we are obligated to

record  our  unreserved  appreciation  for  the  assistance

rendered  by  Mr.  Raju  Ramachandran and  Mr.  Sanjay  R.

Hegde, learned amicus curiae appointed by the Court.  We

must  also  record  our  uninhibited  appreciation  for

Mr. M.L. Sharma and Mr. A.P. Singh, learned counsel for

the appellants,  for  they, keeping the tradition of  the Bar,

defended the appellants at every stage.  

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359. In view of our preceding analysis, the appeals are

bound to pave the path of dismissal, and accordingly, we so

direct.  

………………………J.       (Dipak Misra)  

………………………J.       (Ashok Bhushan) New Delhi May 05, 2017

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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 607-08 OF 2017 [@SLP(CRL) NOS. 3119-3120 OF 2014]

Mukesh & Anr. …..           Appellants Vs.

State of NCT of Delhi and Ors. …..                Respondents

With

CRIMINAL APPEAL NOS. 609-10 OF 2017 [@SLP(CRL) NOS. 5027-5028 OF 2014]

Vinay Sharma & Anr. …..   Appellants Vs.

State of NCT of Delhi and Ors. …..              Respondents

J U D G M E N T

R. BANUMATHI, J.

I have gone through the judgment of my esteemed Brother Justice

Dipak Misra. I entirely agree with the reasoning adopted by him and the

conclusions arrived at.  However, in view of the significant issues involved

in the matter, in the light of settled norms of appreciation of evidence in

rape cases and the role of Judiciary in addressing crime against women, I

would prefer to give my additional reasoning for concurrence.

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rate  under  the  head,  ‘crime against  women’  was  reported  as  53.9% in

2015, with Delhi UT at the top spot.

4. As per the National Crime Records Bureau, a total of 34,651 cases of

rape under Section 376 IPC were registered during 2015 (excluding cases

under  the  Protection  of  Children  from  Sexual  Offences  Act,  2012).  An

increasing trend in the incidence of rape has been observed during the

period 2011-2014. These cases have shown an increase of 9.2% in the

year 2011 (24,206 cases) over the year 2010 (22,172 cases), an increase

of 3.0% in the year 2012 (24,923 cases) over 2011, with further increase of

35.2%  in  the  year  2013  (33,707  cases)  over  2012  and  9.0%  in  2014

(36,735  cases)  over  2013.  A decrease  of  5.7%  was  reported  in  2015

(34,651  cases)  over  2014  (36,735  cases).  12.7% (4,391  out  of  34,651

cases)  of  total  reported  rape  cases  in  2015  were  reported  in  Madhya

Pradesh followed by Maharashtra (4,144 cases), Rajasthan (3,644 cases),

Uttar  Pradesh  (3,025  cases)  and  Odisha  (2,251  cases)  accounting  for

11.9%, 10.5%, 8.7% and 6.5% of total cases respectively. NCT of Delhi

reported  highest  crime  rate  of  23.7%  followed  by  Andaman  &  Nicobar

Islands at  13.5% as compared to national  average of  5.7%. In order to

combat increasing crime against women, as depicted in the statistics of

National Crime Records Bureau, the root of the problem must be studied in

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depth and the same be remedied through stringent legislation and other

steps.   In  order  to  secure  social  order  and  security, it  is  imperative  to

address issues concerning women, in particular crimes against women on

priority basis.  

5. Stringent legislation and punishments alone may not be sufficient for

fighting increasing crimes against women. In our tradition bound society,

certain attitudinal change and change in the mind-set is needed to respect

women and to ensure gender justice. Right from childhood years’ children

ought  to  be  sensitized  to  respect  women.  A child  should  be  taught  to

respect women in the society in the same way as he is taught to respect

men.  Gender equality should be made a part of the school curriculum. The

school teachers and parents should be trained, not only to conduct regular

personality building and skill enhancing exercise, but also to keep a watch

on  the  actual  behavioural  pattern  of  the  children  so  as  to  make  them

gender  sensitized.  The  educational  institutions,  Government  institutions,

the employers and all concerned must take steps to create awareness with

regard to gender sensitization and to respect women. Sensitization of the

public on gender justice through TV, media and press should be welcomed.

On  the  practical  side,  few  of  the  suggestions  are  worthwhile  to  be

considered.  Banners  and  placards  in  the  public  transport  vehicles  like

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autos,  taxis  and  buses  etc.  must  be  ensured.  Use  of  street  lights,

illuminated bus stops and extra police patrol  during odd hours must  be

ensured.  Police/security guards must be posted at dark and lonely places

like parks, streets etc.  Mobile apps for immediate assistance of women

should  be  introduced  and  effectively  maintained.   Apart  from  effective

implementation of the various legislation protecting women, change in the

mind set of the society at large and creating awareness in the public on

gender justice, would go a long way to combat violence against women.  

6. Factual  Matrix:  The  entire  factual  matrix  of  the  concerned

horrendous incident has already been fairly set out in the judgment of my

esteemed brother Justice Dipak Misra, the High Court and the trial Court.

Suffice only to briefly recapitulate the facts, for my reference purpose and

for completion.

7. In the wintry night of 16.12.2012, when the entire Delhi was busy in

its  day-to-day  affair,  embracing  the  joy  of  year-end,  two  youths  were

bravely struggling to save their  dignity  and life.  It  is  a case of  barbaric

sexual violence against women, in fact against the society at large, where

the  accused  and  juvenile  in  conflict  with  law  picked  up  a  23  year  old

physiotherapy student and her male friend (PW-1) accompanying her, from

a busy place in Delhi-Munirka Bus stop and subjected them to heinous

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offences. The accused gang-raped the prosecutrix in the moving bus and

completely  ravished her  in front  of  her  helpless friend,  Awninder Pratap

(PW-1). The accused, on satisfaction of their lust, threw both the victims,

half naked, outside the bus, in December cold near Mahipalpur flyover. The

prosecutrix and PW-1 were noticed in miserable condition near Mahipalpur

flyover,  where  they  were  thrown,  by  PW-72  Raj  Kumar,  who  was  on

patrolling  duty  that  night  in  the  area  and  PW-73  Ram  Chandar,  Head

Constable, rushed the prosecutrix and PW-1 to Safdarjung Hospital owing

to the need of immediate medical attention. Law was set in motion by the

statement  of  PW-1,  which  was  recorded  after  giving  primary  medical

treatment to him. Statement/Dying declaration of the prosecutrix was also

recorded by PW-49 Doctor, PW-27 Sub-Divisional Magistrate and PW-30

Metropolitan Magistrate.  After intensive care and treatment in ICU in Delhi,

the  victim  was  airlifted  to  a  hospital  in  Singapore  by  an  air-ambulance

where she succumbed to her injuries on 29.12.2012.

8. The  incident  shocked  the  nation  and  generated  public  rage.   A

Committee headed by Justice J.S. Verma, Former Chief Justice of India

was constituted to suggest amendments to deal with sexual offences more

sternly and effectively in future. The suggestions of the Committee led to

the enactment of Criminal Law (Amendment) Act, 2013 which,  inter alia,

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brought in substantive as well as procedural reforms in the core areas of

rape law. The changes brought in, inter alia, can broadly be titled as under:-

(i) Extension of the definition of the offence of rape in            Section 375

IPC;  (ii)  Adoption of a more pragmatic approach while dealing with the

issue of  consent in the offence of  rape; and (iii)  Introduction of  harsher

penalty  commensurating  with  the  gravity  of  offence.  These  subsequent

events though not relevant for the purpose of this judgment, I have referred

to it for the sake of factual completion.  

9. Both the courts below, by recording concurrent findings, have found

all the accused guilty of the offences they were charged with and owing to

the gravity and manner of committing the heinous offences held that the

acts of the accused shake the conscience of the society falling within the

category of rarest of rare cases and awarded death penalty. Briefly put, the

courts below have found that the prosecution has established the guilt of

the accused inter alia on the following:

1. Three  dying  declarations  of  the  prosecutrix,

complementing each other, corroborated by medical evidence

and other direct as well as circumstantial evidence.  

