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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURICTION

REVIEW PETITION (CRL.) NOS.671­673 OF 2017

IN

CRIMINAL APPEAL NOS.608 & 609­610 OF 2017

VINAY SHARMA & ANR. ... PETITIONERS

VERSUS

STATE OF NCT OF DELHI & ORS. ... RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

These review petitions have been filed by two

applicants Vinay Sharma­accused No.1 and Pawan Kumar

Gupta­accused No.2 to review the judgment of this Court

dated 05.05.2017 by which judgment this Court had

dismissed the criminal appeals filed by the petitioners

challenging the order of the High Court confirming the

death reference and dismissing the criminal appeals filed

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by the petitioners against the order of conviction and

award of death sentence.  

2. Both the petitioners were tried for rape and murder

of a 23 years' age lady ­Nirbhaya (changed name). The

trial court convicted the petitioners along with three

others and awarded death sentence to all the four

accused. Death reference No.6 of 2013 Was sent by the

trial court to the High Court. Separate criminal appeals

were also filed by the petitioners challenging the

judgment of the trial court. Delhi High Court vide its

judgment dated 13.03.2014 confirmed the death penalty to

all the four convicts including petitioners, Vinay

Sharma, appellant No.1 in Criminal Appeal No. 609 of

2017, Pawan Kumar Gupta, appellant No.1 in Criminal

Appeal Nos.608 of 2017. The appeals were dismissed by the

judgment of this Court dated 05.05.2017. The petitioners

aggrieved by the said judgment dated 05.05.2017 by which

all the appeals were dismissed have filed these review

petitions praying for reviewing the judgment dated

05.05.2017.

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3. We have heard the learned counsel, Shri A.P. Singh

appearing for the petitioners and Shri Sidharth Luthra,

learned senior counsel for the State.  

4. Shri A.P. Singh learned counsel for the peititoners

in support of the review petitions has urged several

grounds. Shri Singh submits that death penalty in India

needs to be abolished. He submits that there are several

reasons for opposing death penalty which broadly

speaking, they fall under two categories, moral and

practical. This also goes against the principle of non­

violence that India has advocated for decades.  In the

year 1966, the Bill introducing death penalty abolition

was passed by the House of Parliament in England. He

further submitted that  in a large number of countries

death penalty has been abolished. In his submission he

has referred the names of several Latin American

countries and  several  Australian States.  

5. Apart from above, several other contentions have been

advanced by Shri A.P. Singh which we proceed to note in

seriatim. Shri Singh submits that investigation and trial

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has been carried out with the sole purpose of survival of

the prosecuting agency. The investigation is engaged in

maladroit effort to book the vulnerable and the innocent

so as to disguise and cover there inefficiency to catch

the real culprits. The political class is using

investigating agencies as tools for partisan political

objective.  

6. PW.1, during his cross­examination was confronted

with his statement Ex.PW­1/A qua the factum of not

disclosing the use of iron rod, the description of Bus,

the name of assailants either in MLC Ex.PW­51/A or in his

complaint Ex.PW­1/A. The Bus, Ex.P­1 has been falsely

implicated in the present case. CCTV footage was not

properly examined to check all possible Buses plying on

the said route.   The Bus was taken to Tyagraj Stadium

instead of the Police Station to avoid the media and to

facilitate the planting of evidence.  

7. That the three dying declarations have been contrived

and deserved to be kept out of consideration and the

dying declarations do not inspire confidence for

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variations in them relating to the number of assailants,

the description of Bus, the identity of accused etc. If

at all any dying declaration is to be relied on, it is

first dying declaration made on 16.12.2012 and recorded

by PW­49, Dr. Rashmi Ahuja, which dying declaration only

states that there were 4 to 5 persons in the Bus.  

