Monday, May 8, 2017

Mukesh & Anr Versus State for NCT of Delhi & Ors. May 05, 2017


                        IN THE SUPREME COURT OF INDIA


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

Mukesh & Anr.                                …Appellants


State for NCT of Delhi & Ors.                       …Respondents

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

                               J U D G M E N T

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

The cold evening of Delhi  on  16th  December,  2012  could  not  have  even
remotely planted the feeling in the twenty-three  year  old  lady,  a  para-
medical student, who had gone with her friend to watch a film at PVR  Select
City Walk Mall, Saket, that in the  next  few  hours,  the  shattering  cold
night that was gradually stepping in would bring  with  it  the  devastating
hour of darkness when she, alongwith her friend, would get  into  a  bus  at
Munirka bus stand to be dropped at a particular place;  and  possibly  could
not have imagined that she would be a prey to the savage lust of a  gang  of
six, face brutal assault and become a playful thing  that  could  be  tossed
around at their wild whim and her private parts would be  ruptured  to  give
vent to their pervert sexual appetite, unthinkable  and  sadistic  pleasure.
What the victims had not conceived of, it all happened,  as  the  chronology
of events would unroll. The attitude, perception, the  beastial  proclivity,
inconceivable self-obsession and individual centralism of the six  made  the
young lady to suffer immense trauma and,  in  the  ultimate  eventuate,  the
life-spark that  moves  the  bodily  frame  got  extinguished  in  spite  of
availing of  all  the  possible  treatment  that  the  medical  world  could
provide.  The death took place at a hospital  in  Singapore  where  she  had
been taken to with the hope that her life could be saved.

2.    The friend of the girl survived in spite of being thrown  outside  the
bus along with the girl and the attempt of  the  accused-appellants  to  run
over them became futile as they, by  their  slight  movement,  could  escape
from being crushed under the bus, and  the  appellants  left  them  thinking
that they were no more alive. Lying naked, as the clothes were removed  from
their bodies, they shouted for help and as good fortune would have  it,  the
night patrolling vehicle, a motor cycle,  arrived  and  the  said  man,  Raj
Kumar, PW-72, gave the shirt to the boy and contacted the control room  from
which a Bolero patrol van came and they brought a  bed  sheet  and  tore  it
into two parts and gave a piece to each of the victims so  that  they  could
cover themselves and feel civil.  The  PCR  van  took  the  victims  to  the
Safdarjung Hospital where treatment commenced.

3.    The present case is  one  where  there  can  be  no  denial  that  the
narrative is long, the investigation has been cautious  and  to  bring  home
the charge, modern and progressive scientific  methods  have  been  adopted.
Mr. Siddharth Luthra, learned senior counsel for the  respondent-State,  has
made indefatigable endeavour to project that the investigation  is  flawless
and exemplary; and Mr. M.L. Sharma and  Mr. A.P. Singh, learned counsel  for
the appellants, have severely criticized it as faulty on many  a  score  and
that it is completely biased;  and  Mr.  Sanjay  R.  Hegde,  learned  senior
counsel, the friend of the Court, in his own way, has highlighted  that  the
investigation  is  not  only  flawed  but  also  unreliable  which  deserves
chastisement and warrants rejection.  Many facets of the investigation  that
pertain to recording  of  dying  declaration,  recording  of  statements  of
witnesses under Section 161 of the Code of Criminal  Procedure  (CrPC),  the
medical examination, holding of the test identification parade,  the  manner
and method of search and seizure and  the  procedure  of  arrest  have  been
seriously commented upon. That apart, criticism  is  advanced  from  many  a
spectrum to strengthen the stance that it does not  meet  the  standard  and
test determined by  law.   Needless  to  say,  the  factual  score  and  the
investigation have to withstand the test of reliability  and  acceptability.
The appreciation of evidence brought on record  requires  to  be  appositely
scrutinized to adjudge the fact whether the appellants are guilty  of  their
culpability or there has  been  public  pressure,  as  alleged,  to  falsely
implicate the appellants or to treat them as guinea pigs to save others  and
accept the hypothesis that the prosecution has booked them at  the  instance
of some political executives or  to  save  a  situation  which  a  disturbed
society perceives as a collective catastrophe  on  the  paradigm  of  social
stability and to sustain its faith in the investigation to keep the  precept
of rule of law  alive.   In  essence,  the  submission  is  that  the  whole
exercise, namely, investigation and trial, has been  carried  out  with  the
sole purpose for the survival of the prosecuting agency.  We have stated  in
the beginning that Mr. Sharma and Mr. Singh  appearing  for  the  appellants
commenced their submission with all the vehemence and sensitivity  at  their
command to strike at the root of the prosecution branding it as  suspicious,
absolutely unreliable, apathetic to the concept of  individual  dignity  and
engaged in maladroit effort to book the vulnerable and the  innocent  so  as
to disguise and cover their inefficiency to catch  the  real  culprits.   In
the course of our deliberation, we shall dwell  upon  the  same  and  keenly
scrutinize the justifiability of the aforesaid criticism.