2. Testimony  of  eye  witness  -  PW-1,  corroborated  by

circumstantial evidence as well as scientific evidence.

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3. Recovery  of  the  bus  in  which  incident  took  place  and

recovery of the concerned iron rod therefrom, completing the

chain of circumstantial evidence, by proof of scientific evidence

like DNA analysis, finger print analysis etc.

4. Arrest  of  the accused and their  identification by  PW-1,

recovery of articles belonging to the prosecutrix and PW-1 from

the  accused,  pursuant  to  their  disclosure  statement,

substantiated by proof of DNA analysis.

5. Conspiracy of the accused in the commission of offence.

10. While concurring with the majority, I have recorded my reasoning by

considering the evidence on record in the light of settled legal principles

and  also  analysed  the  justifiability  of  the  punishment  awarded  to  the

accused. For proper appreciation of evidence, it is apposite to first refer to

the settled principles and norms of appreciation of evidence of prosecutrix

and other evidence in a rape case.   

11. Duty  of  court  in  appreciation  of  evidence  while  dealing  with

cases of rape: Crime against women is an unlawful intrusion of her right to

privacy, which offends her self-esteem and dignity.  Expressing concern

over the increasing crime against women, in  State of Punjab v. Gurmit

Singh and Others (1996) 2 SCC 384, this Court held as under:-

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“21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman’s rights in all  spheres,  we  show little  or  no  concern  for  her  honour.  It  is  a  sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist  not  only  violates  the  victim’s  privacy  and  personal  integrity,  but inevitably causes serious psychological as well  as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts,  therefore,  shoulder  a  great  responsibility  while  trying  an accused on charges of rape. They must deal with such cases with utmost  sensitivity.  The  courts  should  examine  the  broader probabilities of a case and not get swayed by minor contradictions or  insignificant  discrepancies  in  the statement  of  the  prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case…….” [Emphasis supplied]

12. The above principle of  law, declared in  Gurmeet Singh’s case is

reiterated in various cases viz., State of Rajasthan v. N.K. The Accused

(2000) 5 SCC 30; State of H.P. v. Lekh Raj and Another (2000) 1      SCC

247; State of H.P. v. Asha Ram (2005) 13 SCC 766.

13. Clause  (g)  of  sub-section  (2)  of  Section  376  IPC  (prior  to  2013

Amendment Act 13 of 2013) deals with cases of gang rape.  In order to

establish an offence under Section 376(2)(g) IPC, read with Explanation I

thereto, the prosecution must adduce evidence to indicate that more than

one  accused  had  acted  in  concert  and  in  such  an  event,  if  rape  is

committed by even one, all the accused are guilty, irrespective of the fact

that  only  one  or  more  of  them  had  actually  committed  the  act.

Section 376(2)(g) read with Explanation I thus embodies a principle of joint

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liability.  But so far as appreciation of evidence is concerned, the principles

concerning the cases falling under sub-section(1) of Section 376 IPC apply.

14. In a case of rape, like other criminal cases, onus is always on the

prosecution to  prove affirmatively  each ingredients  of  the offence.   The

prosecution must discharge this burden of proof to bring home the guilt of

the accused and this onus never shifts.  In Narender Kumar v. State (NCT

of Delhi) (2012) 7 SCC 171, it was held as under:-

“29. However,  even  in  a  case  of  rape,  the  onus  is  always  on  the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It  is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. ……… There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence.  The accused is entitled to the benefit  of every reasonable doubt.”  

15. At the same time while dealing with cases of rape, the Court must act

with utmost sensitivity and appreciate the evidence of prosecutrix in lieu of

settled legal principles. Courts while trying an accused on the charge of

rape, must deal with the case with utmost sensitivity, examining the broader

probabilities of a case and it should not be swayed by minor contradictions

and discrepancies in appreciation of evidence of the witnesses which are

not of a substantial character.  It is now well-settled that conviction for an

offence of  rape can be based on the sole  testimony of  the prosecutrix

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corroborated by medical evidence and other circumstantial evidence such

as the report  of  chemical  examination,  scientific  examination etc.,  if  the

same is found natural and trustworthy.

16. Persisting notion that the testimony of victim has to be corroborated

by  other  evidence  must  be  removed.  To  equate  a  rape  victim  to  an

accomplice is to add insult to womanhood.  Ours is a conservative society

and  not  a  permissive  society.  Ordinarily  a  woman,  more  so,  a  young

woman will not stake her reputation by levelling a false charge, concerning

her chastity.  In State of Karnataka v. Krishnappa,  (2000) 4 SCC 75, it

was held as under:-  

“15. Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to  her  supreme  honour  and  offends  her  self-esteem and  dignity  — it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. …… 16. A socially sensitised Judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos. [emphasis supplied]”

17. There  is  no  legal  compulsion  to  look  for  corroboration  of  the

prosecutrix’s  testimony  unless  the  evidence  of  the  victim  suffers  from

serious  infirmities,  thereby  seeking  corroboration.  In  Bharwada

Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, it was held

as under:-

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“9. In  the Indian setting,  refusal  to  act  on the testimony of  a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it  to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it  on the Indian soil regardless  of  the  altogether  different  atmosphere,  attitudes,  mores, responses of the Indian society, and its profile. The identities of the two worlds are different. ………

10. By and large these factors are not relevant to India, and the Indian conditions.  Without  the  fear  of  making  too  wide  a  statement,  or  of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual  assault  on account  of  any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context  of  the  sophisticated,  not  so  sophisticated,  and  unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society  including  by  her  own  family  members,  relatives,  friends,  and neighbours. (3) She would have to brave the whole world. (4) …………

11.  ……..  On principle the evidence of  a  victim of  sexual  assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while  corroboration in  the form of  eyewitness account  of  an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. ……. [emphasis supplied]”

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It was further held in  Bharwada Bhoginbhai Hirjibhai (supra) that if the

evidence of  the victim does not  suffer  from any  basic  infirmity  and  the

“probabilities-factor” does not render it unworthy of credence, there is no

reason  to  insist  on  corroboration  except  corroboration  by  the  medical

evidence.  The same view was taken in Krishan Lal v. State of Haryana

(1980) 3 SCC 159.

18. It is well-settled that conviction can be based on the sole testimony of

the prosecutrix if  it  is  implicitly  reliable and there is a ring of truth in it.

Corroboration  as  a  condition  for  judicial  reliance  on  the  testimony of  a

prosecutrix is not  requirement of law but a guidance of  prudence under

given  circumstances.  In  Rajinder  alias  Raju  v.  State  of  Himachal

Pradesh, (2009) 16 SCC 69, it was held as under:-

“19. In  the  context  of  Indian  culture,  a  woman—victim  of  sexual aggression—would  rather  suffer  silently  than  to  falsely  implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone  but  the  real  culprit.  While  appreciating  the  evidence  of  the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape  on  her  and  therefore,  ordinarily  a  look  for  corroboration  of  her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the  sole  testimony  of  the  prosecutrix.  It  has  been  rightly  said  that corroborative  evidence  is  not  an  imperative  component  of  judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.”

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19. In  Raju  and  Others  v.  State  of  Madhya  Pradesh  (2008)  15

SCC 133, it was held as under:-  

“10. …….that  ordinarily  the  evidence  of  a  prosecutrix  should  not  be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. ……

11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell  a lie as to the actual assailants,  but there is no presumption  or  any  basis  for  assuming  that  the  statement  of  such  a witness is always correct or without any embellishment or exaggeration.”