8. In the statement recorded in MLC Ex.PW­49/A

prosecutrix has neither named any of the accused nor

mentioned the factum of iron rod being used by the

accused persons. The prosecutrix could not have given

such a lengthy dying declaration on 21.12.2012 when she

was continuously on morphine. Third dying declaration

recorded by the Metropolitan Magistrate, PW­30, on

25.12.2012, through gesture and writings is controverted

by allegations of false medical fitness certificate and

absence of videography.   The use of iron rod was not

mentioned by PW­1 in his statement. Had the iron rod

been really inserted through the vagina, it would have

first destroyed the uterus before the intestines were

pulled out. There were no rod related injuries in her

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uterus and medical science too does not assist the

prosecution in their claim.  

9. The DNA test can not be treated as accurate, since

there was blood transfusion as the prosecutrix required

blood and when there is mixing of blood, the

DNA profile is likely to differ.   

10. The High Court has failed to appreciate that

petitioner No.1, Vinay Sharma on the date of incident and

time was in a musical programme arranged by S.C.C. unit

of Church in his locality and he was there from 8.15 p.m.

to 11/12 p.m. on 16.12.2012. The presence of petitioner

No.1 in musical show has been witnessed by defence

witnesses who had deposed before the Court. Ram Babu,DW­

10 had also videographed the show from the mobile phone

of petitioner No.1 which was produced before the trial

court.  

11. The application for ossification test submitted by

petitioner No.1 was wrongly turned down by the trial

court. The petitioner was actually born on 01.03.1995 but

his date of birth given by his father was 01.03.1994

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which was only for the purpose of getting him admitted in

the MCD School. The petitioner was only 17 years 8 months

and 15 days old at the time of incident.  

12. The real date of birth of petitioner No.2 is

08.10.1996 and he was also minor on the date of incident.

The petitioners were not habitual offenders. Number of

dacoits have surrendered for the last several decades and

have reformed themselves.  

13. Shri Sidharth Luthra, learned senior counsel

appearing for the State refuting the submissions of the

petitioners submitted that the petitioners already in a

long hearing of the appeals before this Court have made

all possible submissions which have been considered by

this Court while deciding the appeals on 05.05.2017, the

review petition is nothing but an effort by the

petitioners to re­argue the appeals on merits which is

not permissible under the law. No grounds have been made

out to consider the review petitions. In so far as the

submission of the learned counsel for the petitioners

that the death penalty be abolished in India, Shri Luthra

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submits that the said submission need not to be gone into

in  these  review petitions. It is  submitted  that death

penalty has already been upheld by this Court by the

Constitution Bench of this Court in  Bachan Singh vs.

State of Punjab, (1980) 2 SCC 684. He submits that death

penalty being still in the statute book it is not open

for the petitioners to argue that the death penalty be

abolished in  this country. The  abolition  of the death

penalty is a legislative function and unless the

Parliament passes an amending Act it is not for the

Courts to consider the said submission.  

14. With regard to  the submissions  of the petitioners

that investigation was faulty and prosecuting agencies

had roped in the petitioners, it is submitted that

prosecution was scientifically carried out in efficient

manner which has also been noted by this Court and any

person against the prosecution are unjustified and have

to be ignored.  

15. The evidence of PW­1 and all infirmities which are

sought to be pointed out in these review petitions have

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already been considered and gone into by this Court.

Learned counsel has referred to in paragraphs 65 to 97

and 425 to 434 of the judgment where this Court has

thoroughly considered all submissions regarding evidence

of PW­1 and this Court has rejected the inconsistencies,

shortcomings and omissions as being pointed by the

petitioners. Coming to the submission that the Bus, P­1

has been   falsely implicated, Shri Luthra submits that

apart from CCTV footage where Bus was noticed twice

passing in front of the hotel, there were other

evidences, namely finger prints, wound stains and other

objects obtained from the Bus which proved that the Bus

was involved in the incident. Shri Luthra has referred to

paragraphs 104 and 105 where this argument has been noted

and rejected by this Court.

