IN THE SUPREME COURT OF INDIA

Mukesh & Anr. …Appellants

Versus
State for NCT of Delhi & Ors. …Respondents
JUDGMENT

Dipak Misra, J. [for himself and Ashok

………………………………..Bhushan, J.]

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 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.
Delayed registration of FIR
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 called upon to explain every hour’s delay and a common
sense view has to be taken in ascertaining whether the first information
report was lodged after an undue delay 1(1974) 4 SCC 201 = AIR 1974 SC 606 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 tocase. 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 Kumar 2, 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, 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
2 (2009) 6 SCC 308 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
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
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 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,3(1997) 4 SCC 161 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 others 7, 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
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 4 (1975) 4 SCC 1535 (1978) 4 SCC
302 6 1980 Supp SCC 567 7 (2011) 4 SCC 324 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.”
59. While dealing with a similar issue in Animireddy Venkata Ramana v.
Public Prosecutor10, the Court held as under:
8 (2006) 12 SCC 649 (2011) 4 SCC 336 10 (2008) 5 SCC 368
“13. … While considering the effect of someomissions 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
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.

Appreciation of the evidence of PW-1

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.
State of Haryana41 of 40 (2012) 11 SCC 196 41 (2000) 4 SCC 484 and Akhtar and
others v. State Uttaranchal 42 on the law of material omissions and
contradictions. Concurringly, the High Court too observed that the defence
had failed to demonstrate from th 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 is shaken as to
render it unworthy of belief. Minor discrepancies on trivial matters not
touching the core of the case, hyper-technical 42 (2009) 13 SCC 72243 (1985) 1 SCC 505
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 chaff. But, it cannot
obviously disbelieve the substratum of the prosecution case or the 44 (2002) 6
SCC 470 45 AIR 1965 SC 277 material parts of the evidence and reconstruct a story
of its own out of the rest.”
86. In Krishna Mochi v. State of Bihar 46, 46 (2002) 6 SCC 81 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”.
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 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 47 1988 (Supp.) SCC 686 48 (1999) 2 SCC 428 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.”
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
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
128. we shall refer to certain authorities on how a statement of disclosure is
to be
appreciated. In Pulukuri Kottaya v. Emperor50 AIR 1947 PC 67, 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 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 others 51, the Court,
analyzing the concept, use and evidentiary value of recovered articles,
expressed thus:
“7. ... Section 27 of the Evidence Act permitsproof 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
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 phrasrefers 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
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

(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 Guru 57, 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
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:
“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 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 tothis 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.”
(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 thecorner of Pulipad tank. We, all beat Beddupati China Sivayya and
Subayya, todeath. 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 thefollowing words: “Except in cases in which
the possession, or concealment, of an object constitutes the 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 65259 (2012) 11 SCC 205of 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 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.
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 another 63, 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
“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
145. In the case at hand, the informant, apart from identifying the accused
who had made themselves availablein 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. 66 (2010) 6 SCC 1 67 (2005) 9 SCC 631 68 (1975) 4 scc 480

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.
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 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.
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 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 Gujarat 71 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 171 (1992) 2 SCC 47 472 (2008) 17 SCC 190
“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.
(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 Pradesh 73, 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 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 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 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
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) 7878 (2015) 4 SCC
749
, 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 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.
185. The contention that the third dying declaration made through gestures
lacks and that the same ought to have been videographed, in our view, is
totally sans substance. The dying declaration recorded on the basis of 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 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 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.
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
170
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
171
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
172
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)
173
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
174
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
175
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:-
176
(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.”
177
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
178
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
179
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
180
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
181
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
182
(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
183
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
184
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
185
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
186
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.
187
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.
188
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
189
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
190
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:
191
“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
192
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
193
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
194
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
195
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
196
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.
197
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
198
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
199
‘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
200
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
201
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
202
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 wellbeing
of accused Pawan. Ram Charan, DW-3, however,
deposed that about 8:30/9:00 p.m., he was sitting inside
203
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
204
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
205
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
206
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
207
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,
208
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
209
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
210
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
211
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
212
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
213
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.
214
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.
215
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,
imprisonment for life or rigorous imprisonment
for a term of two years or upwards, shall, where
216
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.
271. By insertion of Chapter V-A in IPC, the
understanding of criminal conspiracy in the Indian context
217
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.”
218
272. The English law on ‘conspiracy’ has been
succinctly explained by Russell on Crimes (12 th 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
pursue it by these common means the design
being unlawful?”
102 (1837) 173 ER 508
219
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 if 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 Maharashtra 104, this Court has
observed:
103 (1901) AC 495
104 AIR 1971 SC 885
220
“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
221
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
222
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.
Reference to Sections 120-A and 120-B IPC would
107
(1988) 3 SCC 609
223
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
agreed in terms’ to pursue the unlawful object;
224
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.
Besides the fact of agreement the necessary mens
108 (2001) 1 SCC 378
225
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
226
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
227
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
228
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
229
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
230
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
231
“Some of the broad principles governing the law
of conspiracy may be summarized though, as the
name implies, a summary cannot be exhaustive
of the principles.
“1. Under Section 120A IPC offence of criminal
conspiracy is committed when two or more
persons agree to do or cause to be done an illegal
act or legal act by illegal means. When it is legal
act by illegal means overt act is necessary.
Offence of criminal conspiracy is exception to the
general law where intent alone does not
constitute crime. It is intention to commit crime
and joining hands with persons having the same
intention. Not only the intention but there has to
be agreement to carry out the object of the
intention, which is an offence. The question for
consideration in a case is did all the accused had
the intention and did they agree that the crime be
committed. It would not be enough for the offence
of conspiracy when some of the accused merely
entertained a wish, howsoever, horrendous it may
be, that offence be committed.
2. Acts subsequent to the achieving of object of
conspiracy may tend to prove that a particular
accused was party to the conspiracy. Once the
object of conspiracy has been achieved, any
subsequent act, which may be unlawful, would
not make the accused a part of the conspiracy
like giving shelter to an absconder.
3. Conspiracy is hatched in private or in secrecy.
It is rarely possible to establish a conspiracy by
direct evidence. Usually, both the existence of the
conspiracy and its objects have to be inferred
from the circumstances and the conduct of the
accused.
4. Conspirators may, for example, be enrolled in a
chain - A enrolling B, B enrolling C, and so on;
232
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.
233
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
234
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.”
235
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
236
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
237
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
238
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.
239
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
240
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
241
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
242
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
243
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
244
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
245
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
246
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,
247
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,
248
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:
249
“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
250
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
251
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
252
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
253
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
254
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.
255
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
256
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
257
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.”
258
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
259
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.”
260
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
261
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
262
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
263
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.”
264
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
265
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
266
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
267
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
268
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,
269
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.”
270
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,
271
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
272
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
273
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
274
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
275
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
276
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
277
(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
278
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
279
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
280
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
281
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 Gujarat 139,
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
282
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
283
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
284
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
285
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
286
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
287
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)
288
“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.”
289
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.”
290
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
291
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:
292
“(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
293
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
294
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
295
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
296
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
297
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
298
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
299
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
300
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
301
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
302
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
303
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
304
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
305
“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.
306
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
307
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
308
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:
309
“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
310
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
311
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
312
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
313
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.
314
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.
315
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
316
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
JUDGMENT
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.
317
2. Honesty, pride, and self-esteem are crucial to the personal freedom
of a woman. Social progress depends on the progress of everyone.
Following words of the father of our nation must be noted at all times:
“To call woman the weaker sex is a libel; it is man’s injustice to woman. If
by strength is meant moral power, then woman is immeasurably man’s
superior. Has she not greater intuition, is she not more self-sacrificing, has
she not greater powers of endurance, has she not greater courage?
Without her, man could not be. If non-violence is the law of our being, the
future is with woman. Who can make a more effective appeal to the heart
than woman?”
3. Crimes against women – an area of concern: Over the past few
decades, legal advancements and policy reforms have done much to
protect women from all sources of violence and also to sensitize the public
on the issue of protection of women and gender justice. Still, the crimes
against women are on the increase. As per the annual report of National
Crime Records Bureau titled, ‘Crime in India 2015’ available at
http://ncrb.nic.in/StatePublications/CII/CII2015/FILES /Compendium
-
15.11.16.pdf, a total of 3,27,394 cases of crime against women were
reported in the year 2015, which shows an increase of over 43% in crime
against women since 2011, when 2,28,650 cases were reported. A
percentage change of 110.5% in the cases of crime against women has
been witnessed over the past decade (2005 to 2015), meaning thereby that
crime against women has more than doubled in a decade. An overall crime
318
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
319
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
320
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
321
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,
322
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.
3. Recovery of the bus in which incident took place and
recovery of the concerned iron rod therefrom, completing the
323
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:-
“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
324
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
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.
325
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
corroborated by medical evidence and other circumstantial evidence such
326
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:-
327
“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]”
328
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.”
329
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.”
330
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
331
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
332
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.
333
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
334
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
335
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
336
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
337
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
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)”
338
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
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
339
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,
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.
340
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
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
341
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,
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.
342
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
minor variations does not affect the evidentiary value of other dying
343
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.
40. Dying Declaration by gestures and nods: Adverting to the
contention that the third dying declaration made through gestures lacks
344
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
interpret the gestures or nods of the declarant. While recording the third
345
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
the present case, the prosecutrix has made a truthful statement and the
346
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
wellcorroborated
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
rectal tear of about 4 to 5 cm was also noticed communicating with the
347
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
performing second surgery on 19th December, 2012, surgery team also
348
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.
349
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
350
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.
351
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
352
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
353
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
354
the victim on the rear side of the bus. Thereafter, other accused held
PW-1, while Vinay and Pawan committed rape on the victim. Later
accused Mukesh who was earlier driving the bus, committed rape on the
victim. After the incident, PW-1 and the prosecutrix were thrown out of the
moving bus, near Mahipalpur flyover. In the incident, PW-1 himself
sustained injuries which lends assurance to his credibility.
55. That PW-1 accompanied the victim to Select City Mall and that he
was with the victim till the end, is proved by ample evidence. As per the
case of the prosecution, on the fateful day, the complainant and the
prosecutrix had gone to Saket Mall to see a movie. CCTV footage
produced by PW-25 Rajender Singh Bisht in two CDs (Ex.PW-25/C-1 and
PW-25/C-2) and seven photographs (Ex.PW-25/B-1 to Ex.PW-25/B-7)
corroborate the version of PW-1 that the complainant and the victim were
present at Saket Mall till 8:57 p.m. The certificate under Section 65-B of the
Indian Evidence Act, 1872 with respect to the said footage is proved by
PW-26 Shri Sandeep Singh (Ex.PW-26/A) who is the CCTV operator at
Select City Mall.
56. The computer generated electronic record in evidence, admissible at
a trial is proved in the manner specified in Section 65-B of the Evidence
Act. Sub-section (1) of Section 65 of the Evidence Act makes electronic
355
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
356
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
357
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
358
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
359
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
360
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
361
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.
362
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.
363
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
364
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
365
registration No.DL-1PC-0149. DNA profile developed from the
blood-stained curtains of the bus and blood-stained seat covers of bus and
the bunch of hair recovered from the floor of the bus below sixth row
matched with the DNA profile of the victim. The evidence of DNA analysis
is an unimpeachable evidence as to the involvement of the offending bus in
the commission of offence and also strong unimpeachable evidence
connecting the accused with the crime.
70. The accused neither rebutted this evidence nor offered any
convincing explanation except making feeble attempt by stating that
everything was concocted. PW-46, A.D. Shah, Senior Scientific Officer
(Finger Prints), CFSL, CBI examined the chance prints lifted from the bus.
Chance print marked as ‘Q.1’ lifted from the bus (Ex.P-1) was found
identical with the left palm print of accused Vinay Sharma. Further chance
print marked as ‘Q.4’ was found identical with right thumb impression of
accused Vinay Sharma. A finger print expert report (Ex.PW-46/D) states
that the chance print lifted from the bus being identical with the finger print
of accused Vinay Sharma, establishes the presence of accused Vinay
Sharma in the bus, thereby strengthening prosecution case.
71. Arrest and Recovery under Section 27 of the Indian Evidence
Act: Prosecution very much relies upon disclosure statements of the
366
accused, pursuant to which articles of the victim and also of PW-1 were
recovered. Accused being in possession of the articles of the victim and
that of PW-1, is a militating circumstance against the accused and it is for
the accused to explain as to how they came in possession of these articles.