20. In  State  of  H.P.  v.  Asha  Ram  (2005)  13  SCC  766,  this  Court

highlighted  the  importance  of,  and  the  weight  to  be  attached  to,  the

testimony of the prosecutrix.  In para (5), it was held as under:

“5. …….. It is now a well-settled principle of law that conviction can be founded  on  the  testimony  of  the  prosecutrix  alone  unless  there  are compelling  reasons  for  seeking  corroboration.  The  evidence  of  a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault  alone  to  convict  an  accused  where  her  testimony  inspires confidence and is found to be reliable. It is also a well-settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The evidence of the prosecutrix is more reliable  than  that  of  an  injured  witness.  Even  minor  contradictions  or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.”

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21. As held in the case of  State of Punjab v. Ramdev Singh (2004) 1

SCC 421,  there  is  no  rule  of  law  that  the  testimony of  the  prosecutrix

cannot be acted upon without corroboration in material  particulars.  She

stands at a higher pedestal than an injured witness.   However, if the Court

of facts finds it difficult to accept the version of the prosecutrix on its face

value, it may search for evidence, direct or circumstantial, which would lend

assurance  to  her  testimony.   The  above  judgment  of  Ramdev  Singh

(supra) has been approvingly quoted in State of U.P. v. Munshi (2008) 9

SCC 390.

22. In a catena of decisions, this Court has held that conviction can be

based  on  the  sole  testimony  of  the  prosecutrix,  provided  it  is  natural,

trustworthy and worth being relied upon vide State of H.P. v. Gian Chand

(2001) 6 SCC 71, State of Rajasthan v. N.K. The Accused (2000) 5 SCC

30;  State of H.P. v. Lekh Raj and Another  (2000) 1 SCC 247,  Wahid

Khan v. State of Madhya Pradesh (2010) 2 SCC 9,  Dinesh Jaiswal v.

State of Madhya Pradesh (2010) 3 SCC 232;  Om Prakash v. State of

Haryana (2011) 14 SCC 309.

23. Observing  that  once  the  statement  of  the  prosecutrix  inspires

confidence,  conviction  can  be  based  on  the  solitary  evidence  of  the

prosecutrix and that  corroboration of  testimony of  a prosecutrix  is  not  a

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requirement of law but only a rule of prudence, in Narender Kumar’s case

(supra), this Court held as under:-

“20. It  is  a  settled  legal  proposition  that  once  the  statement  of  the prosecutrix  inspires  confidence  and  is  accepted by  the  court  as  such, conviction can be based only on the solitary evidence of the prosecutrix and  no  corroboration  would  be  required  unless  there  are  compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given  facts  and  circumstances.  Minor  contradictions  or  insignificant discrepancies  should  not  be  a  ground  for  throwing  out  an  otherwise reliable prosecution case.”

21. A prosecutrix complaining of having been a victim of the offence of rape  is  not  an  accomplice  after  the  crime.  Her  testimony  has  to  be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial (sic circumstantial), which may  lend  assurance  to  her  testimony.  (Vide  Vimal  Suresh  Kamble v. Chaluverapinake  Apal  S.P.  (2003)  3  SCC 175 and  Vishnu v.  State  of Maharashtra (2006) 1 SCC 283.)”

24. Courts should not attach undue importance to discrepancies, where

the  contradictions  sought  to  be  brought  up  from  the  evidence  of  the

prosecutrix are immaterial and of no consequence.  Minor variations in the

testimony of the witnesses are often the hallmark of truth of the testimony.

Trivial  discrepancies  ought  not  to  obliterate  an  otherwise  acceptable

evidence.  Due to efflux  of  time,  there  are  bound  to  be  minor

contradictions/discrepancies in the statement of the prosecutrix but such

minor discrepancies and inconsistencies are only natural since when truth

is sought to be projected through human, there are bound to be certain

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inherent  contradictions.  But  as  held  in  Om  Prakash  v.  State  of  U.P.

(2006) 9 SCC 787, the Court should examine the broader probabilities of a

case.

25. There  is  no  quarrel  over  the  proposition  that  the  evidence  of  the

prosecutrix is to be believed by examining the broader probabilities of a

case.  But where there are serious infirmities and inherent inconsistencies

in  evidence;  the prosecutrix  making deliberate  improvement  on material

point with a view to rule out consent on her part, no reliance can be placed

upon the testimony of the prosecutrix.  In Tameezuddin v. State (NCT of

Delhi), (2009) 15 SCC 566, it was held as under:-

“9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in  a  criminal matter.  We are  of  the  opinion  that  the  story  is  indeed improbable.”

The same view was taken in Suresh N. Bhusare v. State of Maharashtra

(1999) 1 SCC 220 and Jai Krishna Mandal v. State of Jharkhand (2010)

14 SCC 534.

26. On  the  anvil  of  the  above  principles,  let  us  test  the  case  of

prosecution  and  version  of  the  prosecutrix  as  depicted  in  her  dying

declaration.

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27. Dying Declaration: Prosecution relies upon three dying declarations

of the victim:- (i)  Statement of victim recorded by PW-49 Dr. Rashmi Ahuja

(Ex.  PW-49/A) when the victim was brought  to Safdarjung Hospital  and

admitted in the Gynae casualty at about 11:15 p.m. on 16.12.2012 – the

victim gave a brief account of the incident stating that she went to a movie

with her friend Awnindra (PW-1) and that after  the movie,  they together

boarded the bus from Munirka bus stop in which she was gang-raped and

that she was thrown away from the moving bus thereafter, along with her

friend; (ii) Second dying declaration recorded by PW-27 Usha Chaturvedi,

SDM (Ex. PW-27/A) on 21.12.2012 at about 09:00 p.m. – the victim gave

the  details  of  the  entire  incident  specifying  the  role  of  each  accused:

gang-rape,  unnatural  sex  committed  on  her,  the  injuries  inflicted  by

accused on her vagina and rectum, by use of iron rod and by insertion of

hands  in  her  private  parts;  description  of  the  bus,  robbery  and  lastly

throwing both the victim and also her boyfriend out of the moving bus in

naked  condition  near  Mahipalpur  flyover;   (iii)  Third  dying  declaration

recorded by PW-30 Pawan Kumar, Metropolitan Magistrate (Ex.PW-30/D)

on 25.12.2012 at 1:00 PM at ICU, Safdarjung Hospital by putting questions

in  multiple  choice  and  recording  answers  through  such  questions  by

gestures or writings – the victim wrote the names of the accused in the third

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dying  declaration.  Evidence  of  PW-28  Dr.  Rajesh  Rastogi  and  the

certificate (Ex.PW-28/A) given by him establishes that the victim was in a fit

mental  condition  to  give  the  statement  through gestures.   Furthermore,

PW-75  Asha  Devi,  mother  of  the  victim  in  her  cross-examination  also

deposed that she had a talk with her daughter on the night of 25.12.2012,

which shows that the victim was conscious, communicative and oriented.

Contentions urged, assailing the fit mental condition of the victim have no

merit.

28. With regard to the contention that there were improvements in the

dying declarations, I am of he view, the victim was gang-raped and iron rod

was inserted in her private parts in the incident and the victim must have

been pushed to  deep emotional  crisis.   Rape  deeply  affects  the  entire

psychology of the woman and humiliates her, apart from leaving her in a

trauma.   The  testimony  of  the  rape  victim  must  be  appreciated  in  the

background  of  the  entire  case  and  the  trauma  which  the  victim  had

undergone.  As a matter of record, PW-49 Dr. Rashmi Ahuja, at around

11:15 p.m. on the night of 16.12.2012, had attended to the prosecutrix as

soon as she was brought to the hospital and had prepared casualty/OPD

Card  of  the  prosecutrix       (Ex.  PW-49/A),  as  well  as  her  MLC (Ex.

PW-49/B).  At that time, PW-49 had found her cold and clammy due to

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vaso-constriction.  The prosecutrix was found shivering, for which she was

administered IV line and warm saline in order to stabilize her pulse and BP.

