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REPORTABLE

IN SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

REVIEW PETITION (CRL.) NO. 570 OF 2017

IN  

CRIMINAL APPEAL NO. 607 OF 2017

MUKESH  ....PETITIONER

VERSUS

STATE OF NCT OF DELHI ....RESPONDENT

J U D G M E N T

ASHOK BHUSHAN J.

The  petitioner  by  this  review  petition  filed

under Article 137 of the Constitution of India prays

to review the final judgment dated 05.05.2017 passed

by this Court by which Criminal Appeal No. 607 of

2017 has been dismissed.  The horrific incident which

took  place  on  16.12.2012  in  Delhi  wherein  a  young

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lady of twenty three years (Nirbhaya, a changed name)

was gang raped and brutally injured who subsequently

died, in which the petitioner was one of the accused.

The  petitioner  was  convicted  and  awarded  death

sentence by Additional Sessions Judge (Special Fast

Track  Court)  Saket  Court  Complex  New  Delhi.  Delhi

High  Court  confirmed  the  death  reference  and

dismissed the criminal appeal filed by the petitioner

challenging his conviction and sentence.  

2. Aggrieved against the judgment of the Delhi High

Court dated 13.03.2014, Criminal Appeal No. 607 of

2017  was  filed  by  the  petitioner  which  appeal  was

dismissed  by  this  Court  on  05.05.2017.   Now,  this

application  is  filed  to  review  the  judgment  dated

05.05.2017  dismissing  the  Criminal  Appeal  of  the

petitioner.  

3. Before we enter into the submissions raised in

this review petition, it is useful to recapitulate

the  scope  and  grounds  available  for  exercise  of

jurisdiction by this Court under Article 137. Order

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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.”

4. In  various  decisions,  this  Court  has  already

settled the law with regards to the maintainability

of  review  petition  under  Article  137  of  the

Constitution of India read with Order XL Rule 1 of

Supreme Court Rules, 1966 in criminal appeals. Before

we consider the points raised by the accused, we may

usefully refer to some of the decisions.

5. The  power  of  review  of  the  Supreme  Court  as

envisaged under Article 137 of the Constitution is no

doubt  wider  than  review  jurisdiction  conferred  by

other statutes on the Court. Article 137 empowers the

Supreme Court to review any judgment pronounced or

made, subject, of course, to the provisions of any

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law made by Parliament or any rule made under Article

145 of the Constitution.  

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

lightly entertained and this Court could exercise its

review jurisdiction only when grounds are made out 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.”

7. 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

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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 vis-a-vis  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.

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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 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.”  

8. In  Devender Pal Singh v. State, NCT of Delhi,

(2003) 2 SCC 501, it was held that review is not

rehearing of the appeal all over again. The review is

not  an  appeal  in  disguise.  In  Suthendraraja  alias

Suthenthira Raja alias Santhan and Others vs. State

through Superintendent of Police, CBI, (1999) 9 SCC

323, it was held as under:-

“5.  It  would  be  seen  that  the  scope  of review  in  criminal  proceedings  has  been considerably  widened  by  the  pronouncement in  the  aforesaid  judgment.  In  any  case review is not rehearing of the appeal all over  again  and  to  maintain  a  review petition it has to be shown that there has been a miscarriage of justice. Of course,

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the expression “miscarriage of justice” is all-embracing…”  

9. The  scope  of  review  jurisdiction  has  been

considered by this Court in a number of cases and the

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 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

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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. 504-505, paras 11- 12)

“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 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

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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 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.

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(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.”

10. This  Very  Bench  speaking  through  one  of  us

(Justice Ashok Bhushan) had occasion to consider the

ambit and scope of the review petition 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

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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.”

11. Applying  the  parameters  of  the  review

jurisdiction  as  noticed  above,  we  now  proceed  to

examine the grounds given in the review petition to

find  out  as  to  whether  there  are  any  grounds  for

exercising the review jurisdiction by this court to

review the judgment dated 05.05.2017.

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12. We  have  heard  Shri  M.L.Sharma  learned  counsel

appearing for the petitioner and Shri Sidharth Luthra

learned senior counsel appearing for the respondent.

13. In support of the review petition, Shri Sharma

has raised various submissions which according to Mr.

Sharma  furnish  grounds  to  review  the  judgment  to

protect  the  fundamental  rights  of  the  petitioner

guaranteed under Articles 21, 20(3), 22(1) and 22(2)

of  the  Constitution  of  India.  We  now  proceed  to

examine the submissions in seriatim.  