Details of arrest of accused and articles recovered from the accused are as
under:-
ACCUSED RAM SINGH (A-1) (Dead)
ARREST (WHEN+
WHERE+
BY WHOM)
ARTICLES RECOVERED FROM ACCUSED
Details of articles
recovered from
the person of the
accused
Details of articles recovered
pursuant to disclosure statement
Items identified
as that of PW-1
Awninder Pratap
Singh/Prosecutrix
(1) (2) (3) (4)
On 17.12.2012,
PW-80 Pratibha
Sharma alongwith
PW-74 Subhash
Chand SI and
PW-65 Ct. Kirpal
Singh arrested A-1
at 4:15 PM (Arrest
Memo: Ex.PW-74/D)
from Ravi Das
Camp, R.K. Puram,
Delhi.
(1) One Unix
Mobile Phone with
MTNL Sim
[Ex.PW-74/5];
(2) Photocopy of
Election Card and
Pan Card;
(3) Rs. 207/- in
cash [personal
search Memo
Ex.PW-74/E]
(1) Bus (Ex.P-1) DL-1PC-0149
(2) Keys of Bus, (Ex.P-74/2)
(3)Driving License, Fitness Certificate,
Permit Pollution Certificate and other
documents of bus bearing registration
no. DL-1PC-0149 (Ex.P-74/4)
(4) Two blood-stained rods (Ex.P49/1
and Ex.49/2)
(5) Indian Bank Debit Card(Ex.P74/3)
(6) Blood-stained green and black
coloured T-Shirt (Ex.74/6) and
blood-stained brown coloured chappal
(Ex.74/7).
(7) Some ashes and partly burnt
clothes (seizure memo Ex. PW-74/M.)
Debit Card,
marked as Ex.
PW-74/3 belongs
to the prosecutrix
as deposed by
PW-75- Asha
Devi, mother of
prosecutrix.
ACCUSED MUKESH (A-2)
ARREST (WHEN+
WHERE+BY WHOM)
ARTICLES RECOVERED FROM ACCUSED
Details of articles
recovered from the
person of the accused
Details of articles recovered
pursuant to disclosure
statement
Items identified
as that of PW-1
Awninder Pratap
Singh/Prosecutrix
(1) (2) (3) (4)
A-2 was traced at Karoli (1) Rs. 226/- in cash Disclosure statement recorded In the TIP
367
District, Rajasthan by
PW-58 SI Arvind Kumar
alongwith staff ASI
Anand Prakash, HC
Randhawa, HC Mukesh,
HC Sachin and Ct.
Umesh, pursuant to
A-1’s disclosure. He
was formally arrested
on 18.12.2012 at 6.30
p.m. by PW80 SI.
(Arrest Memo
Ex.PW-58/B)
(2) Key
(3) one black and brown
colour purse containing
PAN Card, Visiting
cards and voter card
and
(4)Nokia Mobile phone
bearing IMEI
No.351863010659247
(5) Samsung Galaxy
Duos Mobile with IMEI
No.354098053454886
and
No.354099053454884
(Ex. P/6)
on 18.12.2012 by PW-60 HC
Mahabir (Ex.PW-60/I)
Following items recovered:
1. one blood-stained green
T-shirt
2. one blood-stained grey colour
pants.
3. blood-stained bluish grey
colour jacket.
proceedings held
on 20.12.2012,
PW-1 identified
the Samsung
Galaxy Duos
(recovered from
accused
Mukesh) as
belonging to him.
ACCUSED AKSHAY (A-3)
ARREST (WHEN+
WHERE+BY WHOM)
ARTICLES RECOVERED FROM ACCUSED
Details of articles
recovered from the
person of the accused
Details of articles
recovered pursuant to
disclosure statement
Items identified as that
of PW-1 Awninder
Pratap
Singh/Prosecutrix
(1) (2) (3) (4)
On 21.12.2012 at 9:15
p.m., pursuant to the
disclosure of A-1,
PW-53 SI Upender
alongwith team
comprising Insp. Ritu
Raj, PW-61 SI Jeet
Singh and ASI Ashok
Kumar arrested him
from his house at
Karmalahang. (Arrest
Memo: Ex.PW53/A)
No personal articles
recovered from the
accused at his
residence, Karmalahang
(1) One black bag
containing blood-stained
blue jeans
(2) Blue black Nokia
mobile phone with IMEI
No.359286040159081
(3) Blood-stained red
coloured banian.
(4) One silver ring
(5) Two metro cards
In the TIP proceedings
held on 26.12.2012,
PW-1 identified the
Silver ring (recovered
from accused Akshay)
as belonging to PW-1
Complainant.
ACCUSED VINAY (A-4)
ARREST (WHEN+
WHERE+ BY WHOM)
ARTICLES RECOVERED FROM ACCUSED
Details of articles
recovered from the
person of the accused
Details of articles
recovered pursuant to
disclosure statement
Items identified as that
of PW-1 Awninder
Pratap
Singh/Prosecutrix
(1) (2) (3) (4)
On 18.12.2012 at 1:30
p.m., on disclosure of
A-1, PW-80 SI Pratibha
Sharma alongwith
PW-60 HC Mahabir and
Manphool arrested him
(1) One black coloured
Nokia mobile phone
bearing IMEI
no.35413805830821
418 (Ex.PW-60/D)
1. Blood-stained blue
coloured jeans
(Ex.P-68/1)
2. Blood-stained black
coloured jacket
(Ex.P-68/2)
PW-1 identified hush
puppy shoes
(recovered from
accused Vinay) as
belonging to him.
Nokia mobile phone
368
from Ravi Das Camp,
R.K. Puram, Delhi in the
presence of A-1. (Arrest
Memo: Ex.PW-60/B).
Supplementary
disclosure recorded on
19.12.2012 by PW-68 SI
Mandeep (Ex.PW-68/A)
3. Blood-stained full
sleeved black coloured
T-shirt (Ex.P-68/3)
4. Blue coloured
chappals (Ex.P-68/4)
5. Hush puppy shoes
(Ex.P2 under
Ex.PW-68/C)
6. Black coloured Nokia
mobile phone with
IMEI
No.353183039047391
(Ex.P-68/5) – seizure
Memo Ex.PW-68/D
bearing IMEI
No.353183039047391
was identified as the
mobile phone of the
prosecutrix.
ACCUSED PAWAN GUPTA @ KALU (A-5)
ARREST (WHEN+
WHERE+ BY WHOM)
ARTICLES RECOVERED FROM ACCUSED
Details of articles
recovered from the
person of the accused
Details of articles
recovered pursuant to
disclosure statement
Items identified as that
of PW-1 Awnindra
Pratap Singh/
Prosecutrix
(1) (2) (3) (4)
On 18.12.2012, on
disclosure of A-1,
PW-80 S.I. Pratibha
Sharma alongwith
PW-60 HC Mahabir and
Manphool went to Ravi
Das Camp at 1:15 p.m.
to arrest him.
(Arrest
Memo:Ex.PW-60/A)
(1) One black purse
containing some visiting
cards
(2) Rs.8,200 in cash
(3)One silver coloured
ring with green nug
(Personal Search Memo:
Ex.PW-60/C).
(1)one blood-stained
black coloured sweater
(Ex. P-68/6)
(2)blood-stained coca
cola (colour) pants.
(Ex.68/7)
(3)Blood-stained brown
coloured underwear
(Ex.P-68/8)
(4)Brown coloured sports.
shoes
(Ex.P-68/9)
(5)One wristwatch of
Sonata make
(Ex.P-3)
(6)Two currency notes of
Rs.500/- each (Ex.P-7)
In the TIP proceedings
conducted on
25.12.2012, Sonata
wrist watch identified
by PW-1 (recovered
from accused Pawan)
as belonging to him.
72. As noted in the above tabular form, various articles of the
complainant and the victim were recovered from the accused viz.,
Samsung Galaxy Phone (recovered at the behest of A-2 Mukesh); silver
ring (recovered at the behest of A-3 Akshay); Hush Puppies shoes
369
(recovered at the behest of A-4 Vinay) and Sonata Wrist Watch (recovered
at the behest of A-5 Pawan). Recovery of belongings of PW-1 and that of
the victim, at the instance of the accused is a relevant fact duly proved by
the prosecution. Notably the articles recovered from the accused thereto
have been duly identified by the complainant in test identification
proceedings. Recovery of articles of complainant (PW-1) and that of the
victim at the behest of accused is a strong incriminating circumstance
implicating the accused. As rightly pointed out by the Courts below, the
accused have not offered any cogent or plausible explanation as to how
they came in possession of those articles.
73. Similarly, the Indian bank debit card (Ex.PW-74/3) recovered at the
behest of A-1 Ram Singh and black coloured Nokia mobile phone
(Ex.PW-68/5) recovered at the behest of A-4 Vinay have been proved to be
used by the prosecutrix. PW-75 Asha Devi mother of the victim in her
testimony stated that the Debit card belonged to her PW-75 Asha Devi and
that the same was in the possession of her daughter. Nokia mobile phone
(Ex.PW-68/5) is stated to be the mobile used by the victim. Notably, the
articles of the prosecutrix recovered from the accused were proved by the
evidence of PW-75 Asha Devi (mother of the victim) and the same was not
controverted by the defence.
370
74. Section 25 of the Indian Evidence Act (for short ‘the Evidence Act’)
speaks of a confession made to a police officer, which shall not be proved
as against a person accused of an offence. Section 26 of the Evidence Act
also speaks that no confession made by the person whilst he is in the
custody of a police officer, unless it be made in the immediate presence of
a Magistrate, shall be proved as against such person. Sections 25 and 26
of the Evidence Act put a complete bar on the admissibility of a
confessional statement made to a police officer or a confession made in
absentia of a Magistrate, while in custody. Section 27 of the Evidence Act
is by way of a proviso to Sections 25 and 26 of the Evidence Act and a
statement even by way of confession made in police custody which
distinctly relates to the fact discovered is admissible in evidence against
the
accused. Section 27 of the Evidence Act reads as under:-
“27. How much of information received from accused may be
proved.- Provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused of any
offence, in the custody of a police officer, so much of such information,
whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.”
Section 27 is based on the view that if a fact is actually discovered in
consequence of information given, some guarantee is afforded thereby that
the information is true and is a relevant fact and accordingly it can be
safely
allowed to be given in evidence.
371
75. Section 27 has prescribed two limitations for determining how much
of the information received from the accused can be proved against him:
(i) The information must be such as the accused has caused discovery of
the fact, i.e. the fact must be the consequence, and the information the
cause of its discovery; (ii) The information must ‘relate distinctly’ to the fact
discovered. Both the conditions must be satisfied. Various requirements of
Section 27 of the Evidence Act are succinctly summed up in Anter Singh
v. State of Rajasthan (2004) 10 SCC 657:-
“16. The various requirements of the section can be summed up 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.
(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.”
76. Appending a note of caution to prevent the misuse of the provision of
Section 27 of the Evidence Act, this Court in Geejaganda Somaiah v.
372
State of Karnataka (2007) 9 SCC 315, observed that the courts need to
be
vigilant about application of Section 27 of the Evidence Act. Relevant
extract from the judgment is as under:-
“22. As the section is alleged to be frequently misused by the police, the
courts are required to be vigilant about its application. The court must
ensure the credibility of evidence by police because this provision is
vulnerable to abuse. It does not, however, mean that any statement made
in terms of the aforesaid section should be seen with suspicion and it
cannot be discarded only on the ground that it was made to a police officer
during investigation. The court has to be cautious that no effort is made by
the prosecution to make out a statement of the accused with a simple
case of recovery as a case of discovery of fact in order to attract the
provisions of Section 27 of the Evidence Act.”
77. Even though, the arrest and recovery under Section 27 of the
Evidence Act is often sought to be misused, the courts cannot be expected
to completely ignore how crucial are the recoveries made under Section 27
in an investigation. The legislature while incorporating Section 27, as an
exception to Sections 24, 25 and 26 of the Evidence Act, was convinced of
the quintessential purpose Section 27 would serve in an investigation
process. The recovery made under Section 27 of the Evidence Act not only
acts as the foundation stone for proceeding with an investigation, but also
completes the chain of circumstances. Once the recovery is proved by the
prosecution, burden of proof on the defence to rebut the same is very
strict,
which cannot be discharged merely by pointing at procedural irregularities
in making the recoveries, especially when the recovery is corroborated by
373
direct as well as circumstantial evidence, especially when the investigating
officer assures that failure in examining independent witness while making
the recoveries was not a deliberate or mala fide, rather it was on account of
exceptional circumstances attending the investigation process.
78. While the prosecution has been able to prove the recoveries made at
the behest of the accused, the defence counsel repeatedly argued in favour
of discarding the recoveries made, on the ground that no independent
witnesses were examined while effecting such recoveries and preparing
seizure memos.
79. The above contention of the defence counsel urges one to look into
the specifics of Section 27 of the Evidence Act. As a matter of fact, need of
examining independent witnesses, while making recoveries pursuant to the
disclosure statement of the accused is a rule of caution evolved by the
Judiciary, which aims at protecting the right of the accused by ensuring
transparency and credibility in the investigation of a criminal case. In the
present case, PW-80 SI Pratibha Sharma has deposed in her
cross-examination that no independent person had agreed to become a
witness and in the light of such a statement, there is no reason for the
courts to doubt the version of the police and the recoveries made.