When the victim was in such a condition, the victim cannot be expected to

give minute details of the occurrence like overt act played by the accused,

insertion of  iron rod etc.    There is  no justification for  blowing up such

omission out of proportion in the statement recorded by PW-49 Dr. Rashmi

Ahuja  and doubt  the same.   In  the occurrence,  physical  and emotional

balance of the victim must have been greatly disturbed.  Startled by the

incident,  whatever  the  victim  was  able  to  momentarily  recollect,  she

narrated  to  PW-49  and  placed  in  that  position  non-mention  of  minute

details in Ex.PW-49/A cannot be termed as a material omission.   

29. Dying declaration is a substantial piece of evidence provided it is not

tainted with malice and is not made in an unfit mental state.  Each case of

dying declaration has to be considered in its own facts and circumstances

in which it is made.  However, there are some well-known tests to ascertain

as to whether the statement was made in reference to cause of death of its

maker and whether the same could be relied upon or not.  The Court also

has to satisfy as to whether the deceased was in a fit mental state to make

the statement.  The Court must scrutinize the dying declaration carefully

and ensure that the declaration is not the result of tutoring, prompting or

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imagination.  Once the Court  is  satisfied that  the declaration is  true and

voluntary, it  can base its conviction without any further corroboration.  It

cannot be laid down as an absolute rule of law that the dying declaration

cannot form the sole basis of conviction unless it is corroborated.  The rule

requiring corroboration is merely a rule of prudence. That the deceased

had the opportunity to observe and identify the assailants and was in a fit

state  to  make  the  declaration.  [K.  Ramachandra  Reddy  and  Anr.  v.

Public Prosecutor (1976) 3 SCC 618]   

30. The principles governing dying declarations have been exhaustively

laid down in several judicial pronouncements. In  Paniben (Smt.) v. State

of  Gujarat,  (1992)  2  SCC  474,  this  Court  referred  to  a  number  of

judgments laying down the principles governing dying declaration.  In this

regard, I find it apposite to quote the following from  Paniben (supra) as

under:-  

“18. Though a dying declaration is entitled to great weight, it is worthwhile to  note  that  the  accused  has  no  power  of  cross-examination.  Such  a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be  of  such  a  nature  as  to  inspire  full  confidence  of  the  Court  in  its correctness. The Court has to be on guard that the statement of deceased was  not  as  a  result  of  either  tutoring,  prompting  or  a  product  of imagination. The Court must be further satisfied that the deceased was in a fit  state of  mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary,  undoubtedly,  it  can  base  its  conviction  without  any  further corroboration. It cannot be laid down as an absolute rule of law that the dying  declaration  cannot  form the  sole  basis  of  conviction  unless  it  is

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corroborated.  The  rule  requiring  corroboration  is  merely  a  rule  of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:

(i) There is neither rule of  law nor of  prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. (1976) 3 SCC 104)

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State  of  U.P. v.  Ram  Sagar  Yadav  (1985)  1  SCC  522; Ramawati Devi v. State of Bihar (1983) 1 SCC 211).

(iii)  This  Court  has  to  scrutinise  the  dying  declaration carefully and must ensure that the declaration is not the result of tutoring,  prompting  or  imagination.  The  deceased  had opportunity to observe and identify the assailants and was in a fit  state  to  make the declaration.  (K.  Ramachandra Reddy v. Public Prosecutor (1976) 3 SCC 618).

(iv) Where dying declaration is suspicious it should not be acted  upon  without  corroborative  evidence.  (Rasheed  Beg v. State of M.P. (1974) 4 SCC 264)

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. (1981) Supp. SCC 25)

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v.  State of U.P. (1981) 2 SCC 654)

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu (1980) Supp. SCC 455)

(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself  guarantees truth.  Surajdeo Oza v.  State of Bihar  (1980) Supp. SCC 769)

(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look

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up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P. (1988) Supp. SCC 152)

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan (1989) 3 SCC 390)”

The  above  well-settled  tests  relating  to  dying  declarations  and  the

principles  have been elaborately  considered in  a  number  of  judgments.

[Vide Khushal Rao v. State of Bombay, AIR 1958 SC 22; State of Uttar

Pradesh v. Ram Sagar Yadav, (1985) 1 SCC 552;  State of Orissa v.

Bansidhar Singh, (1996) 2 SCC 194; Panneerselvam v. State of Tamil

Nadu (2008) 17 SCC 190; Atbir v. Govt. of NCT of Delhi (2010) 9 SCC 1

and Umakant and Anr. v. State of Chhattisgarh (2014) 7 SCC 405].

31. Multiple Dying Declarations: In cases where there are more than

one  dying  declarations,  the  Court  should  consider  whether  they  are

consistent with each other.  If there are inconsistencies, the nature of the

inconsistencies must be examined as to whether they are material or not.

In cases where there are more than one dying declaration, it is the duty of

the  Court  to  consider  each  one  of  them  and  satisfy  itself  as  to  the

voluntariness and reliability  of  the declarations.   Mere fact  of  recording

multiple  dying declarations does not  take away the importance of  each

individual  declaration.   Court  has  to  examine  the  contents  of  dying

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declaration  in  the  light  of  various  surrounding  facts  and  circumstances.

This  Court  in  a  number  of  cases,  where  there  were  multiple  dying

declarations,  consistent  in material  particulars not  being contradictory to

each  other,  has  affirmed  the  conviction.   [Vide Vithal  v.  State  of

Maharashtra (2006) 13 SCC 54].   

32. In  Amol Singh v. State of  Madhya Pradesh (2008)  5 SCC 468,

while  discarding  the  two  inconsistent  dying  declarations,  laid  down  the

principles for consideration of multiple dying declarations as under:-

“13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying  declarations  but  the  reliability  thereof  that  adds  weight  to  the prosecution case. If a dying declaration is found to be voluntary, reliable and  made  in  fit  mental  condition,  it  can  be  relied  upon  without  any corroboration.  The  statement  should  be  consistent  throughout.  If  the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (See  Kundula Bala Subrahmanyam v.  State of A.P. (1993) 2 SCC 684)  However,  if  some  inconsistencies  are  noticed  between  one dying declaration and the other, the court has to examine the nature of the inconsistencies,  namely,  whether  they  are  material  or  not.  While scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.”

33. In Ganpat Mahadeo Mane v. State of Maharashtra (1993) Supp.(2)

SCC 242, there were three dying declarations. One recorded by the doctor;

the  second  recorded  by  the  police  constable  and  also  attested  by  the

doctor and the third dying declaration recorded by the Executive Magistrate

which was endorsed by the doctor.  Considering the third dying declaration,

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this Court held that all  the three dying declarations were consistent and

corroborated by medical evidence and other circumstantial evidence and

that they did not suffer from any infirmity.  

34. In Lakhan v. State of M.P. (2010) 8 SCC 514, this Court considered

a similar  situation where in  the first  dying declaration given to  a police

officer was more elaborate and the subsequent dying declaration recorded

by the Judicial Magistrate lacked certain information given earlier.  After

examining the contents of the two dying declarations, this Court held that

there  was  no  inconsistency  between  two  dying  declarations  and

non-mention of certain features in the dying declarations recorded by the

Judicial Magistrate does not make both the dying declarations inconsistent.

35. In the light of the above principles, I now advert to analyze the facts

of  the  present  case.   The  victim  made  three  dying  declarations:-  (i)

statement  recorded  by  PW-49  Dr.  Rashmi  Ahuja  immediately  after  the

victim was admitted to  the hospital;  (ii)  Dying  declaration (Ex.PW-27/A)

recorded by PW-27 SDM Usha Chaturvedi on 21.12.2012; and (iii) dying

declaration (Ex.PW-30/D) recorded by PW-30 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.PW-49/A),  the  prosecutrix  has  stated  that  more  than  two  men

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committed  rape  on  her,  bit  her  on  lips,  cheeks  and  breast  and  also

subjected  her  to  unnatural  sex.   In  the  second  dying  declaration

(Ex.PW-27/A)  recorded  by  PW-27,  the  victim  has  narrated  the  entire

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.  In the second dying declaration, she has

also stated that the accused were addressing each other with the names

like,  “Ram Singh,  Thakur, Raju,  Mukesh,  Pawan and Vinay”.   In the

second dying declaration, though there are improvements in giving details

of  the  incident,  names  of  the  accused  etc.,  there  are  no  material

contradictions between the first and second dying declaration (Ex.PW-49/A

and Ex.PW-27/A).   