14. Shri Sharma submits that police arrested Mukesh

from Karoli, the State of Rajasthan on 17.12.2012 in

the morning and he was shown to be arrested in the

evening  of  18.12.2012  at  Safdarjung  Hospital  in

Delhi. He submits that Mukesh was not produced before

the concerned Magistrate within twenty four hours of

his  arrest  at  Karoli  which  is  violative  of  rights

guaranteed under Articles 22(1) and 22(2).

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15.  Shri Sharma has further contended that police

has coerced the petitioner to give his vakalatnama in

favour  of  one  V.K.  Anand  advocate,  who  was  police

sponsored advocate.  He submits that the petitioner

has  given  his  vakalatnama  in  favour  of  Shri  M.L.

Sharma advocate in January 2013 and April 2013 but

police imposed Advocate V.K. Anand as his advocate

and compelled to give his confession statement under

Section 313 Cr.P.C.

16.  Shri M.L. Sharma further submitted that accused

Mukesh was tortured by police with regard to which he

also  filed  an  affidavit  in  March  2013  before  the

trial court and this affidavit was not considered by

this  Court.  It  is  submitted  that  statement  under

Section  313  Cr.  P.C.  of  the  petitioner  was  got

recorded under torture of police.

17. One of the submissions of Shri Sharma was that

accused Mukesh did not know driving of a bus and had

driving licence which was only for LMV(Motorcycle).

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18.  It is further submitted by Shri Sharma that this

Court has not considered the remand application filed

by the IO Exh. PW.80/D2, which clearly proves that no

disclosure existed till 22.12.2012.

19.  One of the submissions which has been raised by

Shri Sharma is that this Court had not adverted to

the call details as per which accused Mukesh could

not have been in the bus on 16.12.2012, since at that

time a call was received by him from Ram Singh at

8.55 p.m.   

20. Shri  Sharma  has  attacked  the  second  dying

declaration recorded by the SDM, Usha Chaturvedi and

submitted  that  in  the  police  diary  there  is  no

mention  of  dying  declaration  recorded  by  the  SDM,

Usha Chaturvedi.

21. Shri Sharma has again attacked the evidence of

PW.1 and tried to point out certain contradictions

and errors.

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22. Learned counsel submitted that as application for

additional  evidences  under  Section  391  Cr.P.C.

remained pending before the Appellate Court and no

orders were passed therein.

23.   Shri  Sidharth  Luthra,  learned  senior  counsel

replying  the  aforesaid  submissions  contends  that

police on information received from one Ram Singh has

reached to Karoli district, Rajasthan and reached at

the house of Mukesh at 10.45 a.m. and apprehended the

petitioner who was brought to Delhi and first taken

to Vasant Vihar Police Station and after coming to

know that IO was at Safdarjung Hospital, accused was

taken  to  the  said  hospital  where  he  was  formally

arrested at 6.30 p.m. on 18.12.2012.

24. Shri  Luthra,  learned  senior  counsel  for  the

respondent has taken us to the proceedings of trial

court and the orders passed by trial court in support

of his submission that it was on the statement of

Mukesh accused before the Court where he expressed a

desire to discharge Shri M.L. Sharma the Court passed

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an order on 24.01.2013 discharging Shri Sharma on the

request  of  accused  and  thereafter  V.K.  Anand  was

permitted to be engaged by the petitioner.  

25.  Opposing  the  submission  regarding  coercion  and

torture, Shri Sidharth Luthara submitted that Mukesh

was in judicial custody and from judicial custody he

used to go to Court to attend the trial. On several

occasions, the Court interacted with the accused and

in none of the occasion, accused at any point of time

complained  of  any  torture  by  police  or  jail

authorities. Shri Luthra further submitted that Court

had directed for medical checkups of Mukesh and also

sought a report of Mukesh. The torture by police was

never alleged or proved by the accused.   

26. Learned Counsel for the respondent submits that

the issue regarding not having driving licence for

Bus was not raised during the trial or during the

cross-examination  of  the  witnesses,  hence,  at  this

stage, it cannot be allowed to be raised.  

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27. Shri  Sidharth  Luthra  replying  the  submission

regarding  remand  application  dated  22.12.2012

submitted  that  after  the  arrest  of  accused  on

18.12.2012,  the  accused  was  produced  before  the

Magistrate on 19.12.2012 and after TIP was conducted

on 20.12.2012 he was remanded in the police custody

for  three  days  on  22.12.2012,  hence  the  remand

application was given on 22.12.2012.