16. On the submissions raised by the learned counsel for

the petitioners regarding dying declarations, Shri Luthra

submits that all arguments pertaining to dying

declarations have  been considered and dealt with by this

Court in paragraphs 148 to 192 of the judgment dated

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05.05.2017 and petitioners cannot be allowed to reagitate

the same which have already been considered and rejected

by  this Court.  With regard  to first dying declaration

which was the case history recorded by Dr. Rashmi Ahuja,

this Court has  considered all aspects and had already

held that there was no infirmity in noticing the facts as

could be disclosed by the prosecutrix at that time when

she had undergone traumatic experience immediately

before.  

17. The non­mention of use of iron rod in the MLC or PW­

1's statement has also been considered by this Court and

this Court had held and found use of iron rod from the

evidence. The statement of PW­1 pertaining to use of iron

rod to injure the prosecutrix has also been considered

and noticed by this Court. The DNA reports have been

examined in detail by this Court including blood

transfusion which has also been considered in paragraphs

233­234. With regard to alibi of Vinay Sharma that he, at

the relevant time, was in a musical programme, this Court

in its judgment dated 05.05.2017 has considered and

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rejected the plea of alibi after consideration of Defence

evidence. The same argument cannot be allowed to be

raised in the review petition.  In so far as the argument

that petitioner No.1, Vinay  Sharma was a juvenile at the

time of the commission of the offence, Shri Luthra

mentioned order of the trial court dated 10.01.2013

which mentioned that age verification report of Vinay and

Pawan have been received and they do not dispute the age

verification report filed by the IO. The prosecuiton has

placed the certified copy of the admission register of

the first attended school along with the certified copy

of the admission form of the first class of accused­Vinay

Sharma and trial court after considering all evidences

had held that Vinay Sharma was more than 18 years of age

at the time of commission of offence. On the claim that

Pawan was a juvenile, Shri Luthra referred to the order

dated 10.01.2013 where age verification report of Pawan

has been received and also certified copies had been

filed on record. The report had referred to the written

statement of the parents of both these accused where they

have confirmed the age of their wards.   There was no

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infirmity in the trial court taking decision that both

were major and the trial court proceeded accordingly.

There is no substance in the submission raised by the

learned counsel for the petitioners.  

18. We have considered the submissions of the parties and

perused the records.

19. Before we enter into the submissions raised in these

review petitions, it is useful to recapitulate the scope

and grounds available for exercise of jurisdiction by

this Court under Article 137. Order XLVII Rule 1 of the

Supreme Court Rules, 2013 dealing with review is as

follows:  

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

20. An application to review a judgment is not to be

lightly entertained and this Court could exercise its

review jurisdiction only when those grounds are made out

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as provided in Order XLVII Rule 1 of the Supreme Court

Rules, 2013 framed under Article 145 of the Constitution

of India.  This Court in Sow Chandra Kante and another v.

Sheikh Habib, (1975) 1 SCC 674  speaking through Justice

V.R. Krishna Iyer on review has stated the following in

para 10:

“10. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.”

21. As per rule, review in a criminal proceeding is

permissible only on the ground of error apparent on the

face of the record. This Court in  P.N. Eswara Iyer and

others v. Registrar, Supreme Court of India,  (1980) 4

SCC 680  while examining the review jurisdiction of this

Court  vis a vis criminal and civil proceedings had made

the following observations in paras 34 and 35:   

“34. The rule, on its face, affords a wider set of grounds for review for orders in civil proceedings,  but  limits  the  ground vis­a­vis

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criminal proceedings  to “errors apparent  on the face  of the record”. If at all, the concern of the law to avoid judicial error should be heightened when life or liberty is in peril since civil penalties are often less traumatic. So, it is reasonable to assume that the framers of the rules could not have intended a restrictive review over criminal orders or judgments. It is likely to be the other way about. Supposing an accused is sentenced to death by the Supreme Court and the “deceased” shows up in court and the court discovers the tragic treachery of the recorded testimony. Is the court helpless to review and set aside the sentence of hanging? We think not. The power to review is in Article 137 and it is equally wide in all proceedings. The rule merely canalises the flow from the reservoir of power. The stream cannot stifle the source. Moreover, the dynamics of interpretation depend on the demand of the context and the lexical limits of the test. Here “record” means any material which is already on record or may, with the permission of the court, be brought on record. If justice summons the Judges to allow a vital material in, it becomes part of the record; and if apparent error is there, correction becomes necessitous.