36. On  25.12.2012  at  1:00  P.M,  PW-30  Pawan  Kumar,  Metropolitan

Magistrate recorded the statement by putting multiple choice questions to

the victim and by getting answers through gestures and writing.  The third

dying  declaration  (Ex.PW-30/D)  is  found  consistent  with  the  earlier  two

declarations.   It  conclusively  establishes  that  the  victim  was  brutally

gang-raped, beaten by iron rod, subjected to other harsh atrocities and was

finally dumped at an unknown place.  While making the third declaration,

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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.   

37. As per the settled law governing dying declarations, even if there are

minor  discrepancies  in  the  dying  declarations,  in  the  facts  and

circumstances  of  the  case,  the  Court  can  disregard  the  same  as

insignificant. A three-Judge Bench of this Court in Abrar v. State of Uttar

Pradesh  (2011)  2  SCC  750, held  that  it  is  practical  that  minor

discrepancies in recording dying declarations may occur due to pain and

suffering  of  the  victim,  in  case  the  declaration  is  recorded  at  multiple

intervals and thus, such discrepancies need not be given much emphasis.   

“12. It is true that there are some discrepancies in the dying declarations with regard to the presence or otherwise of a light or a torch. To our mind, however, these are so insignificant that they call for no discussion. It is also clear from the evidence that the injured had been in great pain and if there were minor discrepancies inter se the three dying declarations, they were to be accepted as something normal. The trial court was thus clearly wrong in rendering a judgment of acquittal solely on this specious ground. We, particularly, notice that the dying declaration had been recorded by the Tahsildar  after  the  doctor  had certified  the  victim as  fit  to  make a statement.  The doctor also appeared in the witness box to support the statement of the Tahsildar. We are, therefore, of the opinion, that no fault whatsoever could be found in the dying declarations.”

38. When a dying declaration is recorded voluntarily, pursuant to a fitness

report of a certified doctor, nothing much remains to be questioned unless,

it  is  proved that  the dying declaration was tainted with animosity and a

result of tutoring.  Especially, when there are multiple dying declarations

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minor  variations  does  not  affect  the  evidentiary  value  of  other  dying

declarations whether recorded prior  or  subsequent thereto.   In  Ashabai

and Anr. v. State of Maharashtra (2013) 2 SCC 224, it was held as under:

“15. ….As rightly observed by the High Court, the law does not insist upon the  corroboration  of  dying  declaration  before  it  can  be  accepted.  The insistence  of  corroboration  to  a  dying  declaration  is  only  a  rule  of prudence.  When  the  Court  is  satisfied  that  the  dying  declaration  is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination  of  the  declarant,  in  that  event,  there  is  no  impediment  in convicting the accused on the basis of such dying declaration. When there are  multiple  dying  declarations,  each  dying  declaration  has  to  be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other.”

39. Considering the present case on the anvil of the above principles, I

find that though there was time gap between the declarations, all the three

dying declarations are consistent with each other and there are no material

contradictions.  All the three dying declarations depict truthful version of the

incident, particularly the detailed narration of the incident concerning the

rape committed on the victim, insertion of iron rod and the injuries caused

to  her  vagina  and  rectum,  unnatural  sex  committed  on  the  victim  and

throwing the victim and PW-1 out of the moving bus.  All the three dying

declarations being voluntary, consistent and trustworthy, satisfy the test of

reliability.

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40. Dying Declaration by gestures and nods: Adverting  to  the

contention that  the third dying declaration made through gestures lacks

credibility, it is seen that the multiple choice questions put to the prosecutrix

by PW-30 Pawan Kumar, Metropolitan Magistrate, were simple and easily

answerable through nods and gestures.  That apart, before recording the

dying  declaration,  PW-30  Pawan  Kumar,  Metropolitan  Magistrate  had

satisfied  himself  about  fit  mental  state  of  the  victim  to  record  dying

declaration through nods and gestures.  There is nothing proved on record

to show that the mental capacity of the victim was impaired, so as to doubt

the third  dying declaration.   As  the victim was conscious,  oriented  and

meaningfully communicative, it is natural that the victim was in a position to

write the names of the accused persons and also about the use of long iron

rod.  The third dying declaration recorded through nods and gestures and

also by the victim’s own writing, writing the names of the accused inspires

confidence in the Court; the same was rightly relied upon by the trial Court

as well as the High Court.   

41. Dying  declaration  made  through  signs,  gesture  or  by  nods  are

admissible as evidence, if proper care was taken at the time of recording

the statement. The only caution the Court ought to take is to ensure that

the person recording the dying declaration was able to correctly notice and

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interpret the gestures or nods of the declarant.  While recording the third

dying declaration, signs/gestures made by the victim, in response to the

multiple choice questions put to the prosecutrix are admissible in evidence.  

42. A dying declaration need not necessarily be by words or in writing.  It

can be by gesture or by nod.  In  Meesala Ramakrishan v. State of A.P.

(1994) 4 SCC 182, this Court held as under:-

“20. …..that dying declaration recorded on the basis of nods and gestures is not only admissible but possesses evidentiary value, the extent of which shall depend upon who recorded the statement, what is his educational attainment, what gestures and nods were made, what were the questions asked — whether they were simple or complicated — and how effective or understandable the nods and gestures were.”  

The same view was reiterated in B. Shashikala v. State of A.P. (2004) 13

SCC 249.

43. In the case of rape and sexual assault, the evidence of prosecutrix is

very  crucial  and  if  it  inspires  confidence  of  the  court,  there  is  no

requirement of law to insist upon corroboration of the same for convicting

the accused on the basis of it.  Courts are expected to act with sensitivity

and appreciate the evidence of the prosecutrix in the background of the

entire facts of the case and not in isolation. In the facts and circumstances

of the present case as the statements of the prosecutrix in the form of three

dying declarations are consistent with each other and there are no material

contradiction, they can be completely relied upon without corroboration.  In

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the present case, the prosecutrix has made a truthful statement and the

prosecution  has  established  the  case  against  the  respondents  beyond

reasonable doubt. The victim also wrote the names of the accused persons

in  her  own  hand-writing  in  the  dying  declaration  recorded  by  PW-30

(Ex.PW-30/D).   Considering the facts and circumstances of  the present

case and upon appreciation of the evidence and material on record, I find

all the three dying declarations consistent, true and voluntary, satisfying the

test  of  probabilities  factor.  That  apart,  the dying declarations are  well-

corroborated  by  medical  and  scientific  evidence  adduced  by  the

prosecution.  Moreover,  the  same  has  been  amply  corroborated  by  the

testimony of eye witness-PW-1.

44. Corroboration of  Dying declaration by Medical  Evidence:- The

dying  declaration  is  amply  corroborated  by  medical  evidence  depicting

injuries to vagina and internal injuries to rectum and recto-vaginal septum

as noted by PW-49 Dr. Rashmi Ahuja and PW-50 Dr, Raj Kumar Chejara.

On the night  of  16.12.2012, the prosecutrix was medically examined by

PW-49 who recorded her injuries and statement in the MLC (Ex. PW-49/B).