374
80. When recovery is made pursuant to the statement of accused,
seizure memo prepared by the Investigating Officer need not mandatorily
be attested by independent witnesses. In State Govt. of NCT of Delhi v.
Sunil and Another (2001) 1 SCC 652, it was held that non-attestation of
seizure memo by independent witnesses cannot be a ground to disbelieve
recovery of articles’ list consequent upon the statement of the accused. It
was further held that there was no requirement, either under Section 27 of
the Evidence Act or under Section 161 Cr.P.C. to obtain signature of
independent witnesses. If the version of the police is not shown to be
unreliable, there is no reason to doubt the version of the police regarding
arrest and contents of the seizure memos.
81. In the landmark case of Pulukuri Kottaya v. King-Emperor
AIR 1947 PC 67, the Privy Council has laid down the relevance of
information received from the accused for the purpose of Section 27 of the
Evidence Act. Relevant extracts from the judgment are as under:
“10. Section 27, which is not artistically worded, provides an exception to
the prohibition imposed by the preceding section, and enables certain
statements made by a person in police custody to be proved. The
condition necessary to bring the section into operation is that the
discovery of a fact in consequence of information received from a person
accused of any offence in the custody of a Police officer must be deposed
to, and thereupon so much of the information as relates distinctly to the
fact thereby discovered may be proved. The section seems to be based
on the view that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the information
was true, and accordingly can be safely allowed to be given in evidence;
375
but clearly the extent of the information admissible must depend on the
exact nature of the fact discovered to which such information is required to
relate.”
The test laid down in Pulukuri Kottaya’s case was reiterated in several
subsequent judgments of this Court including State (NCT of Delhi) v.
Navjot Sandhu alias Afsan Guru (2005) 11 SCC 600.
82. In the light of above discussion, it is held that recoveries made
pursuant to disclosure statement of the accused are duly proved by the
prosecution and there is no substantial reason to discard the same.
Recovery of articles of PW-1 and also that of victim at the instance of the
accused is a strong incriminating evidence against accused, especially
when no plausible explanation is forthcoming from the accused. Further,
as discussed infra, the scientific examination of the articles recovered
completely place them in line with the chain of events described by the
prosecution.
83. DNA Analysis: 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 analysis. For the purpose
of DNA profiling, various samples were taken from the person of the
prosecutrix; the complainant; the accused, their clothes/articles; the
dumping spot; the iron rods; the ashes of burnt clothes; as well as from the
376
offending bus. PW-45 Dr. B.K. Mohapatra analysed the said DNA profiles
and submitted his report thereof. In his report, he concluded that the
samples were authentic and capable of establishing the identities of the
persons concerned beyond reasonable doubt. Prosecution relies upon the
biological examination of various articles including the samples collected
from the accused and the DNA profiles generated from the blood-stained
clothes of the accused. The DNA profile generated from the samples
collected, when compared with the DNA profile generated from the blood
samples of the victim and PW-1 Awninder Pratab Singh, were found
consistent.
84. For easy reference and for completion of narration of events, I
choose to refer to the articles recovered from the accused pursuant to their
disclosure statements and other articles like blood-stained clothes; samples
of personal fluids like blood, saliva with control swab; other samples like
nail clippings, penil swab, stray hair etc. Details of the DNA analysis is
contained in the reports of biological examination and DNA profiling
(Ex.PW-45/A to Ex.PW-45/C), furnished by PW-45 Dr. B.K. Mohapatra.
ACCUSED RAM SINGH (A-1) (Dead)
ARTICLES
RECOVERED FROM
ACCUSED
Findings of DNA generated
from clothes
DNA profile generated
from other articles, swab
etc.
Recovery pursuant to
disclosure statement
Samples
collected from
Items
matching
Items matching
DNA profile of
Findings (Ex.Pw45/B)
377
the person of
the accused
DNA
profile of
PW1
Victim.
(1) (2) (3) (4) (5)
(1) Bus (Ex.P-1)
DL-1PC-0149
(2) Keys of Bus,
(Ex.P-74/2)
(3)Driving License,
Fitness Certificate, Permit
Pollution Certificate and
other documents of bus
bearing registration no.
DL-1PC-0149 (Ex.P-74/4)
(4) Two blood-stained
rods (Ex.P49/1 and
Ex.49/2)
(5) Indian Bank Debit
Card(Ex.P74/3)
(6) Blood-stained green
and black coloured
T-Shirt (Ex.74/6) and
blood-stained brown
coloured chappal
(Ex.74/7).
(7) Some ashes and
partly burnt clothes
(seizure memo Ex.
PW-74/M.)
(1)Penile
swab
(2) Saliva
(3)Nail
clippings
(4)Control
swab
(5)Blood in
gauze
(6)
Underwear
-NA- (1) DNA profile
generated from
Partially torn
green and black
colored striped
half sleeve t-shirt
found to be female
in origin and
consistent with the
DNA profile of
victim (1q) [8.7.3
@ Ex. PW 45/B].
(2) DNA profile
generated from
brown colored
plastic chappal
found to be female
in origin and
consistent with the
DNA profile of
victim (1q) [8.7.3
@ Ex. PW 45/B]
(1) DNA profile generated
from Blood detected in
gauze of accused matched
the DNA profile generated
from rectal swab of the
victim.
(2) Blood as well as human
spermatozoa was detected
in the underwear of the
accused and the DNA
profile generated
there-from was found to be
female in origin, consistent
with that of the victim.
(3) The DNA profile
developed from blood
stains from both the iron
rods, recovered at the
instance of accused Ram
Singh from bus, is of
female origin and
consistent with the DNA
profile of prosecutrix.
(4) The DNA profile
developed from burnt
clothes pieces was found
to be of male origin and
consistent with the DNA
profile of the complainant.
ACCUSED MUKESH (A-2)
ARTICLES
RECOVERED FROM
ACCUSED
Findings of DNA generated
from clothes
DNA profile generated from
other articles, swab etc.
Recovery pursuant
to disclosure
statement
Samples
collected from
the person of
the accused
Items
matching
DNA
profile of
PW1
Items
matching
DNA profile
of Victim
FINDINGS (Ex.PW45/B)
(1) (2) (3) (4) (5)
Disclosure statement
recorded on
18.12.2012 by PW-60
HC Mahabir
(1) Blood in
gauze
(2)Nail clippings
(3) Urethral swab
-NA- The DNA
profile
generated
from
(1) Blood was detected in
gauze and nail clippings but it
did not yield female fraction
DNA for analysis.
378
(Ex.PW-60/I)
Following items
recovered:
1. one blood-stained
green T-shirt
2. one blood-stained
grey colour pants.
3. blood-stained
bluish grey colour
jacket.
(4)Glans swab
(5)Cut of pubic
hair
(6) Saliva
(7) Stray hair
(8) Underwear.
blood-staine
d pants,
t-shirts and
jackets
recovered at
the behest
of accused
matched the
DNA profile
of the victim.
(2)Human Spermatazoa was
detected in urethral swab,
glans swab and underwear but
the same did not yield female
fraction DNA for analysis.
ACCUSED AKSHAY (A-3)
(1) (2) (3) (4) (5)
(1) One black bag
containing
blood-stained blue
jeans
(2) Blue black Nokia
mobile phone bearing
IMEI
No.35928604015
(3) Blood-stained red
coloured banian.
(4) One silver ring
(5) Two metro cards
(1) Blood in
gauze
(2) Saliva
(3) Control gauze
(4) Penile Swab
(5)Nail clippings
(6) Underwear
(7) Scalp hair and
Pubic hair
(8) Red colour
banian
One set
of the
DNA
profile
generated
from
jeans
pant of
the
accused
matched
the DNA
profile of
PW1.
The DNA
profile
generated
from
blood-staine
d red
coloured
banian
recovered at
the behest
of accused
matched the
DNA profile
of the victim.
DNA profile generated from
breast swab of the victim was
found consistent with the DNA
profile of the blood of the
accused Akshay.
379
ACCUSED VINAY (A-4)
ARTICLES RECOVERED
FROM ACCUSED
Findings of DNA generated
from clothes
DNA generated
from other articles,
swab etc.
Recovery pursuant to
disclosure statement
Samples
collected from
the person of
the accused
Items
matching
DNA
profile of
PW1
Items
matching
DNA profile of
Victim.
FINDINGS
(Ex.PW45/B)
(1) (2) (3) (4) (5)
1.Blood-stained blue coloured
jeans (Ex.P-68/1)
2.Blood-stained black coloured
jacket (Ex.P-68/2)
3.blood-stained full sleeved
black coloured T-shirt
(Ex.P-68/3)
4.blue coloured chappals
(Ex.P-68/4)
5. Hush Puppy shoes(Ex.P2
under Ex. PW-68/C)
6. Black coloured Nokia mobile
phone with IMEI
No.353183039047391
(Ex.P-68/5)
(1) Blood in
gauze
(2)Nail clippings
(3) Urethral swab
(4)Glans swab
(5)Cut of pubic
hair
(6) Saliva
(7) Stray hair
(8) Underwear
(9)Mons Pubis
One set
of the
DNA
profile
generated
from
sports
jacket of
the
accused
matched
the DNA
profile of
PW1.
The DNA
profile
generated
from
blood-stained
underwear,
chappal and
jacket
recovered at
the behest of
accused
matched the
DNA profile of
the victim.
(1) Blood was
detected only in
gauze, nail clipping
and pubic hair of the
accused but the
same did not yield
female fraction DNA
for analysis.
ACCUSED PAWAN GUPTA @ KALU (A-5)
(1) (2) (3) (4) (5)
Disclosure statement recorded
by PW-60 HC Mahabir.
Following items recovered on
19.12.2012:
(1)one blood-stained black
coloured sweater
(Ex. P-68/6)
(2)blood-stained coca cola
(colour) pants. (Ex.68/7)
(3)Blood-stained brown
coloured underwear
(Ex.P-68/8)
(4)Brown coloured sports
shoes
(Ex.P-68/9)
(5)One wristwatch of Sonata
make
(Ex.P-3)
(6)Two currency notes of
Rs.500/- each (Ex.P-7)
Site plan of the spot from
where the said articles are
recovered and seized
(1) Blood in
gauze
(2)Nail clippings
(3)Urethral swab
(4)Glans swab
(5) Cut of pubic
hair
(6) Saliva
(7) Stray hair
One set of
the DNA
profile
generated
from black
coloured
sweater of
the
accused
matched
the DNA
profile of
PW-1.
(1) Another set
of DNA profile
generated from
sweater
recovered at
the behest of
the accused
matched the
DNA profile of
the victim.
(2) DNA profile
generated from
sports shoes of
the accused
matched with
the DNA profile
of the
prosecutrix
(1) Blood was
detected only in
gauze and nail
clipping of the
accused but the
same did not yield
female fraction DNA
for analysis.
380
(Ex. PW-68).
85. Before considering the above findings of DNA analysis contained in
tabular form, let me first refer to what is DNA, the infallibility of
identification
by DNA profiling and its accuracy with certainty. DNA –
De-oxy-ribonucleic acid, which is found in the chromosomes of the cells
of living beings, is the blueprint of an individual. DNA is the genetic blue
print for life and is virtually contained in every cell. No two persons, except
identical twins have ever had identical DNA. DNA profiling is an extremely
accurate way to compare a suspect’s DNA with crime scene specimens,
victim’s DNA on the blood-stained clothes of the accused or other articles
recovered, DNA testing can make a virtually positive identification when
the
two samples match. A DNA finger print is identical for every part of the
body, whether it is the blood, saliva, brain, kidney or foot on any part of the
body. It cannot be changed; it will be identical no matter what is done to a
body. Even relatively minute quantities of blood, saliva or semen at a crime
scene or on clothes can yield sufficient material for analysis. The Experts
opine that the identification is almost hundred per cent precise. Using this
i.e. chemical structure of genetic information by generating DNA profile of
the individual, identification of an individual is done like in the traditional
method of identifying finger prints of offenders. Finger prints are only on
the fingers and at times may be altered. Burning or cutting a finger can
381
change the make of the finger print. But DNA cannot be changed for an
individual no matter whatever happens to a body.
86. We may usefully refer to Advanced Law Lexicon, 3rd Edition
Reprint 2009 by P. Ramanatha Aiyar which explains DNA as under:-
“DNA.- De-oxy-ribonucleic acid, the nucleoprotein of chromosomes.
The double-helix structure in cell nuclei that carries the genetic
information of most living organisms.
The material in a cell that makes up the genes and controls the cell.