28.   Shri  Luthra  replying  the  submission  based  on

call  details  of  Mukesh  it  is  submitted  that  this

Court  in  its  judgment  dated  05.05.2017  has

elaborately  considered  all  the  evidences  and  held

that Mukesh was in the bus, which was boarded by the

prosecutrix and PW.1 at about 9.00 p.m. and it was

proved  that  Mukesh  was  driving  the  bus.  We  have

considered the submissions of both the parties and

have perused the records.

29. Coming to the submission of arrest at Karoli, the

High Court has dealt this submission in paras 288 to

294.  The  High  Court  has  noticed  in  para  290  that

petitioner in his statement under Section 313 Cr.P.C.

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in an answer of question No.132  claimed that he was

not apprehended at his village Karoli, Rajasthan but

was apprehended at Ravidass Camp in Delhi. High Court

noticing  the  judgment  of  the  Privy  Council  in  the

Prabhu v. Emperor, AIR 1944 PC 73 had observed that

conviction shall not be affected by any irregularity

in his arrest. Police have shown a formal arrest on

18.12.2012  and  this  Court  vide  its  judgment  dated

05.05.2017 has also noticed the fact that accused was

formally  arrested  at  Safdarjung  Hospital  on

18.12.2012 at 6.30 p.m. at Safdarjung Hospital, in

the evening. This submission does not make out any

ground  to  hold  that  conviction  and  trial  of  the

accused is vitiated in any manner so as to call for

review of the judgment dated 05.05.2017. There is no

apparent error in the Judgment dated 05.05.2017.  

30.  Coming to the submission that Shri V.K. Anand,

Advocate was forced on petitioner it is sufficient to

note the order sheet of trial court which noticed all

facts. In proceeding dated 24.01.2013 the Trial Court

has recorded:

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“... Lastly, I have called accused Mukesh from JC, in my chamber and asked him about his counsel. He replied that earlier he had appointed Shri Manohar Lal Sharma, Advocate vide  vakalatnamas  dated  08.01.2013  and 09.01.2013 but now would like to change his counsel  and  has  appointed  Mr.  V.K.Anand, Advocate, as his counsel before this court from  today.  Vakalatnama  is  filed.  Shri Manohar  Lal  Sharma,  Advocate,  is  thus discharged. Accused Mukesh even informed that he do

not intend to avail the services of Shri N. Rajaraman,  Advocate-on-record,  in  the Transfer  Petition  pending  before  the Hon’ble Supreme Court of India and that he had requested Shri V.K.Anand, Advocate, to be his counsel, even in the Hon’ble Supreme Court  of  India  and  to  engage  some  other Advocate-on-Record.

Again when the accused made his request to avail

the services of M.L. Sharma, said fact was recorded

on  20.03.2013  proceeding  and  Shri  Sharma  started

representing  accused  Mukesh.  Subsequent  order-sheet

also  indicates  that  Shri  Sharma  did  not  appear  on

several  occasions,  more  than  half  a  dozen  of  the

dates,  which  were  fixed  for  cross-examination  on

behalf of the accused then the Court was left with no

option but to appoint a amicus curiae. The submission

of Shri Sharma that Advocate V.K. Anand was forced on

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the accused against his will is wholly untenable and

does not furnish any ground to review the judgment.

31.  With regard to submission regarding torture by

police, it is sufficient to note that the trial court

interacted with the accused on many occasions and on

none  of  the  occasions  any  complaint  was  made  by

accused.  The  accused  was  in  judicial  custody.  The

trial  court  in  its  proceeding  dated  24.01.2013

recorded following:

“....I  have  also  enquired  from  accused Mukesh if he has any complaint with regard to the manner in which he has been treated in custody but he replied that he has no complaint in this regard.”

The submission of Shri Sharma that statement of

accused recorded under Section 313 Cr.P.C. was under

pressure and influence of amicus curiae has no legs

to stand. The above argument is stated to be rejected

since the statement was recorded by the Court and the

accused was coming from judicial custody and could

not  be  tortured  by  the  police  as  alleged.  On  the

affidavit filed in March 2013, the trial court had

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promptly  called  for  a  report  and  matter  was  not

further pursued by the trial court since no material

came to substantiate the plea.  

32.  This Court in its judgment dated 05.05.2017 has

held  after  marshalling  evidence  of  PW.1  and  other

evidences including scientific evidences that Mukesh

was driving the bus.  The issue whether he had a

driving licence for driving the bus or not has no

relevance with regard to conviction recorded against

the accused which has been affirmed by the High court

and this Court as well.   

33.   This  Court  in  its  judgment  has  referred  to

recoveries made from the petitioner in para No. 127.