On local examination, a sharp cut over right labia and a 6 cm long tag of

vagina  was  found  hanging  outside  the  introitus.  Vaginal  examination

showed bleeding and about 7 to 8 cm long posterior vaginal wall tear. A

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rectal tear of about 4 to 5 cm was also noticed communicating with the

vaginal  tear.  Apart  from  the  said  injuries  to  the  private  parts  of  the

prosecutrix,  guarding  and  rigidity  was  also  found  in  her  abdomen  and

several bruises and marks on face were noticed. Bruises and abrasions

around  both  the  eyes  and  nostrils  were  also  found.  Lips  were  found

edematous and left side of the mouth was injured by a small laceration.

Bite  marks  over  cheeks  and  breast,  below  areola,  were  also  present.

Bruises over the left  breast  and bite  mark in  interior  left  quadrant  were

prominent.          

45. During surgery, conducted on 16/17.12.2012 PW-50 Dr. Raj Kumar

Chejara (Ex.PW-50/A and Ex. PW-50/B) noted contusion and bruising of

jejunum,  large  bowel,  vaginal  tear,  and  completely  torn  recto-vaginal

septum. Small and large bowels were affected and were extremely bad for

any definitive repair. It was also noted that rectum was longitudinally torn

and the tear was continuing upward involving sigmoid colon, descending

colon which was splayed open. There were multiple perforations at many

places of ascending colon and calcum. Terminal illeum approximately one

and a half  feet loosely hanging in the abdominal cavity avulsed from its

mesentery.  Rest of the small bowel was non-existent with only patches of

mucosa at  places and borders of  the mesentery were contused.  While

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performing  second surgery  on  19th December, 2012,  surgery  team also

recorded findings that rectum was longitudinally torn on anterior aspect in

continuation with peritorial tear and other internal injuries.  On 26-12-2012

the condition of the prosecutrix was examined and it was decided to shift

her abroad for further treatment and she was shifted by an air-ambulance

to  Singapore  Mount  Elizabeth  Hospital.  The  prosecutrix  died  at  Mount

Elizabeth Hospital, Singapore on 29-12-2012 at 04:45 AM. Cause of death

is  stated  as  sepsis  with  multi  organ  failure  following  multiple  injuries.

(Ex.PW-34/A)  

46. Injuries  to  vagina,  rectum  and  recto-vaginal  septum  as  noted  by

PW-49  Dr.  Rashmi  Ahuja  and  PW-50  Dr.  Raj  Kumar  Chejara;  and  the

injuries  as  depicted  in  the  post-mortem  certificate,  including  the  other

external injuries which are evidently marks of violence during the incident,

exhibit  the  cruel  nature  of  gang  rape  committed  on  the  victim.   The

profused  bleeding  from  vagina  and  tag  of  vagina  hanging  outside;

completely recto-vaginal septum clearly demonstrate the violent act of gang

rape committed on the victim. The medical reports including the operation

theatre notes (Ex. PW-50/A and 50/B) and the injuries thereon indicates the

pain and suffering which the victim had undergone due to multiple organ

failure and other injuries caused by insertion of iron rod.    

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47. If considered on the anvil of settled legal principles, injuries on the

person of a rape victim is not even a sine qua non for proving the charge of

rape, as held in Joseph v. State of Kerala (2000) 5 SCC 197. The same

principle  was  reiterated  in  State  of  Maharashtra  v.  Suresh  (2000)  1

SCC 471.  As rightly held in  State of Rajasthan v. N.K., The Accused

(2000)  5 SCC 30,  absence of  injury on the person of  the victim is  not

necessarily an evidence of falsity of the allegations of rape or evidence of

consent on the part of the prosecutrix.  In the present case, the extensive

injuries found on the vagina/private parts  of  the body of  the victim and

injuries caused to the internal organs and all over the body, clearly show

that the victim was ravished.

48. Corroboration of dying declaration by scientific evidence:- The

DNA  profile  generated  from  blood-stained  pants,  t-shirts  and  jackets

recovered at the behest of A-2 Mukesh matched with the DNA profile of the

victim. Likewise, the DNA profile generated from the blood-stained jeans

and banian recovered at the behest of A-3 Akshay matched with the DNA

profile  of  the  victim.  DNA  profile  generated  from  the  blood-stained

underwear,  chappal  and  jacket  recovered  at  the  behest  of  A-4  Vinay

matched with the DNA profile of the victim.  DNA profiles generated from

the clothes of the accused recovered at their behest consistent with that of

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the victim is an unimpeachable evidence incriminating the accused in the

occurrence.   As  submitted  by  the  prosecution,  there  is  no  plausible

explanation from the accused as to  the matching of  DNA profile  of  the

victim  with  that  of  the  DNA profile  generated  from  the  clothes  of  the

accused. The courts below rightly took note of the DNA analysis report in

finding the accused guilty.  

49. Bite marks on the chest of the victim and Odontology Report: It

is also to be noted that the photographs of bite marks found on the body of

the victim, lifted by PW-66 Shri Asghar Hussain were examined by PW-71

Dr. Ashith B. Acharya. The analysis shows that at least three bite marks

were caused by accused Ram Singh whereas one bite  mark has been

identified to have been most likely caused by accused Akshay. This aspect

of Odontology Report has been elaborately discussed by the High Court in

paragraphs (91) to (94) of its judgment.  Odontology Report which links

accused Ram Singh and accused Akshay, with the case, strengthens the

prosecution case as to their involvement.

50. Going by the version of the prosecutrix, as per the dying declaration

and the evidence adduced, in  particular  medical  evidence and scientific

evidence, I find the evidence of the prosecutrix being amply corroborated.

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As discussed earlier, in  rape cases,  Court  should  examine the  broader

probabilities  of  a  case  and  not  get  swayed  by  discrepancies.   The

conviction can be based even on the sole testimony of  the prosecutrix.

However, in this case, dying declarations recorded from the prosecutrix are

corroborated in material particulars by:- (i) medical evidence; (ii) evidence

of  injured  witness  PW-1;  (iii)  matching  of  DNA profiles,  generated  from

blood-stained clothes of the accused, iron rod recovered at the behest of

deceased accused Ram Singh and various articles recovered from the bus

with the DNA profile of the victim; (iv) recovery of belongings of the victim at

the behest of the accused, viz. debit card recovered from A-1 Ram Singh

and Nokia mobile from A-4 Vinay. The dying declarations well corroborated

by medical and scientific evidence strengthen the case of the prosecution

by conclusively connecting the accused with the crime.

51. Use of Iron Rod and death of the victim: Case of the prosecution is

that the accused brutally inserted iron rod in the vagina of the prosecutrix

and pulled out internal organs of the prosecutrix.   The defence refuted the

use of iron rod by the accused on the ground that the complainant as well

as the victim did not mention the use of iron rods in their first statements.

Contention of the appellants is that when the victim had given details of the

entire incident to PW-49 Dr. Rashmi Ahuja, if iron rod had been used, she

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would not have omitted to mention the use of iron rods in the incident.  We

do not  find  force  in  such  a  contention,  as  ample  reliable  evidence  are

proved on record which lead to the irresistible conclusion that iron rod was

used and it was not a mere piece of concoction.     

52. Use of iron rods and insertion of the same in the private parts of the

victim is  established by the second dying declaration recorded by SDM

PW-27 Usha Chaturvedi, where the victim has given a detailed account of

the incident, role of the accused, gang rape committed on her and other

offences  including  the  use  of  iron  rods.   The  brutality  with  which  the

accused persons inserted iron rod in the rectum and vagina of the victim

and took  out  her  internal  organs  from the  vaginal  and  anal  opening  is

reflected in Ex.PW- 49/A. Further, medical opinion of PW-49 (Ex. PW-49/G)

stating that the recto-vaginal injury could be caused by the rods recovered

from the bus, strengthens the statement of the victim and the prosecution

version.  When the second and third dying declarations of the prosecutrix

are well corroborated by the medical evidence, non-mention of use of iron

rods in prosecutrix’s statement to PW-49 Dr. Rashmi Ahuja (Ex. PW-49/A),

does not materially affect the credibility of the dying declaration.  Insertion

of iron rod in the private parts of the prosecutrix is amply established by the

nature  of  multiple  injuries  caused  to  jejunum  and  rectum  which  was

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longitudinally  torn,  tag  of  vagina  hanging  out;  and  completely  torn

recto-vaginal septum.  