(Biological Term)
DNA finger printing. A method of identification especially for evidentiary
purposes by analyzing and comparing the DNA from tissue samples.
(Merriam Webster)”
In the same Law Lexicon, learned author refers to DNA identification as
under:
DNA identification. A method of comparing a person’s deoxyribonucleic
acid (DNA) – a patterned chemical structure of genetic information – with
the DNA in a biological specimen (such as blood, tissue, or hair) to
determine if the person is the source of the specimen. – Also termed DNA
finger printing; genetic finger printing (Black, 7th Edition, 1999)
87. DNA evidence is now a predominant forensic technique for identifying
criminals when biological tissues are left at the scene of crime or for
identifying the source of blood found on any articles or clothes etc.
recovered from the accused or from witnesses. DNA testing on samples
such as saliva, skin, blood, hair or semen not only helps to convict the
accused but also serves to exonerate. The sophisticated technology of
DNA finger printing makes it possible to obtain conclusive results.
382
Section 53A Cr.P.C. is added by the Code of Criminal Procedure
(Amendment) Act, 2005. It provides for a detailed medical examination of
accused for an offence of rape or attempt to commit rape by the registered
medical practitioners employed in a hospital run by the Government or by a
local authority or in the absence of such a practitioner within the radius of
16 kms. from the place where the offence has been committed by any
other
registered medical practitioner.
88. Observing that DNA is scientifically accurate and exact science and
that the trial court was not justified in rejecting DNA report, in Santosh
Kumar Singh v. State through CBI (2010) 9 SCC 747, the Court held as
under:-
“65. We now come to the circumstance with regard to the comparison of
the semen stains with the blood taken from the appellant. The trial court
had found against the prosecution on this aspect. In this connection, we
must emphasise that the court cannot substitute its own opinion for that of
an expert, more particularly in a science such as DNA profiling which is a
recent development.
66. Dr. Lalji Singh in his examination-in-chief deposed that he had been
involved with the DNA technology ever since the year 1974 and he had
returned to India from the UK in 1987 and joined CCMB, Hyderabad and
had developed indigenous methods and techniques for DNA finger printing
which were now being used in this country. We also see that the expertise
and experience of Dr. Lalji Singh in his field has been recognised by this
Court in Kamalanantha v. State of T.N. (2005) 5 SCC 194 We further
notice that CW 1 Dr. G.V. Rao was a scientist of equal repute and he had
in fact conducted the tests under the supervision of Dr. Lalji Singh. It was
not even disputed before us during the course of arguments that these two
scientists were persons of eminence and that the laboratory in question
was also held in the highest esteem in India.
383
67. The statements of Dr. Lalji Singh and Dr. G.V. Rao reveal that the
samples had been tested as per the procedure developed by the
laboratory, that the samples were sufficient for the purposes of comparison
and that there was no possibility of the samples having been
contaminated or tampered with. The two scientists gave very
comprehensive statements supported by documents that DNA of the
semen stains on the swabs and slides and the underwear of the deceased
and the blood samples of the appellant was from a single source and that
source was the appellant.
68. It is significant that not a single question was put to PW Dr. Lalji Singh
as to the accuracy of the methodology or the procedure followed for the
DNA profiling. The trial court has referred to a large number of textbooks
and has given adverse findings on the accuracy of the tests carried out in
the present case. We are unable to accept these conclusions as the court
has substituted its own opinion ignoring the complexity of the issue on a
highly technical subject, more particularly as the questions raised by the
court had not been put to the expert witnesses. In Bhagwan Das v. State
of Rajasthan AIR 1957 SC 589 it has been held that it would be a
dangerous doctrine to lay down that the report of an expert witness could
be brushed aside by making reference to some text on that subject without
such text being put to the expert.
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 an exact science as held by this Court in Kamti
Dev i v. Poshi Ram (2001) 5 SCC 311 . 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.” [emphasis
added].
89. From the evidence of PW-45 and the details given in the above
tabular form, it is seen that the DNA profile generated from blood-stained
clothes of the accused namely, A-1 Ram Singh (dead); A-2 Mukesh; A-3
Akshay; A-4 Vinay; and A-5 Pawan Gupta @ Kalu are found consistent with
the DNA profile of the prosecutrix. Also as noted above, two sets of DNA
384
profile were generated from the black colour sweater of the accused
Pawan. One set of DNA profile found to be female in origin, consistent with
the DNA profile of the prosecutrix; other set found to be male in origin,
consistent with the DNA profile of PW-1. Likewise, two sets of DNA profile
were generated from the black colour sports jacket of accused Vinay, one
of which matched the DNA profile of the prosecutrix and another one
matched the DNA profile of PW-1. Likewise, two sets of DNA profile were
generated from the jeans pant of accused Akshay, one of which matched
the DNA profile of the prosecutrix and another one matched the DNA profile
of PW-1. The result of DNA analysis and that of the DNA profile generated
from blood-stained clothes of the accused found consistent with that of the
victim is a strong piece of evidence incriminating the accused in the
offence.
90. DNA profile generated from the blood samples of accused Ram Singh
matched with the DNA profile generated from the rectal swab of the victim.
Blood as well as human spermatozoa was detected in the underwear of the
accused Ram Singh (dead) and DNA profile generated therefrom was
found to be female in origin, consistent with that of the victim. Likewise,
the
DNA profile generated from the breast swab of the victim was found
consistent with the DNA profile of the accused Akshay.
385
91. As discussed earlier, identification by DNA genetic finger print is
almost hundred per cent precise and accurate. The DNA profile generated
from the blood-stained clothes of the accused and other articles are found
consistent with the DNA profile of the victim and DNA profile of PW-1; this
is a strong piece of evidence against the accused. In his evidence, PW-45
Dr. B.K. Mohapatra has stated that once DNA profile is generated and
found consistent with another DNA profile, the accuracy is hundred per cent
and we find no reason to doubt his evidence. As pointed out by the Courts
below, the counsel for the defence did not raise any substantive ground to
rebut the findings of DNA analysis and the findings through the
examination
of PW-45. The DNA report and the findings thereon, being scientifically
accurate clearly establish the link involving the accused persons in the
incident.
92. Conspiracy: The accused have been charged with the offence of
“conspiracy” to commit the offence of abduction, robbery/dacoity, gang
rape
and unnatural sex, in pursuance of which the accused are alleged to have
picked up the prosecutrix and PW-1. The charge sheet also states that in
furtherance of conspiracy, the accused while committing the offence of
gang rape on the prosecutrix intentionally inflicted bodily injury with iron
rod
386
and inserted the iron rod in the vital parts of her body with the common
intention to cause her death.
93. The learned amicus Mr. Sanjay Hegde submitted that there is no
specific evidence to prove that there was prior meeting of minds of the
accused and that they had conspired together to commit grave offence by
use of iron rod, resulting in the death of the victim and, therefore,
insertion/use of iron rod by any one of the accused cannot be attributed to
all the accused in order to hold them guilty of the offence of murder.
94. The essentials of the offence of conspiracy and the manner in which
it can be proved has been laid down by this Court through a catena of
judicial pronouncements and I choose to briefly recapitulate the law on the
point, so as to determine whether the offence is made out in this case or
not. Meeting of minds for committing an illegal act is sine qua non of the
offence of conspiracy. It is also obvious that meeting of minds, thereby
resulting in formation of a consensus between the parties, can be a sudden
act, spanning in a fraction of a minute. It is neither necessary that each of
the conspirators take active part in the commission of each and every
conspiratorial act, nor it is necessary that all the conspirators must know
each and every details of the conspiracy. Essence of the offence of
387
conspiracy is in agreement to break the law as aptly observed by this Court
in Major E.G. Barsay v. State of Bombay (1962) 2 SCR 195.
95. So far as the English law on conspiracy is concerned, which is the
source of Indian law, KENNY has succinctly stated that in modern times
conspiracy is defined as an agreement of two or more persons to effect any
unlawful purpose, whether as their ultimate aim or only as a means to it.
Stressing on the need of formation of an agreement, he has cautioned that
conspiracy should not be misunderstood as a purely mental crime,
comprising the concurrence of the intentions of the parties. The meaning of
an ‘agreement’, he has explained by quoting following words of Lord
Chelmsford:
“Agreement is an act in advancement of the intention which each person has
conceived in his mind.”
KENNY has further said that it is not mere intention, but the announcement
and acceptance of intentions. However, it is not necessary that an overt act
is done; the offence is complete as soon as the parties have agreed as to
their unlawful purpose, although nothing has yet been settled as to the
means and devices to be employed for effecting it. [Refer KENNY on
Outlines of Criminal Law, 19th Edn., pp. 426-427]
388
96. The most important aspect of the offence of conspiracy is that apart
from being a distinct statutory offence, all the parties to the conspiracy are
liable for the acts of each other and as an exception to the general law in
the case of conspiracy intent i.e. mens rea alone constitutes a crime. As
per Section 10 of the Evidence Act, once reasonable ground is shown for
believing that two or more persons have conspired to commit an offence
then, anything done by any one of them in reference to their common
intention, is admissible against the others. As held in State of
Maharashtra v. Damu and Others (2000) 6 SCC 269, the only condition
for the application of the rule in Section 10 of the Evidence Act is that there
must be reasonable ground to believe that two or more persons have
conspired together to commit an offence.
97. The principles relating to the offence of criminal conspiracy and the
standard of proof for establishing offence of conspiracy and the joint
liability
of the conspirators have been elaborately laid down in Shivnarayan
Laxminarayan Joshi and Ors. v. State of Maharashtra (1980) 2
SCC 465; Mohammad Usman Mohammad Hussain Maniyar and Ors.
v.
State of Maharashtra (1981) 2 SCC 443; Kehar Singh and Ors. v.
State
(Delhi Administration) (1988) 3 SCC 609; State of Maharashtra and
Ors. v. Som Nath Thapa and Ors. (1996) 4 SCC 659; State (NCT of
389
Delhi) v. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600; State
Through Superintendent of Police, CBI/SIT v. Nalini and Ors. (1999)
5
SCC 253 Yakub Abdul Razak Menon v. The State of Maharashtra,
through CBI, Bombay (2013) 13 SCC 1.
98. Another significant aspect of the offence of criminal conspiracy is that
it is very rare to find direct proof of it, because of the very fact that it is
hatched in secrecy. Unlike other offences, criminal conspiracy in most of
the cases is proved by circumstantial evidence only. It is extremely rare
that
direct evidence in proof of conspiracy can be forthcoming from wholly
disinterested, quarters or from utter strangers. Conspiracy is a matter of
inference, deduced from words uttered, criminal acts of the accused done
in furtherance of conspiracy. (Vide Noor Mohammad Mohd. Yusuf
Momin
v. State of Maharashtra (1970) 1 SCC 696; Firozuddin Basheeruddin
and Ors. v. State of Kerala (2001) 7 SCC 596; Ram Narain Poply v.
Central Bureau of Investigation and Ors. (2003) 3 SCC 641; Yogesh
@
Sachin Jagdish Joshi v. State of Maharashtra (2008) 10 SCC 394;
Pratapbhai Hamirbhai Solanki v. State of Gujarat and Anr. (2013) 1
SCC 613; Chandra Prakash v. State of Rajasthan (2014) 8 SCC 340
etc.)
390
99. In Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra
(2008) 10 SCC 394, this Court, after referring to the law laid down in
several pronouncements, summarised the core principles of law of
conspiracy in the following words:
“23. Thus, it is manifest that the meeting of minds of two or more persons for
doing an illegal act or an act by illegal means is sine qua non of the criminal
conspiracy but it may not be possible to prove the agreement between them
by direct proof. Nevertheless, existence of the conspiracy and its objective
can be inferred from the surrounding circumstances and the conduct of the
accused. But the incriminating circumstances must form a chain of events
from which a conclusion about the guilt of the accused could be drawn. It is
well settled that an offence of conspiracy is a substantive offence and renders
the mere agreement to commit an offence punishable even if an offence does
not take place pursuant to the illegal agreement.”
100. In the present case, there is ample evidence proving the acts,
statements and circumstances, establishing firm ground to hold that the
accused who were present in the bus were in prior concert to commit the
offence of rape. The prosecution has 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. Existence of conspiracy and its objects could be inferred from
the chain of events. The chain of events described by the victim in her
dying declarations coupled with the testimony of PW-1 clearly establish that
as soon as the complainant and the victim boarded the bus, the accused
switched off the lights of the bus. Few accused pinned down PW-1 and
391
others committed rape on the victim in the back side of the bus one after
the other. The accused inserted iron rods in the private parts of the
prosecutrix, dragging her holding her hair and then threw her outside the
bus. The victim has also maintained in her dying declaration that the
accused persons were exhorting that the victim has died and she be thrown
out of the bus. Ultimately, both the victim and the complainant were
thrown
out of the moving bus through the front door, having failed to throw them
through the rear door. The chain of action and the act of finally throwing
the victim and PW-1 out of the bus show that there was unity of object
among the accused to commit rape and destroy the evidence thereon.