35. The purpose is plain, the language is elastic and interpretation of a necessary power must naturally be expansive. The substantive power is derived from Article 137 and is as wide for criminal as for civil proceedings. Even the difference in phraseology in the rule (Order 40 Rule 2) must, therefore, be read to encompass the same area and not to engraft an artificial divergence productive of anomaly. If the expression “record” is read to mean, in its

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semantic sweep, any material even later brought on record, with the leave of the court, it will embrace subsequent events, new light and other grounds which we find in Order 47 Rule 1, CPC. We see no insuperable difficulty in equating the area in civil and criminal proceedings when review power is invoked from the same source.”

22. The scope of review jurisdiction has been considered

by this Court in a number of cases where well settled

principles  have been reiterated time and  again. It is

sufficient to refer to judgment of this Court in Kamlesh

Verma vs. Mayawati and others (2013) 8 SCC 320, where

this Court has elaborately considered the scope of

review. In paras 17, 18, 20.1 and 20.2 following has been

laid down:

“17.  In a review petition, it is not open to the Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. This Court in Kerala SEB v.  Hitech Electrothermics & Hydropower Ltd. held as under: (SCC p. 656, para 10)

“10. … In a review petition it is not open to this Court to reappreciate the evidence and

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reach a different conclusion, even if that is possible. The learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.”

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

“11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once

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such  a prayer  had  been  refused, no  review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is  not  rehearing  of an  original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power  of  review can be  exercised  with extreme care, caution and circumspection and only in exceptional cases.

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

20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason.

The words “any other sufficient reason” have

been interpreted in  Chhajju Ram  v.  Neki  and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius to mean “a reason sufficient on grounds at

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least analogous to those specified in the rule”. The same principles have been reiterated in  Union of India  v.  Sandur Manganese & Iron Ores Ltd.

20.2.  When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”

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23. This very Bench speaking through one of us (Justice

Ashok Bhushan) had  occasion to  consider the ambit and

scope of the review Jurisdiction in a criminal proceeding

in Vikram Singh alias Vicky Walia and another vs. State

of Punjab and another (2017) 8 SCC 518.   In para 23 of

the judgement following has been stated:  

“23. In view of the above, it is clear that scope, ambit and parameters of review jurisdiction are well defined. Normally in a criminal proceeding, review applications cannot be entertained except on the ground of error apparent on the face of the record. Further, the power given to this Court under Article 137 is wider and in an appropriate case can be exercised to mitigate a manifest injustice. By review application an applicant cannot be allowed to reargue the appeal on the grounds which were urged at the time of the hearing of the criminal appeal. Even if the applicant succeeds in establishing that there may be another view possible on the conviction or sentence of the accused that is not a sufficient ground for review. This Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in the earlier decision due to judicial fallibility. There has to be an error apparent on the face of the record leading to miscarriage of justice to exercise the review jurisdiction under Article 137 read with Order 40 Rule 1. There has to be a material error manifest on the face of the record with results in the miscarriage of justice.”

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24. We first take up the submission of Shri A.P. Singh

regarding the abolition of death penalty in this counrty.

The Constitution Bench of this Court in  Bachan Singh

(supra)  examined the constitutional validity of death

penalty as provided under Section 302 of IPC. After

elaborately considering the existence of death penalty in

the Penal Code, constitutional provisions of Articles 19

and 21, and international covenant on civil and criminal

rights, this court held that death penalty as contained

in Penal Code is constitutionally valid. In paragraph 132

following was held:

“132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302, Penal Code on the ground of reasonableness in the light Of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioner's argument that retention of death penalty in the impugned

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25. The submission of Mr. Singh that death penalty has

been abolished by the Parliament of U.K. in the year 1966

and several Latin American countries and Australian

States have also abolished death penalty is no ground to

efface the death penalty from the statute book of our

country. So far the death penalty remains in the Penal

Code the Courts cannot be held to commit any illegality

in awarding death penalty in appropriate cases.