53. At the behest of accused Ram Singh two iron rods (Ex.P-49/1 and

Ex.P-49/2) were recovered from the shelf of the driver's cabin vide seizure

Memo Ex.PW-74/G.  The blood-stained rods deposited in the  Malkhana

were thereafter sent for chemical analysis.  The DNA report prepared by

PW-45 Dr. B.K Mohapatra, indicates that the DNA profile developed from

the blood-stained iron rods is consistent with the DNA profile of the victim.

Presence  of  blood  on  the  iron  rods  and  the  DNA profile  of  which  is

consistent with the DNA profile of the victim establishes the prosecution

case as to the alleged use of iron rods in the incident.

54. Evidence of PW-1:  In his first statement made on 16.12.2012, eye

witness PW-1 stated that he accompanied the prosecutrix to Select City

Mall,  Saket,  New Delhi  in an auto from Dwarka, New Delhi  where they

watched a movie till about 08:30 p.m.  After leaving the Mall, PW-1 and the

victim took an auto to Munirka from where they boarded the fateful bus.

After the prosecutrix and PW-1 boarded the bus, the accused surrounded

PW-1 and pinned him down in front side of the bus.  While the accused

Vinay and Pawan held PW-1, the other three accused committed rape on

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records admissible as a document,  paper print  out  of  electronic records

stored in optical or magnetic media produced by a computer, subject to the

fulfillment of the conditions specified in sub-section (2) of Section 65-B of

the  Evidence  Act.   When  those  conditions  are  satisfied,  the  electronic

record  becomes  admissible  in  any  proceeding  without  further  proof  or

production of the original, as evidence of any of the contents of the original

or  any  fact  stated  therein  of  which  direct  evidence  is  admissible.

Secondary  evidence  of  contents  of  document  can  also  be  led  under

Section 65 of the Evidence Act.

57. Having carefully gone through the deposition of PW-1, I find that his

evidence, even after  lengthy cross examination,  remains unshaken. The

evidence of a witness is not to be disbelieved simply because of  minor

discrepancies.  It is to be examined whether he was present or not at the

crime scene and whether he is telling the truth or not. PW-1 has clearly

explained as to how he happened to be with the victim and considering the

cogent evidence adduced by the prosecution, presence of PW-1 cannot be

doubted in any manner. PW-1 himself was injured in the incident and he

was  admitted  in  the  Casualty  Ward,  where  PW-51  Dr.  Sachin  Bajaj

examined him.  As per Ex.PW-51/A, lacerated wound over the vertex of

scalp, lacertated wound over left upper lip and abrasion over right knee

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were found on the person of PW-1.  Testimony of PW-1 being testimony of

an injured witness lends credibility to his evidence and prosecution’s case.

As rightly pointed out by the Courts below, no convincing grounds exist to

discard the evidence of PW-1, an injured witness.  

58. The question  of  the  weight  to  be  attached to  the  evidence  of  an

injured witness has been extensively discussed by this Court in Mano Dutt

and Anr. v State of Uttar Pradesh (2012) 4 SCC 79.  After exhaustively

referring to various judgments on this point, this Court held as under :-

“31. We may merely refer to Abdul Sayeed v. State of M.P.(2010)10 SCC 259 where this Court held as under: (SCC pp. 271-72, paras 28-30)

“28.  The  question  of  the  weight  to  be  attached  to  the evidence of a witness that was himself injured in the course of  the occurrence has been extensively  discussed by this Court. Where a witness to the occurrence has himself been injured in  the incident,  the testimony of  such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene  of  the  crime  and  is  unlikely  to  spare  his  actual assailant(s)  in  order  to  falsely  implicate  someone. ‘Convincing  evidence  is  required  to  discredit  an  injured witness.’  [Vide  Ramlagan Singh v.  State of  Bihar(1973)  3 SCC 881, Malkhan Singh v. State of U.P.(1975) 3 SCC 311, Machhi  Singh v.  State  of  Punjab  (1983)  3  SCC  470, Appabhai v. State of Gujarat1988 Supp SCC 241, Bonkya v. State of Maharashtra(1995) 6 SCC 447, Bhag Singh v. State of Punjab (1997) 7 SCC 712, Mohar v. State of U.P.(2002) 7 SCC  606 (SCC  p.  606b-c),  Dinesh  Kumar v.  State  of Rajasthan(2008)  8  SCC  270,  Vishnu v.  State  of Rajasthan(2009)  10  SCC  477,  Annareddy  Sambasiva Reddy v.  State  of  A.P.(2009)  12  SCC 546 and  Balraje v. State of Maharashtra(2010) 6 SCC 673.] 29.  While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab(2009) 9 SCC 719 where this Court  reiterated the special  evidentiary status accorded to

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the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) ‘28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the  tubewell.  In  Shivalingappa  Kallayanappa v.  State  of Karnataka1994 Supp (3) SCC 235 this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the  reason  that  his  presence  on  the  scene  stands established in case it  is proved that he suffered the injury during the said incident. 29.  In  State of U.P. v.  Kishan Chand(2004) 7 SCC 629 a similar view has been reiterated observing that the testimony of  a stamped witness has its  own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was  present  during  the  occurrence.  In  case  the  injured witness  is  subjected  to  lengthy  cross-examination  and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana(2006) 12 SCC 459). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.’ 30. The law on the point can be summarised to the effect that  the  testimony  of  the  injured  witness  is  accorded  a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt  guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of  his  evidence  on  the  basis  of  major  contradictions  and discrepancies therein.”

59. After  the  accused  were  arrested,  they  made  disclosure  statements.

Pursuant to the said disclosure statements, recoveries of various articles were

effected which included clothes of the accused and articles belonging to PW-1

and the prosecutrix.  The Samsung Galaxy Duos mobile phone recovered

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from A-2 was identified by the complainant in the court as belonging to him

and testimony of the complainant was further fortified by the testimony of

PW-56 Sandeep Dabral, Manager, Spice Mobile Shop, who stated that the

said Samsung Mobile bearing the respective IMEI number was sold in the

name of the complainant. Also, the metro card and silver ring recovered at

the behest of A-3 Akshay were identified by PW-1 in court as belonging to

him.  The  silver  ring  was  also  identified  by  the  complainant  in  the  TIP

proceedings conducted on 28.12.2012. Likewise, the Hush-Puppies shoes

recovered at  the behest  of  A-4 Vinay and wrist  watch of  Sonata  make

recovered  at  the  behest  of  A-5  Pawan  were  identified  by  PW-1  in  TIP

proceedings as belonging to him. Recoveries of articles of PW-1 and other

scientific evidence, irrebutably establish the presence of PW-1 at the crime

scene and strengthens the credibility of  PW-1’s testimony.  

60. Apart  from  the  recoveries  made  at  the  behest  of  the  accused,

presence of  PW-1 is also confirmed by DNA profile generated from the

blood-stained mulberry leaves and grass collected from Mahipalpur (seized

vide Memo Ex. PW-74/C) where both the victims were thrown after  the

incident.  As per the Chemical Analysis Report, DNA profile generated from

the blood-stained murberry leaves collected from the Mahipalpur flyover

were found to be of  male origin and consistent  with the DNA profile  of

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PW-1. This proves that PW-1 was present with the victim at the time of the

incident  and  both  of  them  were  together  thrown  out  of  the  bus  at

Mahipalpur.  