101. In this case, the existence of conspiracy is sought to be drawn by an
inference from the circumstances: (i) the accused did not allow any other
passenger to board the bus after PW-1 and the prosecutrix boarded the
bus; (ii) switching off the lights; pinning PW-1 down by some while others
commit rape/unnatural sex with the prosecutrix at the rear side of the bus;
(iii) exhortation by some of the accused that the victim be not left alive;
and
(iv) their act of throwing the victim and PW-1 out of the running bus without
clothes in the wintery night of December. Existence of conspiracy and its
objects is inferred from the above circumstances and the words uttered. In
my view, the courts below have rightly drawn an inference that there was
392
prior meeting of minds among the accused and they have rightly held that
the prosecution has proved the existence of conspiracy to commit gang
rape and other offences.
102. As already stated in the beginning, in achieving the goal of the
conspiracy, several offences committed by some of the conspirators may
not be known to others, still all the accused will be held guilty of the
offence
of criminal conspiracy. The trial court has recorded that the victim’s
complete alimentary canal from the level of duodenum upto 5 cm from
anal
sphincter was completely damaged. It was beyond repair. Causing of
damage to jejunum is indicative of the fact that the rods were inserted
through vagina and/or anus upto the level of jejunum.” Further “the
septicemia was the direct result of internal multiple injuries”. Use of iron
rod
by one or more of the accused is sufficient to inculpate all the accused for
the same. In the present case, gang rape and use of iron rod caused grave
injuries to victim’s vagina and intestines; throwing her out of the bus in that
vegetative state in chilled weather led to her death; all this taking place in
the course of same transaction and with the active involvement of all the
accused is more than sufficient evidence to find the accused guilty of
criminal conspiracy. I, thus, affirm the findings of the courts below with
393
regard to conviction of all the accused under Section 120-B IPC and
Section 302 read with Section 120-B IPC.
103. Apart from considering the principles of law of conspiracy distinctly, if
we consider it in the context of ‘conspiracy to commit the offence of gang
rape, unnatural sex etc., as is specifically relevant in the present case, we
find that existence of common intent and joint liability is already implicit in
the offence of gang rape. Gang rape is dealt with in clause (g) of
sub-section (2) of Section 376 IPC read with Explanation 1. As per
Explanation 1 to Section 376 IPC, “where a woman is raped by one or
more in a group of persons acting in furtherance of their common intention,
each of the persons shall be deemed to have committed gang rape” and all
of them shall be liable to be punished under sub-section (2) of
Section 376 IPC. As per Explanation 1, by operation of deeming provision,
a person who has not actually committed rape is deemed to have
committed rape even if only one of the groups has committed rape in
furtherance of the common intention.
104. While considering the scope of Section 376(2)(g) IPC read with
Explanation, in Ashok Kumar v. State of Haryana (2003) 2 SCC 143, this
Court held as under:-
394
“8. Charge against the appellant is under Section 376(2)(g) IPC. 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 had been
committed by even one, all the accused will be guilty irrespective of the fact
that she had been raped by one or more of them and it is not necessary for
the prosecution to adduce evidence of a completed act of rape by each one
of the accused. In other words, this provision embodies a principle of joint
liability and the essence of that liability is the existence of common intention;
that common intention presupposes prior concert which may be determined
from the conduct of offenders revealed during the course of action and it
could arise and be formed suddenly, but, there must be meeting of minds. It
is not enough to have the same intention independently of each of the
offenders. In such cases, there must be criminal sharing marking out a certain
measure of jointness in the commission of offence. [Emphasis added]”
So far as the offence under Section 376 (2)(g) IPC, the sharing of common
intention and the jointness in commission of rape is concerned, the same is
established by the presence of all the accused in the bus; their action in
concert as established by the dying declaration of the prosecutrix and the
evidence of PW-1, presence of blood in the clothes of all the accused, DNA
profile generated thereon being consistent with the DNA profile of the
victim.
105. The prosecution has established the presence of the accused in the
bus and the heinous act of gang rape committed on the prosecutrix by the
accused by the ample evidence – by the multiple dying declaration of the
victim and also by the evidence of PW-1 and medical evidence and also by
arrest and recovery of incriminating articles of the victim and that of PW-1
395
complainant. The scientific evidence in particular DNA analysis report
clearly brings home the guilt of the accused.
106. Section 235(2), Criminal Procedure Code: Once the conviction of
the accused persons is affirmed, what remains to be decided is the
question of appropriate punishment imposed on them. On the aspect of
sentencing, we were very effectively assisted by the learned Amicus
Curiae. Accused were convicted vide judgment and order dated
10.09.2013 and on the very next day of judgment i.e. on 11.09.2013,
the
arguments on sentencing were concluded. Thereafter, a separate
order on sentence was pronounced on 13.09.2013.
107. Counsel for the appellants as well as the learned amicus Mr. Raju
Ramachandran contended that no effective opportunity was given to the
appellants to lead their defence on the point of sentencing as mandated
under Section 235(2) Cr.P.C. and each of the accused were not individually
heard in person on the question of sentence. Learned Amicus Curiae,
Mr. Raju Ramachandran submitted only the counsel for the accused were
heard and all the accused were treated alike irrespective of their individual
background and were sentenced to death, which is in clear violation of the
mandate of Section 235(2) Cr.P.C. It was submitted that Section 235(2)
396
Cr.P.C. is intended to give an opportunity to the accused to place before
the
Court all the relevant facts and material having a bearing on the question
of
sentence and, therefore, salutary provision should not have been treated
as a mere formality by the trial court. In support of his contention, the
learned Amicus has placed reliance upon a number of judgments viz. – (i)
Dagdu & Ors. v. State of Maharashtra (1977) 3 SCC 68; (ii) Malkiat
Singh and Ors. v. State of Punjab (1991) 4 SCC 341; and (iii) Ajay
Pandit alias Jagdish Dayabhai Patel and Anr. v. State of
Maharashtra
(2012) 8 SCC 43.
108. Section 235 Cr.P.C. deals with the judgments of acquittal or
conviction. Under Section 235(2) Cr.P.C., where the accused is convicted,
save in cases of admonition or release on good conduct, the Judge shall
hear the accused on the question of sentence and then pass sentence in
accordance with law. Section 235(2) Cr.P.C. imposes duty on the court to
hear the accused on the question of sentence and then pass sentence on
him in accordance with law. The only exception to the said rule is created in
case of applicability of Section 360 Cr.P.C. i.e. when the court finds the
accused eligible to be released on probation of good conduct or after
admonition.
397
109. Section 354 Cr.P.C. specifies the language and contents of judgment,
while delivering the judgment in a criminal case. Section 354(3) Cr.P.C.
deals with judgments where conviction is for an offence punishable with
death penalty or in the alternative with imprisonment for life.
Section 354(3) Cr.P.C. mandates that when the conviction is for an
offence
punishable with death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state the reasons for
the sentence awarded, and in the case of sentence of death, the special
reasons for such sentence.
110. The statutory duty to state special reasons under Section 354(3)
Cr.P.C. can be meaningfully carried out only if the hearing on sentence
under Section 235(2) Cr.P.C. is effective and procedurally fair. To afford an
effective opportunity to the accused, the Court must hear on the question
of
sentence to know about (i) age of the accused; (ii) background of the
accused; (iii) prior criminal antecedents, if any; (iv) possibility of
reformation, if any; and (v) such other relevant factors. The major
deficiency in the complex criminal justice system is that important factors
which have a bearing on sentence are not placed before the Court.
Resultantly, the Courts are constantly faced with the dilemma to impose an
appropriate sentence. In this context, hearing of the accused under
Section 235(2) Cr.P.C. on the question of sentencing is a crucial exercise
398
which is intended to enable the accused to place before the Court all the
mitigating circumstances in his favour viz. his social and economic
backwardness, young age etc. The mandate of Section 235(2) Cr.P.C.
becomes more crucial when the accused is found guilty of an offence
punishable with death penalty or with the life imprisonment.
111. It is well-settled that Section 235(2) Cr.P.C. is intended to give an
opportunity of hearing to the prosecution as well as the accused on the
question of sentence. The Court while awarding the sentence has to take
into consideration various factors having a bearing on the question of
sentence. In case, Section 235(2) Cr.P.C. is not complied with, as held in
Dagdu’s case, the appellate Court can either send back the case to the
Sessions Court for complying with Section 235(2) Cr.P.C. so as to enable
the accused to adduce materials; or, in order to avoid delay, the appellate
Court may by itself give an opportunity to the parties in terms of
Section 235(2) Cr.P.C. to produce the materials they wish to adduce
instead of sending the matter back to the trial Court for hearing on
sentence. In the present case, we felt it appropriate to adopt the latter
course and accordingly asked the counsel appearing for the appellants to
file affidavits/materials on the question of sentence. Consequently, vide
order dated 03.02.2017, we directed the learned counsel for the accused to
399
place in writing, before this Court, their submissions, whatever they desired
to place on the question of sentence. In compliance with the order,
Mr. M.L. Sharma, learned counsel on behalf of the accused A-2 Mukesh
and A-5 Pawan and Mr. A.P. Singh, learned counsel on behalf of the
accused Akshay Kumar Singh, Vinay Sharma and Pawan Gupta filed the
individual affidavits of the accused.
112. Accused Mukesh (A-2) in his affidavit has stated that he was picked up
from his house at Karoli, Rajasthan and brought to Delhi and reiterated that
he is innocent and he denied his involvement in the occurrence. In their
affidavits, accused Akshay Kumar Singh (A-3), accused Vinay Sharma
(A-4) and accused Pawan Gupta (A-5) submitted in their individual
affidavits have stated that they hail from an ordinary/ poor background and
are not much educated. They have also stated that they have aged parents
and other family members who are dependent on them and they are to be
supported by them. Accused have also stated that they have no criminal
antecedents and that after their confinement in Tihar Jail they have
maintained good behavior.
400
113. Learned counsel Mr. M.L. Sharma submitted that accused Mukesh
(A-2) is innocent and he has been falsely implicated only because he is the
brother of accused Ram Singh.
114. Taking us through the affidavits filed by the accused, learned counsel
Mr. A.P. Singh submitted that the accused namely Akshay Kumar Singh,
Pawan Gupta and Vinay Sharma hail from very poor background; and have
got large families to support; and have no criminal antecedents. It has
been contended that having regard to the fact that the three accused have
no prior criminal antecedents and are not hardened criminals, the case will
not fall under “rarest of rare cases” to affirm the death sentence.
115. Supplementing the affidavits filed by the accused, the learned amicus
and senior counsel Mr. Raju Ramachandran and Mr. Sanjay Hegde
submitted that assuming that the conviction of the appellants are
confirmed, the accused who hail from very ordinary poor background and
having no criminal antecedents, the death sentence be commuted to life
imprisonment.
116. Question of awarding sentence is a matter of discretion and has to be
exercised on consideration of circumstances aggravating or mitigating in
the individual cases. The courts are consistently faced with the situation
where they are required to answer the new challenges and mould the
401
sentence to meet those challenges. Protection of society and deterring the
criminal is the avowed object of law. It is expected of the courts to operate
the sentencing system as to impose such sentence which reflects the
social conscience of the society. While determining sentence in heinous
crimes, Judges ought to weigh its impact on the society and impose
adequate sentence considering the collective conscience or society’s cry
for justice. While considering the imposition of appropriate punishment,
courts should not only keep in view the rights of the criminal but also the
rights of the victim and the society at large.
117. In State of M.P. v. Munna Choubey and Anr. (2005) 2 SCC 710, it
was observed as under:
“10. Therefore, undue sympathy to impose inadequate sentence would do
more harm to the justice system to undermine the public confidence in the
efficacy of law and society could not long endure under such serious
threats. It is, therefore, the duty of every court to award proper sentence
having regard to the nature of the offence and the manner in which it was
executed or committed etc. This position was illuminatingly stated by this
Court in Sevaka Perumal v. State of Tamil Naidu (1991) 3 SCC 471.”
118. In Jashubha Bharatsinh Gohil and Ors. v. State of Gujarat
(1994) 4 SCC 353, while upholding the award of death sentence, this Court
held that sentencing process has to be stern where the circumstances
demand so. Relevant extract is as under:
“12………The courts are constantly faced with the situation where they
are required to answer to new challenges and mould the sentencing
system to meet those challenges. Protection of society and deterring the
402
criminal is the avowed object of law and that is required to be achieved by
imposing appropriate sentence. The change in the legislative intendment
relating to award of capital punishment notwithstanding, the opposition by
the protagonist of abolition of capital sentence, shows that it is expected of
the courts to so operate the sentencing system as to impose such
sentence which reflects the social conscience of the society. The
sentencing process has to be stern where it should be.”