26. In view of the above, no ground to review judgment is

made out on the strength of the above submissions.

27. Now, coming to the submissions made by Shri Singh

attacking the investigation and prosecution agencies,

suffice it to say that submissions and arguments are

general in nature and not based on any substantial ground

so as to point out any such error in the trial so as to

furnish any ground to review any judgment.  

28. The submission made by Shri Singh attacking the

evidence of PW­1 sole eye­witness, who was also injured

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in the incident need not to be considered in these review

petitions. All submissions impeaching evidence of PW­1

were made when the appeals were heard on merit.   This

Court had considered all submissions attacking the

evidence of PW­1 in paragraphs 65­97 and 425 to 434. This

Court after examining the relevant evidences had relied

on evidence of PW­1. In the review petitions, petitioners

cannot ask the Court to re­hear the appeals on merits

which submissions had already been noted, considered and

rejected.

29. The submission of Shri Singh that Bus Ex.P­1, has

been falsely implicated is also stated to be rejected.

All these submissions were considered by this Court while

delivering the judgment in paragraphs 98­107. This Court

has rejected the submission of the petitioners that it

was a case of plantation of Bus, the Bus was found to be

involved in the incident from the evidence on record.

30. Contention of Mr. V.K. Singh is that the bus No. DL 1

PC 0149 (Ext. P/1) has been falsely implicated and the

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CCTV Footage cannot be relied upon and this aspect is not

properly considered by this Court.  The exact points now

raised by Mr. Singh in para (M) of the review petition

were considered by this Court in paras (98) to (113) and

paras (435) to (439).   In para (101), this Court has

referred to the evidence of PW­76 Gautam Roy, HoD,

Computer Cell, Forensic Division who has examined the

CCTV Footage received by him in a Pen Drive in two sealed

parcels.  In paras (98) to (113), this Court has referred

to the evidence regarding retrieval of CCTV Footage in

the presence of PW­67 Pramod Kumar Jha, owner of the

hotel at Delhi Airport and the photographs taken thereon

to prove the involvement of the bus No. DL 1 PC 0149

(Ext. P/1).

31. To show the involvement of the bus No. DL 1 PC 0149

(Ext. P/1), in paras (108) to (113), this Court has also

elaborately considered the evidence of PW­81, Dinesh

Yadav, owner of the bus and PW­16 Rajeev Jakhmola,

Manager (Admn.) of Birla Vidya Niketan School, Pushp

Vihar who have stated that the bus No. DL 1 PC 0149 (Ext.

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P/1) was routinely driven by Ram Singh (deceased accused)

and he was the driver of the bus.

32. Involvement of the bus No. DL 1 PC 0149 (Ext. P/1)

was also held to be substantiated by matching of DNA

profile of the material objects lifted from the bus No.

DL 1 PC 0149 (Ext. P/1) which were found consistent with

that of the victim and the complainant.  In paras (431)

and (438), the same has been well­considered.   Matching

of DNA profile developed from the articles seized from

the bus like ‘hair’ recovered from the third left row of

the bus and the blood­stained seat cover of the bus and

the bunch of hair recovered from the floor of the bus

with the DNA profile of the victim was held to be

unimpeachable evidence establishing the involvement of

the bus in the commission of the offence.  The oral and

scientific evidence has been elaborately considered by

this Court in upholding the findings of the High Court as

to the involvement of the bus.   The petitioner/accused

cannot reagitate the same point again.

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33. Mr. Singh has  inter alia  made various submissions

regarding reliability of the three dying declarations:­

(i) failure to disclose the names of any of the accused

in the first dying declaration (Ext.PW­49/A) and

therefore, the second and third dying declarations are

tutored; (ii) the three dying declarations cannot be

relied upon due to variations and improvements; and (iii)

sudden appearance of the name of ‘Vipin’ (in the third

dying declaration) makes it doubtful and no explanation

is offered.