61. Further, as discussed infra, pursuant to the disclosure statement of

the accused, clothes of accused, some of which were blood-stained and

other  incriminating  articles  were  recovered.  PW-45  Dr.  B.K.  Mohapatra

matched  the  DNA profiles  of  the  blood  detected  on  the  clothes  of  the

accused with that of the complainant and the victim.  One set of DNA profile

generated from jeans-pant of the accused Akshay (A-3) matched the DNA

profile of PW-1. Likewise, one set of DNA profile generated from the sports

jacket of accused Vinay (A-4) was found consistent with the DNA profile of

PW-1.  Also, one set of DNA profile generated from black coloured sweater

of Accused Pawan Gupta (A-5) was found consistent with the DNA profile

of PW-1.  Result of DNA analysis further corroborates the version of PW-1

and strengthens the prosecution case.  DNA Analysis Report, as provided

by PW-45 is  a vital  piece of  evidence connecting the accused with the

crime.  

62. Matching of DNA profile generated from the bunch of hair recovered

from the floor of the bus near the second row seat on the left side, with

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DNA  profile  of  the  complainant  is  yet  another  piece  of  evidence

corroborating the version of PW-1[vide Ex.PW-45/B].  Further, DNA profile

developed from burnt cloth pieces, recovered from near the rear side entry

of the bus was found consistent with DNA profile of PW-1; and this again

fortifies the presence of PW-1 with the victim in the bus.

63. Contention of the appellants is that there are vital contradictions in

the statements of PW-1.  It is contended that initially PW-1 did not give the

names of the accused in the FIR and that he kept on improving his version,

in  particular,  in  the  second  supplementary  statement  recorded  on

17.12.2012 in which he gave the details of the bus involved. To contend

that  testimony  of  PW-1  is  not  trustworthy,  reliance  is  placed  on Kathi

Bharat Vajsur And Anr. v State of Gujarat  (2012) 5 SCC 724.  In Kathi

Bharat  Vajsur’s  case,  this  Court has  observed  that  when  there  are

inconsistencies or contradictions in oral evidence and the same is found to

be  in  contradiction  with  other  evidence  then  it  cannot  be  held  that  the

prosecution has proved the case beyond reasonable doubt.   

64. While appreciating the evidence of a witness, the approach must be

to consider the entire evidence and analyze whether the evidence as a

whole gives a complete chain of facts depicting truth.  Once that impression

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is formed, it is necessary for the court to scrutinize evidence particularly

keeping  in  view  the  prosecution  case.   Any  minor  discrepancies  or

improvements not touching the core of the prosecution case and not going

to the root of the matter, does not affect the trustworthiness of the witness.

Insofar as the contention that PW-1 kept on improving his version in his

statement recorded at various point of time, it is noted that there are indeed

some improvements in his version but, the core of his version as to the

occurrence remains consistent.  More so, when PW-1 and the victim faced

such a traumatic experience, immediately after the incident, they cannot be

expected to give minute details of the incident.  It would have taken some

time for them to come out of the shock and recollect the incident and give a

detailed version of the incident. It is to be noted that in the present case,

the statements of PW-1 recorded on various dates are not contradictory to

each  other.  The  subsequent  statements  though  are  more  detailed  as

compared to the former ones, in the circumstances of the case, it cannot be

said  to  be  unnatural  affecting  the  trustworthiness  of  PW-1’s  testimony.

There  is  hardly  any  justification  for  doubting  the  evidence  of  PW-1,

especially when it is corroborated by recovery of PW-1’s articles from the

accused and scientific evidence.  

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65. The trial  Court  as  well  as  the  High Court  found PW-1’s  evidence

credible and trustworthy and I find no reason to take a different view. The

view of the High Court and the trial court is fortified by the decisions of this

court  in  Pudhu Raja and Anr. v. State  Rep.  by Inspector  of  Police,

(2012) 11 SCC 196,  Jaswant Singh v. State of Haryana (2000) 4 SCC

484  and  Akhtar and Ors. v. State of Uttaranchal (2009) 13 SCC 722.

Further, the evidence of PW-1 is amply strengthened by scientific evidence

and recovery of the incriminating articles from the accused.  The alleged

omissions and improvements in the evidence of PW-1 pointed out by the

defence do not materially affect the evidence of PW-1.   

66. Recovery  of  the  bus  and  its  Involvement  in  the  incident:

Description  of  the  entire  incident  by  PW-1  and  the  victim  led  the

investigating team to the Hotel named “Hotel Delhi Airport”, where PW-1

and the victim were dumped after the incident.  PW-67 P.K. Jha, owner of

Hotel  Delhi  Airport  handed over the pen drive containing CCTV footage

(Ex.P-67/1)  and  CD (Ex.P-67/2)  to  the  Investigating  Officer  which  were

seized.  From the CCTV footage, the offending bus bearing registration

No.DL-1PC-0149 was identified by PW-1.  The bus was seized from Ravi

Dass Camp and Ram Singh (A-1) was also arrested.

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67. PW-81 Dinesh Yadav is the owner of the bus bearing Registration

No.DL-1PC-0149 (Ex.P-1).  PW-81 runs buses under the name and style

“Yadav Travels”.  On interrogation, PW-81 Dinesh Yadav stated that A-1

Ram Singh was the driver of the bus No.DL-1PC-0149 in December, 2012

and A-3  Akshay  Kumar  Singh  was his  helper  in  the  bus.   PW-81 also

informed  the  police  that  the  bus  was  attached  to  Birla  Vidya  Niketan

School,  Pushp  Vihar,  New Delhi  to  ferry  students  to  the  school  in  the

morning and that  it  was also engaged by a Company named M/s.  Net

Ambit in Noida, to take its employees from Delhi to Noida.   PW-81 also

informed the police that after daily routine trip, A-1 Ram Singh used to park

the  bus  at  Ravi  Dass  Camp,  R.K.  Puram,  near  his  residence.   PW-81

further informed that on 17.12.2012, the bus as usual went from Delhi to

Noida to take the Staff of M/s Net Ambit to their office. The recovery of the

bus  (Ex.P-1)  and  evidence  of  PW-81  led  to  a  breakthrough  in  the

investigation that A-1 Ram Singh was the driver of the bus and A-3 Akshay

was the cleaner of the bus.   

68. Furthermore, in order to prove that A1 Ram Singh (Dead) was the

driver  of  the  bus  No.DL-1PC-0149  (Ex.P-1),  PW-16  Rajeev  Jakhmola,

Manager (Administration) of Birla Vidya Niketan School, Pushp Vihar, New

Delhi was examined.  In his evidence, PW-16 stated that PW-81, Dinesh

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Yadav  had  provided  the  school  with  seven  buses  on  contract  basis

including the bus No.DL-1PC-0149 (Ex.P-1) and that A-1 Ram Singh was

its driver.  In his interrogation by the police, PW-16 had also handed over

Ram Singh’s driving licence alongwith copy of agreement of the school with

the owner of the bus and other documents.  By adducing the evidence of

PW-81 Dinesh Yadav and PW-16 Rajeev Jakhmola, the prosecution has

established that the bus in question was routinely driven by A-1 Ram Singh

(Dead) and A-3 Akshay Kumar was the helper in the bus.    

69. On 17.12.2012, a team of experts from CFSL comprising PW-45    Dr.

B.K. Mohapatra, PW-46 A.D. Shah, PW-79 P.K. Gottam and others, went to

the Thyagraj Stadium and inspected the bus Ex.P1. On inspection, certain

articles were seized from the said bus vide seizure memo     Ex.PW-74/P. It

is brought on record that the samples were diligently collected and taken to

CFSL, CBI by SI Subhash (PW-74) vide RC No. 178/21/12 for examination.

The  DNA  profile  of  material  objects  lifted  from  the  bus  bearing

No.DL-1PC-0149 were  found  consistent  with  that  of  the  victim  and the

complainant.  Matching  of  the  DNA  profile  developed  from  the  articles

seized from the bus DL-1PC-0149 like hair recovered from the third row of

the bus on the left  side with  the DNA profile  of  PW-1,  strengthens the

prosecution  case  as  to  the  involvement  of  the  offending  bus  bearing