119. Whether the Case falls under rarest of rare cases: Law relating
to
award of death sentence in India has evolved through massive policy
reforms-nationally as well as internationally and through a catena of judicial
pronouncements, showcasing distinct phases of our view towards
imposition of death penalty. Undoubtedly, continuing prominence of
reformative approach in sentencing and India’s international obligations
have been majorly instrumental in facilitating a visible shift in court’s view
towards restricting imposition of death sentence. While closing the shutter
of deterrent approach of sentencing in India, the small window of ‘award of
death sentence’ was left open in the category of ‘rarest of rare case’ in
Bachan Singh v. State of Punjab (1980) 2 SCC 684, by a Constitution
Bench of this Court.
120. In Bachan Singh (supra), while upholding the constitutional validity
of capital sentence, this Court revisited the law relating to death sentence
at that point of time, by thoroughly discussing the law laid down in
Jagmohan Singh v. State of U.P. (1973) 1 SCC 20; Rajendra Prasad v.
403
State of U.P. (1979) 3 SCR 646 and other cases. The principles laid down
in Bachan Singh’s case is that, normal rule is awarding of ‘life sentence’,
imposition of death sentence being justified, only in rarest of rare case,
when the option of awarding sentence of life imprisonment is
unquestionably foreclosed’. By virtue of Bachan Singh (supra), ‘life
imprisonment’ became the rule and ‘death sentence’ an exception. The
focus was shifted from ‘crime’ to the ‘crime and criminal’ i.e. now the
nature
and gravity of the crime needs to be analysed juxtaposed to the peculiar
circumstances attending the societal existence of the criminal. The
principles laid down in Bachan Singh’s case were considered in Machhi
Singh and Ors. v. State of Punjab (1983) 3 SCC 470 and was
summarised as under:-
“38. In this background the guidelines indicated in Bachan Singh's case
(supra) will have to be culled out and applied to the facts of each individual
case where the question of imposing of death sentence arises. The
following propositions emerge from Bachan Singh's case (supra):
(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.
404
(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.”
121. In Machhi Singh’s case, this Court took the view that in every case
where death penalty is a question, a balance sheet of aggravating and
mitigating circumstances must be drawn up before arriving at the decision.
The Court held that for practical application of the doctrine of ‘rarest of rare
case’, it must be understood broadly in the background of five categories of
cases crafted thereon that is ‘Manner of commission of crime’, ‘Motive’,
‘Anti-social or socially abhorrent nature of the crime’, ‘Magnitude of crime’,
and ‘Personality of victim of murder’. These five categories are elaborated
in para nos. 32 to 37 as under:-
“32. 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 realized 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 community owes a
debt to the community for this protection. When ingratitude is shown
instead of gratitude by “killing” a member of the community which protects
the murderer himself from being killed, or when the community feels that
for the sake of self-preservation the killer has to be killed, the community
may well withdraw the protection by sanctioning the death penalty. But the
community will not do so in every case. It may do so “in rarest of rare
cases” when its collective conscience is so shocked that it will expect the
405
holders of the judicial power centre to inflict death penalty irrespective of
their personal opinion as regards desirability or otherwise of retaining
death penalty. The community may entertain such a sentiment when the
crime is viewed from the platform of the motive for, or the manner of
commission of the crime, or the anti-social or abhorrent nature of the
crime, such as for instance:
I. Manner of commission of murder
33. When the murder is committed in an extremely brutal, grotesque,
diabolical, revolting or dastardly manner so as to arouse intense and
extreme indignation of the community. For instance,
(i) when the house of the victim is set aflame with the end in view to
roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of torture or cruelty in
order to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his body is
dismembered in a fiendish manner.
II. Motive for commission of murder
34. When the murder is committed for a motive which evinces total
depravity and meanness. For instance when (a) a hired assassin commits
murder for the sake of money or reward (b) a cold-blooded murder is
committed with a deliberate design in order to inherit property or to gain
control over property of a ward or a person under the control of the
murderer or vis-a-vis whom the murderer is in a dominating position or in a
position of trust, or (c) a murder is committed in the course for betrayal of
the motherland.
III. Anti-social or socially abhorrent nature of the crime
35. (a) When murder of a member of a Scheduled Caste or minority
community etc., is committed not for personal reasons but in
circumstances which arouse social wrath. For instance when such a crime
is committed in order to terrorize such persons and frighten them into
fleeing from a place or in order to deprive them of, or make them
surrender, lands or benefits conferred on them with a view to reverse past
injustices and in order to restore the social balance.
(b) In cases of “bride burning” and what are known as “dowry deaths”
or when murder is committed in order to remarry for the sake of extracting
dowry once again or to marry another woman on account of infatuation.
IV. Magnitude of crime
36. When the crime is enormous in proportion. For instance when multiple
murders say of all or almost all the members of a family or a large number
of persons of a particular caste, community, or locality, are committed.
V. Personality of victim of murder
406
37. When the victim of murder is (a) an innocent child who could not have
or has not provided even an excuse, much less a provocation, for murder
(b) a helpless woman or a person rendered helpless by old age or infirmity
(c) when the victim is a person vis-a-vis whom the murderer is in a
position of domination or trust (d) when the victim is a public figure
generally loved and respected by the community for the services rendered
by him and the murder is committed for political or similar reasons other
than personal reasons.”
122. The principle laid down in Bachan Singh (supra) and Machhi Singh
(supra) came to be discussed and applied in all the cases relating to
imposition of death penalty for committing heinous offences. However,
lately, it was felt that the courts have not correctly applied the law laid
down
in Bachan Singh (supra) and Machhi Singh (supra), which has led to
inconsistency in sentencing process in India; also it was observed that the
list of categories of murder crafted in Machhi Singh (supra), in which
death sentence ought to be awarded are not exhaustive and needs to be
given even more expansive adherence owing to changed legal scenario. In
Swamy Shradhananda alias Murali Manohar Mishra (2) v. State of
Karnataka (2008) 13 SCC 767; a three-Judge Bench of this Court,
observed as under in this regard:-
“43. In Machhi Singh the Court crafted the categories of murder in which
`the Community' should demand death sentence for the offender with
great care and thoughtfulness. But the judgment in Machhi Singh was
rendered on 20 July, 1983, nearly twenty five years ago, that is to say a
full generation earlier. A careful reading of the Machhi Singh categories will
make it clear that the classification was made looking at murder mainly as
an act of maladjusted individual criminal(s). In 1983 the country was
relatively free from organised and professional crime. Abduction for
Ransom and Gang Rape and murders committed in course of those
407
offences were yet to become a menace for the society compelling the
Legislature to create special slots for those offences in the Penal Code. At
the time of Machhi Singh, Delhi had not witnessed the infamous Sikh
carnage. There was no attack on the country's Parliament. There were no
bombs planted by terrorists killing completely innocent people, men,
women and children in dozens with sickening frequency. There were no
private armies. There were no mafia cornering huge government contracts
purely by muscle power. There were no reports of killings of social activists
and `whistle blowers'. There were no reports of custodial deaths and rape
and fake encounters by police or even by armed forces. These
developments would unquestionably find a more pronounced reflection in
any classification if one were to be made today. Relying upon the
observations in Bachan Singh, therefore, we respectfully wish to say that
even though the categories framed in Machhi Singh provide very useful
guidelines, nonetheless those cannot be taken as inflexible, absolute or
immutable. Further, even in those categories, there would be scope for
flexibility as observed in Bachan Singh itself.”
123. A milestone in the sentencing policy is the concept of ‘life
imprisonment till the remainder of life’ evolved in Swamy Shradhananda
(2)(supra). In this case, a man committed murder of his wife for usurping
her property in a cold-blooded, calculated and diabolic manner. The trial
court convicted the accused and death penalty was imposed on him which
was affirmed by the High Court. Though the conviction was affirmed by this
Court also on the point of sentencing, the views of a two-Judge Bench of
this Court, in Swamy Shradhananda v. State of Karnataka (2007) 12
SCC 282 differed, and consequently, the matter was listed before a
three-Judge Bench, wherein a mid way was carved. The three-Judge
Bench, was of the view that even though the murder was diabolic,
presence of certain circumstances in favour of the accused, viz. no mental
408
or physical pain being inflicted on the victim, confession of the accused
before the High Court etc., made them reluctant to award death sentence.
However, the Court also realised that award of life imprisonment, which
euphemistically means imprisonment for a term of 14 years (consequent to
exercise of power of commutation by the executive), would be equally
disproportionate punishment to the crime committed. Hence, in Swamy
Shradhananda (2) (supra) the Court directed that the accused shall not
be released from the prison till the rest of his life. Relevant extract from the
judgment reads as under:
“92. The matter may be looked at from a slightly different angle. The issue of
sentencing has two aspects. A sentence may be excessive and unduly harsh
or it may be highly disproportionately inadequate. When an appellant comes
to this court carrying a death sentence awarded by the trial court and
confirmed by the High Court, this Court may find, as in the present appeal,
that the case just falls short of the rarest of the rare category and may feel
somewhat reluctant in endorsing the death sentence. But at the same time,
having regard to the nature of the crime, the Court may strongly feel that a
sentence of life imprisonment that subject to remission normally works out to
a term of 14 years would be grossly disproportionate and inadequate. What
then the Court should do? If the Court's option is limited only to two
punishments, one a sentence of imprisonment, for all intents and purposes,
of not more than 14 years and the other death, the court may feel tempted
and find itself nudged into endorsing the death penalty. Such a course would
indeed be disastrous. A far more just, reasonable and proper course would be
to expand the options and to take over what, as a matter of fact, lawfully
belongs to the court, i.e., the vast hiatus between 14 years' imprisonment and
death. It needs to be emphasized that the Court would take recourse to the
expanded option primarily because in the facts of the case, the sentence of
14 years imprisonment would amount to no punishment at all.”
124. After referring to a catena of judicial pronouncements post Bachan
Singh (supra) and Machhi Singh (supra), in the case of Ramnaresh
and
409
Ors. v. State of Chhattisgarh (2012) 4 SCC 257, this Court, tried to lay
down a nearly exhaustive list of aggravating and mitigating circumstances.
It would be apposite to refer to the same here:
“Aggravating circumstances
(1) The offences relating to the commission of heinous crimes like murder,
rape, armed dacoity, kidnapping, etc. by the accused with a prior
record of conviction for capital felony or offences committed by the
person having a substantial history of serious assaults and criminal
convictions.
(2) The offence was committed while the offender was engaged in the
commission of another serious offence.
(3) The offence was committed with the intention to create a fear
psychosis in the public at large and was committed in a public place by
a weapon or device which clearly could be hazardous to the life of
more than one person.
(4) The offence of murder was committed for ransom or like offences to
receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving
inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully
carrying out his duty like arrest or custody in a place of lawful
confinement of himself or another. For instance, murder is of a person
who had acted in lawful discharge of his duty Under Section 43 Code
of Criminal Procedure. When the crime is enormous in proportion
like making an attempt of murder of the entire family or members of a
particular community. When the victim is innocent, helpless or a
person relies upon the trust of relationship and social norms, like a
child, helpless woman, a daughter or a niece staying with a
father/uncle and is inflicted with the crime by such a trusted person.
(9) When murder is committed for a motive which evidences total
depravity and meanness.
(10) When there is a cold-blooded murder without provocation.
410
(11) The crime is committed so brutally that it pricks or shocks not only the
judicial conscience but even the conscience of the society.
Mitigating circumstances
(1) The manner and circumstances in and under which the offence
was committed, for example, extreme mental or emotional
disturbance or extreme provocation in contradistinction to all these
situations in normal course.
(2) The age of the accused is a relevant consideration but not a
determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the
crime again and the probability of the accused being reformed and
rehabilitated.
(4) The condition of the accused shows that he was mentally defective
and the defect impaired his capacity to appreciate the
circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render
such a behaviour possible and could have the effect of giving rise
to mental imbalance in that given situation like persistent
harassment or, in fact, leading to such a peak of human behaviour
that, in the facts and circumstances of the case, the accused
believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the
view that the crime was not committed in a preordained manner
and that the death resulted in the course of commission of another
crime and that there was a possibility of it being construed as
consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole
eyewitness though the prosecution has brought home the guilt of
the accused.”
125. Similarly, this Court in Sangeet and Another v. State of Haryana
(2013) 2 SCC 452, extensively analysed the evolution of sentencing policy
in India and stressed on the need for further evolution. In para (77), this
Court emphasized on making the sentencing process a principled one,
411
rather than Judge-centric one and held that a re-look is needed at some
conclusions that have been taken for granted and we need to continue the
development of the law on the basis of experience gained over the years
and views expressed in various decisions of this Court.