Remand  application  was  given  by  police  after

conclusion of T.I.P. Recoveries made from petitioner

has been discussed and believed, we cannot permit the

petitioner to argue the said issues again.  

34. Learned counsel for accused No.2-Mukesh contended

that  accused  No.2-Mukesh  does  not  know  driving  as

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evidenced from his driving licence which shows that

the licence was only for Light Motor Vehicle (LMV)

and that he does not know how to drive a bus. Further

contention of accused No.2-Mukesh is that as per the

Call  Details  Record  (CDR),  he  could  not  have  been

present in the bus on 16.12.2012 at 08.55 p.m.  

35. The argument that accused No.2-Mukesh does not

know driving has not been raised during the trial or

in evidence and also cross-examination of witnesses

by the accused. Upon consideration of the evidence of

PW-1  and  other  evidences  including  scientific

evidence, this Court has arrived at the conclusion

that accused no.2-Mukesh was driving the bus.  Issue

whether accused No.2-Mukesh has a driving licence for

driving the bus or not has no relevance with regard

to conviction recorded against the accused which has

been affirmed by the High Court and this Court as

well.

36. There is no merit in the contention that accused

No.2-Mukesh could not have driven the bus and that he

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was  not  present  in  the  bus  at  the  time  of  the

incident. It is to be noted that in the questioning

under Section 313 Crl.P.C., accused No.2-Mukesh has

clearly admitted that he was driving the bus and this

has been elaborately referred to in para (302) of the

Judgment as under:-

"302. In his questioning under Section 313 Cr.PC,  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 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 Cr.PC reads as under:  “Q.2.  It  is  in  evidence  against  you that  PW  1  further  deposed  that  they inquired from 4-5 autorickshaw-walas to take  them  to  Dwarka,  but  they  all refused. At about 9 p.m. they reached at Munirka  Bus-stand  and  found  a  white- coloured  bus  on  which  “Yadav”  was written. A boy in the bus was calling for commuters for Dwarka/Palam Mod. PW 1 noticed  yellow  and  green  lines/stripes 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”.

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Q.4.: 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; PW 1 further identified your  co-accused  Ram  Singh  (since deceased), and Akshay Kumar to be the person who were sitting in the driver’s cabin along with 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 PW 1 entered the bus; PW 1 has also deposed before the court that the conductor who was calling him and his friend/prosecutrix to board the bus, Ext.  P-1  was  not  among  the  accused person being tried in this court.

Ans.:  Accused  Pawan  and  accused  Vinay Sharma were sitting on my backside 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.

Q.5.: It is in evidence against you that after entering the bus PW 1 noticed that seats  cover  of  the  bus  were  of  red colour  and  it  had  yellow-coloured curtains and the windows of the bus had black film on it. The windows were at quite a height as in luxury buses. As PW 1 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. PW 1 paid an amount of Rs 20 as bus fare to the conductor i.e. Rs 10 per head. What do you have to say?

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Ans.: It is correct that the windows of the bus, Ext. P-1 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  along  with  Ram  Singh  had already taken the bus from R.K. Puram. I was called by Ram Singh on phone to come at Munirka.”

37. The  contention  raised  by  Mr.  Sharma  is  that

accused No.2-Mukesh was not present in the bus has

been considered in the judgment of this Court in more

than one place. Presence of accused No.2-Mukesh in

the bus has also been considered while considering

the presence of witness PW-82, Shri Ram Adhar in the

bus  in  para  (298).  As  pointed  out  above,  in  his

questioning under Section 313 Crl.P.C., accused No.2-

Mukesh  has  admitted  that  he  and  accused  No.1-Ram

Singh (since deceased) are brothers and on the night

of 16.12.2012, he (accused No.2-Mukesh) was driving

the  bus  and  that  accused-Pawan  and  accused-Vinay

Sharma were seated on the back side of the driver

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seat  whereas  accused-Akshay  was  sitting  in  the

Driver's cabin. Accused-Ram Singh and JCL, Raju were

calling for passengers by saying "Palam/Dwarka Mod".

When there is such clear admission in the questioning

under Section 313 Cr.P.C, now the Petitioner-accused

No.2-Mukesh  cannot  raise  the  plea  denying  his

presence in the bus.

38. Another contention raised by accused No.2-Mukesh

is that he could not have been present in the bus on

16.12.2012 at 08.55 p.m. as seen from Call Details

Record (CDR) and that his phone number was giving the

location  of  Lajpat  Nagar.  This  issue  has  been

elaborately argued and dealt with as overlapping of

signals in close proximity is common.  