34. The victim made three dying declarations:­ (i)

statement recorded by PW­49 Dr. Rashmi Ahuja immediately

after the victim was admitted to the hospital;   (ii)

Dying declaration (Ex.PW­27/A) recorded by PW­27 SDM Usha

Chaturvedi on 21.12.2012; and (iii) dying declaration

(Ex.PW­30/D) recorded by PW­30 Pawan Kumar, Metropolitan

Magistrate on 25.12.2012 at 1:00 p.m. by multiple choice

questions and recording answers by gestures and writing.

In the first dying declaration (Ex.PW­49/A), the

prosecutrix has stated that more than two men committed

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rape on her, bit her on lips, cheeks and breast and also

subjected her to unnatural sex. In the second dying

declaration (Ex.PW­27/A) recorded by PW­27, the victim

has narrated the entire incident in great detail,

specifying the role of each accused, rape committed by

number of persons, insertion of iron rod in her private

parts, description of the bus, robbery committed and

throwing of both the victims out of the moving bus in

naked condition.  On 25.12.2012 at 1:00 p.m., PW­30 Pawan

Kumar, Metropolitan Magistrate recorded the statement by

putting multiple choice questions to the victim and by

getting answers through gestures  and writing.   While

making the third declaration, the victim also tried to

reveal the names of the accused by writing in her own

handwriting viz. “Ram Singh, Mukesh, Vinay, Akshay,

Vipin, Raju”.

35. All the contentions raised regarding the three dying

declarations have been considered in detail in paras

(148) to (192) and paras (395) to (417). Considering all

the three dying declarations, in the light of well­

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settled principles, this Court held that all the three

dying declarations are true, voluntary and consistent.

Insofar as third dying declaration, this Court, in paras

(408) to (412) held that the dying declaration made

through signs, gestures or by nods are admissible as

evidence and that proper care was taken by PW­30 Pawan

Kumar, Metropolitan Magistrate and the third dying

declaration recorded by in response to the multiple­

choice questions by signs, gestures made by the victim

are admissible as evidence.   In the third dying

declaration, the victim also wrote the names of the

accused persons “Ram Singh, Mukesh, Vinay, Akshay, Vipin,

Raju”.   So far as the name of accused Vipin written by

the prosecutrix in the third dying declaration has been

elaborately considered by this Court in paras (150) and

(188) of the judgment.

36. Non­mention of use of iron rod in MLC, Ex.PW­49/A has

also been noticed by this Court in its judgment and this

Court has given reasons for not finding any fault in the

MLC, Ex.PW­49/A. The submissions of Shri Singh that on

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21.12.2012 the prosecutrix was not fit to record her

dying declaration has also been rejected. With regard to

the morphine injection which was given to prosecutrix,

the statement of Doctor, the time of injection and the

effect of morphine was categorically noted and considered

and no fault was found with the second dying declaration.

The submission having been noted, considered and dealt

with by this Court in the judgment, the petitioners

cannot be allowed to reagitate the same issue again and

again. Non­mention of use of iron rod in the statement of

PW­1 has also been noted in detail by this Court. That in

second dying declaration on 21.12.2012 the prosecutrix

has mentioned the use of iron rod by which she was

injured which is also noted by the Court. This Court

noted the injuries and medical evidence and has concluded

that accused had used iron rod. Those submissions having

been raised, dealt with by this Court in the main

judgment, the petitioners cannot be allowed to raise the

same again.

37. With regard to reports regarding DNA, this Court

elaborately considered the whole concept of DNA and

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reports received. The attack of the petitioners on the

ground of blood transfusion and other submissions on DNA

report having been considered and has rightly been relied

on by this Court, the submissions pertaining to DNA are

nothing but repitition of submissions which have been

noted and rejected by this Court in the main judgment.

38. Contention of Mr. V.K. Singh is that accused Vinay

Sharma raised the plea of  alibi  that he had attended a

musical programme arranged by SCC Unit of the Church in

his locality and he was there from 08:15 pm to

11.00/12.00 pm on 16.12.2012 and he has produced the

video clipping to prove his presence there in the

programme and the same has not been considered by this

Court.