126. As dealing with sentencing, courts have thus applied the “Crime
Test”, “Criminal Test” and the “Rarest of the Rare Test”, the tests examine
whether the society abhors such crimes and whether such crimes shock
the conscience of the society and attract intense and extreme indignation
of
the community. Courts have further held that where the victims are
helpless women, children or old persons and the accused displayed
depraved mentality, committing crime in a diabolic manner, the accused
should be shown no remorse and death penalty should be awarded.
Reference may be made to Holiram Bordoloi v. State of Assam (2005)
3
SCC 793 [Para 15-17], Ankush Maruti Shinde and Ors. v. State of
Maharashtra (2009) 6 SCC 667 (para 31-34), Kamta Tiwari v. State of
Madhya Pradesh (1996) 6 SCC 250 (para 7-8), State of U.P. v. Satish
(2005) 3 SCC 114 (para 24-31), Sundar alias Sundarajan v. State by
Inspector of Police and Anr. (2013) 3 SCC 215 (para 36-38, 42-42.7, 43),
Sevaka Perumal and Anr. v. State of Tamil Nadu (1991) 3 SCC 471
412
(para 8-10, 12), Mohfil Khan and Anr. v. State of Jharkhand (2015) 1
SCC 67 (para 63-65).
127. Even the young age of the accused is not a mitigating circumstance
for commutation to life, as has been held in the case of Bhagwan Swarup
v. State of U.P. (1971) 3 SCC 759 (para 5), Deepak Rai v. State of
Bihar
(2013) 10 SCC 421 (para 91-100) and Shabhnam v. State of Uttar
Pradesh (2015) 6 SCC 632 (para 36).
128. Let me now refer to a few cases of rape and murder where this Court
has confirmed the sentence of death. In Molai & Anr. v. State of M.P.
(1999) 9 SCC 581, death sentence awarded to both the accused for
committing offences under Sections 376 (2)(g) IPC, 302 read with
Section 34 IPC and 201 IPC, was confirmed by this Court. The accused
had committed gang rape on the victim, strangulated her thereafter and
threw away her body into the septic tank with the cycle, after causing stab
injuries. It was held as under:
“36……It cannot be overlooked that Naveen, a 16 year old girl, was preparing
for her 10th examination at her house and suddenly both the accused took
advantage of she being alone in the house and committed a most shameful
act of rape. The accused did not stop there but they strangulated her by using
her under-garment and thereafter took her to the septic tank alongwith the
cycle and caused injuries with a sharp edged weapon. The accused did not
even stop there but they exhibited the criminality in their conduct by throwing
the dead body into the septic tank totally disregarding the respect for a
human dead body. Learned Counsel for the accused (appellants) could not
point any mitigating circumstances from the record of the case to justify the
413
reduction of sentence of either of the accused. In a case of this nature, in our
considered view, the capital punishment to both the accused is the only
proper punishment and we see no reason to take a different view than the
one taken by the courts below.”
129. In Bantu v. State of Uttar Pradesh (2008) 11 SCC 113, the victim
aged about five years was not only raped, but was murdered in a diabolic
manner. The Court awarded extreme punishment of death, holding that for
deciding just and appropriate sentence to be awarded for an offence, the
aggravating and mitigating factors and circumstances in which a crime has
been committed must be delicately balanced by the Court in a
dispassionate manner.
130. In Ankush Maruti Shinde and Ors. v. State of Maharashtra
(2009) 6 SCC 667, concerned accused were found guilty of offences under
Sections 307 IPC, 376(2)(g) IPC and 397 read with 395 and 396 of IPC.
This Court declined to interfere with the concurrent findings of the courts
below and upheld death penalty awarded to the accused, taking into
account the brutality of the incident, tender age of the deceased, and the
fact of a minor girl being mercilessly gang raped and then put to death. The
court also noted that there was no provocation from the deceased’s side
and the two surviving eye witnesses had fully corroborated the case of the
prosecution.
414
131. In Mehboob Batcha and Ors. v. State rep. by Supdt. of Police
(2011) 7 SCC 45, accused were policemen who had wrongfully confined
one Nandagopal in police custody in Police Station Annamalai Nagar on
suspicion of theft from 30.05.1992 till 02.06.1992 and had beaten him to
death there with lathis, and had also gang raped his wife Padmini in a
barbaric manner. This Court could not award death penalty due to omission
of the courts below in framing charge under Section 302, IPC. However, the
observations made by this Court are worth quoting here:
“Bane hain ahal-e-hawas muddai bhi munsif bhi Kise vakeel karein kisse
munsifi chaahen -- Faiz Ahmed Faiz
1. If ever there was a case which cried out for death penalty it is this one,
but it is deeply regrettable that not only was no such penalty imposed but
not even a charge under Section 302 IPC was framed against the accused
by the Courts below.
……………..
9. We have held in Satya Narain Tiwari @ Jolly and Anr. v. State of U.P.
(2010) 13 SCC 689 and in Sukhdev Singh v. State of Punjab, (2010) 13
SCC 656 that crimes against women are not ordinary crimes committed in
a fit of anger or for property. They are social crimes. They disrupt the
entire social fabric, and hence they call for harsh punishment…………”
132. In Mohd. Mannan @ Abdul Mannan v. State of Bihar (2011) 5
SCC 317, this Court upheld award of death sentence to a 43 year old
accused who brutally raped and murdered a minor girl, while holding a
position of trust. Relevant considerations of the Court while affirming the
death sentence are extracted as under:
“26….The postmortem report shows various injuries on the face, nails and
body of the child. These injuries show the gruesome manner in which she
415
was subjected to rape. The victim of crime is an innocent child who did not
provide even an excuse, much less a provocation for murder. Such cruelty
towards a young child is appalling. The Appellant had stooped so low as to
unleash his monstrous self on the innocent, helpless and defenseless
child. This act no doubt had invited extreme indignation of the community
and shocked the collective conscience of the society. Their expectation
from the authority conferred with the power to adjudicate, is to inflict the
death sentence which is natural and logical. We are of the opinion that
Appellant is a menace to the society and shall continue to be so and he
can not be reformed. We have no manner of doubt that the case in hand
falls in the category of the rarest of the rare cases and the trial court had
correctly inflicted the death sentence which had rightly been confirmed by
the High Court.”
In Shivaji @ Dadya Shankar Alhat v. State of Maharashtra (2008) 15
SCC 269; Rajendra Pralhadrao Wasnik v. The State of Maharashtra
(2012) 4 SCC 37 award of death penalty in case of rape and murder was
upheld, finding the incident brutal and accused a menace for the society.
133. In Dhananjoy Chatterjee alias Dhana v. State of W.B. (1994) 2
SCC 220, a security guard who was entrusted with the security of a
residential apartment had raped and murdered an eighteen year old
inhabitant of one of the flats in the said apartment, between 5.30 p.m. and
5.45 p.m. The entire case of the prosecution was based on circumstantial
evidence. However, Court found that it was a fit case for imposing death
penalty. Following observation of the Court while imposing death penalty is
worth quoting:-
“14. In recent years, the rising crime rate-particularly violent crime
against women has made the criminal sentencing by the courts a subject
of concern. Today there are admitted disparities. Some criminals get very
416
harsh sentences while many receive grossly different sentence for an
essentially equivalent crime and a shockingly large number even go
unpunished, thereby encouraging the criminal and in the ultimate making
justice suffer by weakening the system's credibility. Of course, it is not
possible to lay down any cut and dry formula relating to imposition of
sentence but the object of sentencing should be to see that the crime does
not go unpunished and the victim of crime as also the society has the
satisfaction that justice has been done to it. In imposing sentences, in the
absence of specific legislation, Judges must consider variety of factors
and after considering all those factors and taking an over-all view of the
situation, impose sentence which they consider to be an appropriate one.
Aggravating factors cannot be ignored and similarly mitigating
circumstances have also to be taken into consideration.
15. 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 fitting to 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.” (emphasis
added)
134. In a landmark judgment Shankar Kisanrao Khade v. State of
Maharashtra (2013) 5 SCC 546, Justice Madan B. Lokur (Concurring)
after analysing various cases of rape and murder, wherein death sentence
was confirmed by this Court, in para (122) briefly laid down the grounds
which weighed with the Court in confirming the death penalty and the
same
read as under:-
“122. The principal reasons for confirming the death penalty in the above
cases include:
(1) the cruel, diabolic, brutal, depraved and gruesome nature of the crime
(Jumman Khan v. State of U.P. (1991) 1 SCC 752, Dhananjoy
Chatterjee v. State of W.B. (1994) 2 SCC 220, Laxman Naik v. State of
Orissa (1994) 3 SCC 381, Kamta Tewari v. State of M.P. (1996) 6 SCC
250, Nirmal Singh v. State of Haryana (1999) 3 SCC 670, Jai Kumar v.
417
State of M.P. (1999) 5 SCC 1, State of U.P. v. Satish (2005) 3 SCC 114,
Bantu v. State of U.P. (2008) 11 SCC 113, Ankush Maruti Shinde v.
State of Maharashtra (2009) 6 SCC 667, B.A. Umesh v. State of
Karnataka (2011) 3 SCC 85, Mohd. Mannan v. State of Bihar (2011) 5
SCC 317 and Rajendra Pralhadrao Wasnik v. State of Maharashtra
(2012) 4 SCC 37);
(2) the crime results in public abhorrence, shocks the judicial conscience
or the conscience of society or the community (Dhananjoy Chatterjee
(1994) 2 SCC 220, Jai Kumar (1999) 5 SCC 1, Ankush Maruti Shinde
(2009) 6 SCC 667 and Mohd. Mannan (2011) 5 SCC 317);
(3) the reform or rehabilitation of the convict is not likely or that he would
be a menace to society (Jai Kumar(1999) 5 SCC 1, B.A. Umesh (2011) 3
SCC 85 and Mohd. Mannan (2011) 5 SCC 317);
(4) the victims were defenceless (Dhananjoy Chatterjee (1994) 2 SCC
220, Laxman Naik (1994) 3 SCC 381, Kamta Tewari (1996) 6 SCC 250,
Ankush Maruti Shinde (2009) 6 SCC 667, Mohd. Mannan (2011) 5 SCC
317 and Rajendra Pralhadrao Wasnik (2012) 4 SCC 37);
(5) the crime was either unprovoked or that it was premeditated
(Dhananjoy Chatterjee (1994) 2 SCC 220, Laxman Naik (1994) 3 SCC
381, Kamta Tewari (1996) 6 SCC 250, Nirmal Singh (1999) 3 SCC 670,
Jai Kumar (1999) 5 SCC 1, Ankush Maruti Shinde (2009) 6 SCC 667,
B.A. Umesh (2011) 3 SCC 85 and Mohd. Mannan (2011) 5 SCC 317)
and in three cases the antecedents or the prior history of the convict was
taken into consideration (Shivu v. High Court of Karnataka (2007) 4
SCC 713, B.A. Umesh (2011) 3 SCC 85 and Rajendra Pralhadrao
Wasnik (2012) 4 SCC 37).”
135. We also refer to para (106) of Shankar Kisanrao Khade’s case
where Justice Madan B. Lokur (Concurring) has exhaustively analysed
the case of rape and murder where death penalty was converted to that of
imprisonment for life and some of the factors that weighed with the Court
in
such commutation. Para (106) reads as under:-
“106. A study of the above cases suggests that there are several reasons,
cumulatively taken, for converting the death penalty to that of
imprisonment for life. However, some of the factors that have had an
influence in commutation include:
(1) the young age of the accused [Amit v. State of Maharashtra (2003) 8
SCC 93 aged 20 years, Rahul v. State of Maharashtra (2005) 10 SCC
418
322 aged 24 years, Santosh Kumar Singh v. State (2010) 9 SCC 747
aged 24 years, Rameshbhai Chandubhai Rathod (2) (2011) 2 SCC 764
aged 28 years and Amit v. State of U.P.(2012) 4 SCC 107 aged 28
years];
(2) the possibility of reforming and rehabilitating the accused (in Santosh
Kumar Singh (2010) 9 SCC 747 and Amit v. State of U.P.(2012) 4 SCC
107 the accused, incidentally, were young when they committed the
crime);
(3) the accused had no prior criminal record (Nirmal Singh (1999) 3 SCC
670, Raju (2001) 9 SCC 50, Bantu (2001) 9 SCC 615, Amit v. State of
Maharashtra (2003) 8 SCC 93, Surendra Pal Shivbalakpal (2005) 3
SCC 127, Rahul (2005) 10 SCC 322 and Amit v. State of U.P (2012) 4
SCC 107);
(4) the accused was not likely to be a menace or threat or danger to
society or the community (Nirmal Singh (1999) 3 SCC 670, Mohd.
Chaman (2001) 2 SCC 28, Raju (2001) 9 SCC 50, Bantu (2001) 9 SCC
615, Surendra Pal Shivbalakpal (2005) 3 SCC 127, Rahul (2005) 10
SCC 322 and Amit v. State of U.P. (2012) 4 SCC 107).