39.  This Court had elaborately considered all the

three  dying  declarations.  All  the  three  dying

declarations having been relied by trial court, High

Court and this Court and all arguments attacking the

dying  declarations  having  been  considered  and

rejected, in its judgment dated 05.05.2017, we are of

the view that the petitioner cannot be allowed to re-

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agitate the same issues which were already considered

and expressly rejected by this Court.  

40. 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 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

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moving bus in naked condition.  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.    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”.  

41. 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-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  PW-30  Pawan  Kumar,

Metropolitan  Magistrate  and  the  third  dying

29

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.

42.  This Court has examined the evidence of PW.1

extensively and have given ample reason for accepting

the said evidence as reliable. The petitioner cannot

be allowed to re-agitate the matter.   

43. Yet another contention raised by Mr. Sharma is

that there were two different recoveries from accused

No.2-Mukesh  during  his  detention  only  to  falsely

implicate  him  and  this  has  not  been  considered  by

this  Court.  It  is  the  further  contention  that  the

remand report filed by the I.O. (Ext. PW-80/D2) was

not  considered  which  implied  that  there  was  no

30

disclosure  existed  till  22.12.2012  and  the

disclosures and recoveries shown are highly doubtful.

The arrest and recovery of accused No.2-Mukesh have

been referred to in paras (116), (117) and in the

tabular  column  in  para  (128)  and  the  details  of

arrest  of  all  the  accused  and  recovery  of  the

articles recovered from each of them are also further

referred to in detail in para (441). In the light of

various  decisions,  the  scope  of  recoveries  was

considered in paras (129) to (137) and paras (442) to

(452) and the arguments raised on behalf of accused

No.2-Mukesh were held to be untenable. The arguments

now  advanced  raising  doubts  about  the  arrest  and

recovery of articles, in our considered view, make no

ground for reviewing the judgment.

44. Learned Counsel for accused No.2-Mukesh contended

that  the  illegal  detention  of  Mukesh  in

Karoli/Rajasthan on 17.12.2012 and failure to present

him before the nearest Magistrate was not considered

by this Court. As pointed out earlier, the details of

arrest of accused No.2-Mukesh have been referred to

in  detail  in  para  (116)  of  the  judgment  and  the

31

various recoveries are referred to in paras (116),

(117),  (127),  (440)  and  (441)  of  the  judgment.

Identification  of  Samsung  Galaxy  phone  (recovered

from accused Mukesh) by PW-1 in the TIP proceedings

held on 20.12.2012 corroborates recovery of articles

from accused No.2-Mukesh (vide para (441)). Further,

the DNA profile generated from blood strained pants,

T-shirts  and  jackets  recovered  from  accused  No.2-

Mukesh matching with the DNA profile of the victim

corroborates the recoveries made from accused No.2-

Mukesh vide paras (231) and (454).

45.  When the appeal was decided, all applications if

any pending shall stand closed and we do not find any

ground  to  review  the  judgment  on  this  count,

especially when parties lead all the evidences which

were in their power.  

46. We may observe that submissions which have been

raised  by  Shri  Sharma  before  us  in  this  review

petition are more or less the submissions which were

32

advanced at the time of hearing of the appeal and

this  Court  had  already  considered  the  relevant

submissions  and  dealt  them  in  its  judgment  dated

05.05.2017. This court had cautiously gone into and

revisited the entire evidences on record and after

being fully satisfied had dismissed the appeal.  By

the review petition the petitioner cannot be allowed

to  re-argue  the  appeal  on  merits  of  the  case  by

pointing  out  certain  evidences  and  materials  which

were on the record and were already looked into by

the trial court, High court and this Court as well.  

47. In review petition, the petitioner had tried to

raise the plea that he was not in the bus and he has

nothing to do with the incident.  The factum of he

being involved in the offence having been gone into

by all courts and after marshalling the evidences, he

having been convicted and sentenced, it is not open

for the petitioner in the review petition to contend

that he had nothing to do with the incident.

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48. We  after  having  heard  learned  counsel  for  the

petitioner  and  learned  senior  counsel  for  the

respondent and having gone through the grounds taken

in  the  review  petition,  find  that  review  petition

does  not  disclose  any  ground,  on  which  review

jurisdiction  can  be  exercised  by  this  Court  under

Article  137  read  with  Order  XLVII  Rule  1  of  the

Supreme court Rules, 2013. Consequently, the review

petition is rejected.  

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

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

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

NEW DELHI, JULY 09, 2018.