39. The plea of alibi put forth by accused Vinay Sharma

that he was present in the musical programme organised by

the SCC Unit of the Church in the DDA Park in his

locality has been elaborately considered in paras (258)

to (269).   In para (267) of the judgment, this Court

referred to the evidence of PW­83 Shri Angad Singh,

31

Deputy Director (Horticulture), DDA who has deposed that

no permission was granted by any authority to organise

any function in the evening of 16.12.2012 in the DDA

District Park, Hauz Khas, New Delhi.  This Court has also

referred to the evidence of PW­84 Father George Manimala

of St. Thomas Church and PW­85 Brother R.P. Samuel,

Secretary, Ebenezer Assembly Church who have deposed that

their church(es) never organised any musical

programme/event in the DDA District Park, Hauz Khas in

the evening of Sunday i.e. on 16.12.2012.   While

considering the plea of alibi raised by Vinay Sharma in

paras (258) to (269) referring to the evidence of DW­5

Smt. Chamba Devi, mother of accused Vinay Sharma,  DW­7

Kishore Kumar Bhat and DW­9 Manu Sharma, this Court held

that the plea of alibi raised by accused Vinay Sharma was

not acceptable.   Petitioner/accused Vinay Sharma now

cannot reagitate the same point.

40. Plea of alibi raised by accused Vinay Sharma was also

considered in the light of the footprints lifted from the

bus (Ext.P/1).   PW­46 A.D. Shah, Senior Scientific

32

Officer (Fingerprints), CFSL, CBI examined the chance

prints lifted from the bus marked as “Q.1” and “Q.4” was

found identical with the left palmprint and right thumb

impression of accused Vinay Sharma.   After referring to

the evidence of PW­46 and the expert report (Ext. PW­

46/D), this Court held that the evidence clearly

establishes the presence of accused Vinay Sharma in the

bus.  There is no merit in the contention that the plea

of alibi was not considered by this Court.

41. Likewise, video clippings relied upon by accused

Vinay Sharma (Ext.DW­10/1) was considered in para (263)

of the judgment wherein this Court held that accused

Vinay Sharma and accused Pawan Gupta were not in the DDA

District Park at 08:16 pm on 16.12.2012.

42. Now, coming to the submission regarding juvenility of

petitioner, Vinay Sharma. The issue of juvenile was

considered by the trial court and trial court on the

basis of  the materials on record  held that petitioner

No.1 was not a juvenile. Learned counsel for the

respondent has referred to the order of the trial court

33

dated 10.01.2013 which fully supports his submission. The

trial court on being fully satisfied that petitioner is

not a juvenile has rightly rejected the application for

ossification test submitted by petitioner No.1. There is

no substance in this submission and no ground is made out

to review the judgment.

43. Now, coming to the submission of the learned counsel

for petitioner No.2 that he was juvenile at the time of

occurrence. The said issue was  also considered  by the

trial court and rejected. The trial court on the basis of

the material placed before it had rightly concluded that

petitioner No.2 was not a juvenile. Learned counsel for

the respondent has rightly referred to the proceedings of

trial court dated 10.09.2013. In this respect this

submission also does not furnish any ground for review of

the judgment.

44. Before  closing we need to reiterate that criminal

appeals filed by the appellants (petitioners herein)

against the judgment of the High Court were heard by this

Court giving them sufficient time for raising all

possible submissions. The hearing in criminal appeals

34

continued about 38 days. The learned counsel for the

appellants/petitioners had made elaborate submissions

which were all duly considered by us in our main

judgment. In these review petitions no ground has been

made out which may furnish any ground to review the

judgment. We, thus, find no merit in these review

petitions and consequently, the review petitions are

dismissed.

........................CJI. ( DIPAK MISRA )

..........................J.      ( R. BANUMATHI )

..........................J.      ( ASHOK BHUSHAN )

NEW DELHI, JULY 09, 2018.