(5) a few other reasons need to be mentioned such as the accused having
been acquitted by one of the courts (State of T.N. v. Suresh (1998) 2
SCC 372, State of Maharashtra v. Suresh (2000) 1 SCC 471, State of
Maharashtra v. Bharat Fakira Dhiwar (2002) 1 SCC 622, State of
Maharashtra v. Mansingh (2005) 3 SCC 131 and Santosh Kumar
Singh (2010) 9 SCC 747);
(6) the crime was not premeditated (Kumudi Lal v. State of U.P. (1999) 4
SCC 108, Akhtar v. State of U.P. (1999) 6 SCC 60, Raju v. State of
Haryana (2001) 9 SCC 50 and Amrit Singh v. State of Punjab (2006) 12
SCC 79);
(7) the case was one of circumstantial evidence (Mansingh (2005) 3 SCC
131 and Bishnu Prasad Sinha (2007) 11 SCC 467).
In one case, commutation was ordered since there was apparently no
“exceptional” feature warranting a death penalty (Kumudi Lal (1999) 4
SCC 108) and in another case because the trial court had awarded life
sentence but the High Court enhanced it to death (Haresh Mohandas
Rajput (2011) 12 SCC 56).”
419
136. In the same judgment in Shankar Kisanrao Khade v. State of
Maharashtra (2013) 5 SCC 546, Justice Madan B. Lokur (concurring)
while elaborately analysing the question of imposing death penalty in
specific facts and circumstances of that particular case, concerning rape
and murder of a minor, discussed the sentencing policy of India, with
special reference to execution of the sentences imposed by the Judiciary.
The Court noted the prima facie difference in the standard of yardsticks
adopted by two organs of the government viz. Judiciary and the Executive
in treating the life of convicts convicted of an offence punishable with death
and recommended consideration of Law Commission of India over this
issue. The relevant excerpt from the said judgment, highlighting the
inconsistency in the approach of Judiciary and Executive in the matter of
sentencing, is as under:
“148. It seems to me that though the Courts have been applying the rarest
of rare principle, the Executive has taken into consideration some factors
not known to the Courts for converting a death sentence to imprisonment
for life. It is imperative, in this regard, since we are dealing with the lives of
people (both the accused and the rape-murder victim) that the Courts lay
down a jurisprudential basis for awarding the death penalty and when the
alternative is unquestionably foreclosed so that the prevailing uncertainty
is avoided. Death penalty and its execution should not become a matter of
uncertainty nor should converting a death sentence into imprisonment for
life become a matter of chance. Perhaps the Law Commission of India can
resolve the issue by examining whether death penalty is a deterrent
punishment or is retributive justice or serves an incapacitative goal.”
420
In Shankar Kisanrao’s case, it was observed by Justice Madan B.
Lokur
that Dhananjay Chatterjee’s case was perhaps the only case where
death
sentence imposed on the accused, who was convicted for rape was
executed.
137. Another significant development in the sentencing policy of India is
the ‘victim-centric’ approach, clearly recognised in Machhi Singh (Supra)
and re-emphasized in a plethora of cases. It has been consistently held
that the courts have a duty towards society and that the punishment
should
be corresponding to the crime and should act as a soothing balm to the
suffering of the victim and their family. [Ref: Gurvail Singh @ Gala and
Anr. v. State of Punjab (2013) 2 SCC 713; Mohfil Khan and Anr. v.
State
of Jharkhand (2015) 1 SCC 67; Purushottam Dashrath Borate and
Anr.
v. State of Maharashtra (2015) 6 SCC 652]. The Courts while considering
the issue of sentencing are bound to acknowledge the rights of the victims
and their family, apart from the rights of the society and the accused. The
agony suffered by the family of the victims cannot be ignored in any case.
In Mohfil Khan (supra), this Court specifically observed that ‘it would be
the paramount duty of the Court to provide justice to the
incidental
victims of the crime – the family members of the deceased
persons.
421
138. The law laid down above, clearly sets forth the sentencing policy
evolved over a period of time. I now proceed to analyse the facts and
circumstances of the present case on the anvil of above-stated principles.
To be very precise, the nature and the manner of the act committed by the
accused, and the effect it casted on the society and on the victim’s family,
are to be weighed against the mitigating circumstances stated by the
accused and the scope of their reform, so as to reach a definite reasoned
conclusion as to what would be appropriate punishment in the present
case- ‘death sentence’, life sentence commutable to 14 years’ or
‘life
imprisonment for the rest of the life’.
139. The question would be whether the present case could be one of the
rarest of rare cases warranting death penalty. Before the court proceed to
make a choice whether to award death sentence or life imprisonment, the
court is to draw up a balance-sheet of aggravating and mitigating
circumstances attending to the commission of the offence and then strike a
balance between those aggravating and mitigating circumstances. Two
questions are to be asked and answered:- (i) Is there something
uncommon about the crimes which regard sentence of imprisonment for
life
inadequate; (ii) Whether there is no alternative punishment suitable except
death sentence. Where a crime is committed with extreme brutality and
the
422
collective conscience of the society is shocked, courts must award death
penalty, irrespective of their personal opinion as regards desirability of
death penalty. By not imposing a death sentence in such cases, the courts
may do injustice to the society at large.
140. We are here concerned with the award of an appropriate sentence in
case of brutal gang-rape and murder of a young lady, involving most
gruesome and barbaric act of inserting iron rods in the private parts of the
victim. The act was committed in connivance and collusion of six who were
on a notorious spree running a bus, showcasing as a public transport, with
the intent of attracting passengers and committing crime with them. The
victim and her friend were picked up from the Munirka bus stand with the
mala fide intent of ravishing and torturing her. The accused not only
abducted the victim, but gang-raped her, committed unnatural offence by
compelling her for oral sex, bit her lips, cheeks, breast and caused
horrifying injuries to her private parts by inserting iron rod which ruptured
the vaginal rectum, jejunum and rectum. The diabolical manner in which
crime was committed leaves one startled as to the pervert mental state of
the inflictor. On top of it, after having failed to kill her on the spot, by
running
the bus over her, the victim was thrown half naked in the wintery night,
with
grievous injuries.
423
141. If we look at the aggravating circumstances in the present case,
following factors would emerge:
 Diabolic nature of the crime and the manner of committing
crime, as reflected in committing gang-rape with the
victim; forcing her to perform oral sex, injuries on the
body of the deceased by way of bite marks; insertion of
iron rod in her private parts and causing fatal injuries to
her private parts and other internal injuries; pulling out her
internal organs which caused sepsis and ultimately led to
her death; throwing the victim and the complainant
(PW-1) naked in the cold wintery night and trying to run
the bus over them.
 The brazenness and coldness with which the acts were
committed in the evening hours by picking up the
deceased and the victim from a public space, reflects the
threat to which the society would be posed to, in case the
accused are not appropriately punished. More so, it
reflects that there is no scope of reform.
 The horrific acts reflecting the in-human extent to which
the accused could go to satisfy their lust, being
completely oblivious, not only to the norms of the society,
but also to the norms of humanity.
 The acts committed so shook the conscience of the
society.
142. As noted earlier, on the aspect of sentencing, seeking reduction of
death sentence to life imprisonment, three of the convicts/appellants
424
namely A-3 Akshay, A-4 Vinay and A-5 Pawan placed on record, through
their individual affidavits dated 23.03.2017, following mitigating
circumstances:-
(a) Family circumstances such as poverty and rural
background,
(b) Young age,
(c) Current family situation including age of parents, ill health
of family members and their responsibilities towards their
parents and other family members,
(d) Absence of criminal antecedents,
(e) Conduct in jail, and
(f) Likelihood of reformation.
In his affidavit, accused Mukesh reiterated his innocence and only pleaded
that he is falsely implicated in the case.
143. In Purushottam Dashrath Borate and Anr. v. State of
Maharashtra (2015) 6 SCC 652, this Court held that age of the accused or
family background of the accused or lack of criminal antecedents cannot be
said to be the mitigating circumstance. It cannot also be considered as
mitigating circumstance, particularly taking into consideration, the nature
of
425
heinous offence and cold and calculated manner in which it was committed
by the accused persons.
144. Society’s reasonable expectation is that deterrent punishment
commensurate with the gravity of the offence be awarded. When the crime
is brutal, shocking the collective conscience of the community, sympathy in
any form would be misplaced and it would shake the confidence of public in
the administration of criminal justice system. As held in Om Prakash v.
State of Haryana (1999) 3 SCC 19, the Court must respond to the cry of
the society and to settle what would be a deterrent punishment for what
was an apparently abominable crime.
145. Bearing in mind the above principles governing the sentencing policy,
I have considered all the aggravating and mitigating circumstances in the
present case. Imposition of appropriate punishment is the manner in which
the courts respond to the society’s cry for justice against the crime. Justice
demands that the courts should impose punishments befitting the crime so
that it reflects public abhorrence of the crime. Crimes like the one before us
cannot be looked with magnanimity. Factors like young age of the accused
and poor background cannot be said to be mitigating circumstances.
Likewise, post-crime remorse and post-crime good conduct of the accused,
the statement of the accused as to their background and family
426
circumstances, age, absence of criminal antecedents and their good
conduct in prison, in my view, cannot be taken as mitigating circumstances
to take the case out of the category of “rarest of rare cases”. The
circumstances stated by the accused in their affidavits are too slender to
be
treated as mitigating circumstances.
146. In the present case, there is not even a hint of hesitation in my mind
with respect to the aggravating circumstances outweighing the mitigating
circumstances and I do not find any justification to convert the death
sentence imposed by the courts below to ‘life imprisonment for the rest of
the life’. The gruesome offences were committed with highest viciousness.
Human lust was allowed to take such a demonic form. The accused may
not be hardened criminals; but the cruel manner in which the gang-rape
was committed in the moving bus; iron rods were inserted in the private
parts of the victim; and the coldness with which both the victims were
thrown naked in cold wintery night of December, shocks the collective
conscience of the society. The present case clearly comes within the
category of ‘rarest of rare case’ where the question of any other
punishment is ‘unquestionably foreclosed’. If at all there is a case
warranting award of death sentence, it is the present case. If the
dreadfulness displayed by the accused in committing the gang-rape,
427
unnatural sex, insertion of iron rod in the private parts of the victim does
not
fall in the ‘rarest of rare category’, then one may wonder what else would
fall in that category. On these reasoning recorded by me, I concur with the
majority in affirming the death sentence awarded to the accused persons.
147. The incident of gang-rape on the night of 16.12.2012 in the capital
sparked public protest not only in Delhi but nation-wide. We live in a
civilized society where law and order is supreme and the citizens enjoy
inviolable fundamental human rights. But when the incident of gang-rape
like the present one surfaces, it causes ripples in the conscience of society
and serious doubts are raised as to whether we really live in a civilized
society and whether both men and women feel the same sense of liberty
and freedom which they should have felt in the ordinary course of a
civilized society, driven by rule of law. Certainly, whenever such grave
violations of human dignity come to fore, an unknown sense of insecurity
and helplessness grabs the entire society, women in particular, and the
only succour people look for, is the State to take command of the situation
and remedy it effectively.
148. The statistics of National Crime Records Bureau which I have
indicated in the beginning of my judgment show that despite the progress
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made by women in education and in various fields and changes brought in
ideas of women’s rights, respect for women is on the decline and crimes
against women are on the increase. Offences against women are not a
women’s issue alone but, human rights issue. Increased rate of crime
against women is an area of concern for the law-makers and it points out
an emergent need to study in depth the root of the problem and remedy
the
same through a strict law and order regime. There are a number of
legislations and numerous penal provisions to punish the offenders of
violence against women. However, it becomes important to ensure that
gender justice does not remain only on paper.
149. We have a responsibility to set good values and guidance for
posterity. In the words of great scholar, Swami Vivekananda, “the best
thermometer to the progress of a nation is its treatment of its women.”
Crime against women not only affects women’s self esteem and dignity but
also degrades the pace of societal development. I hope that this gruesome
incident in the capital and death of this young woman will be an eye-opener
for a mass movement “to end violence against women” and “respect
for
women and her dignity” and sensitizing public at large on gender justice.
Every individual, irrespective of his/her gender must be willing to assume
the responsibility in fight for gender justice and also awaken public opinion
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on gender justice. Public at large, in particular men, are to be sensitized on
gender justice. The battle for gender justice can be won only with strict
implementation of legislative provisions, sensitization of public, taking
other
pro-active steps at all levels for combating violence against women and
ensuring widespread attitudinal changes and comprehensive change in the
existing mind set. We hope that this incident will pave the way for the
same.
.………………………..J.
[R. BANUMATHI]
New Delhi;
May 05, 2017.