The Prosecution Narrative

4.     Presently,  we  shall  advert  to  the  exposition  of   facts.   The
prosecution case,  as  projected,  is  that  on  16.12.2012,  the  deceased,
‘Nirbhaya’ (not her real name), had gone with her friend, the informant, PW-
1, to the PVR situated in Select City Walk Mall, Saket  to  watch  a  movie.
After the show was over, about 8:30 p.m., they  took  an  auto  and  reached
Munirka bus stand wherefrom they boarded a white coloured chartered bus [DL-
1P-C-0149, Ext.P1] which was bound to Dwarka/Palam Road, as  a  boy  in  the
bus was calling for commuters for the said destination. As per  the  version
of the informant, PW-1, the friend of the prosecutrix, the  bus  had  yellow
and green lines/stripes and the word “Yadav” was written on it.  After  both
of them had entered the bus, they noticed  that  six  persons  were  already
inside the bus, four in the cabin of the driver and two behind the  driver’s
cabin.  The deceased and the informant sat on the left side in  the  row  of
two-seaters and paid the fare of twenty  rupees  as  demanded.  Before  they
could get the feeling  of  a  safe  journey  (though  not  a  time-consuming
journey), a feeling of lonely suffocation and a sense of danger  barged  in,
for the accused persons did not allow anyone  else  to  board  and  the  bus
moved and the lights inside the bus were put off. With the lights being  put
off, the darkness and the fear of  the  unexpected  darkness  ruled.  A  few
minutes later, three persons  (who  have  been  identified  as  accused  Ram
Singh, Akshay and a young boy,  who  has  been  treated  as  a  juvenile  in
conflict with law) came out of the driver’s cabin and started to  abuse  PW-
1.  The young companion of the deceased raised opposition to the abuse  that
led to an altercation which invited the other two who were  sitting  outside
the driver’s cabin to join. The spirit to oppose and the duty  to  save  the
prosecutrix had to die down and perilously succumb to  the  assault  by  the
accused persons with the iron rods that caused injuries to  his  head,  both
the legs and other parts of the body and the consequence was  that  he  fell
on the floor of the bus to hear the painful cries of the lady who, he  knew,
was being treated as an object, an article for experimentation and  prey  to
the pervert proclivity of the six  but  could  do  nothing  except  to  hear
unbearable cries made in agony and pain. His spirit was dead, and bound to.

5.    As the prosecution story further unfurls,  the  two  accused  persons,
namely, Pawan and Vinay, pinned the young man down and  robbed  the  victims
of their mobiles besides robbing the informant of his purse carrying a  Citi
Bank credit card, ICICI Bank Debit Card, his identity  card  issued  by  his
employer-company, metro card, a  sum  of  rupees  one  thousand,  his  Titan
Watch, a golden ring studded with jewels and  a  silver  ring  studded  with
pearl, black colour Hush  Puppies shoes, black colour Numero  Uno  jeans,  a
grey colour pullover and a brown colour blazer. As per the  version  of  the
prosecution, PW-1 was carrying two mobiles and the prosecutrix was  carrying
only one, and the accused snatched away all the three mobiles.

6.    The overpowering  was  not  meant  to  satisfy  the  avarice.  As  the
accusations proceed, after the informant was overpowered, as it  could  only
have a singular result, the accused persons, namely, Ram Singh,  Akshay  and
the Juvenile in Conflict with Law (JCL) took the  prosecutrix  to  the  rear
side of the bus and she was raped by them, one after the other.

7.    After  committing  rape,  the  accused  Ram  Singh  (since  deceased),
accused Akshay and the JCL came towards the informant, PW-1, and nailed  him
down; then the accused Vinay and accused Pawan went to the rear side of  the
bus and committed rape on the prosecutrix, one by one.   PW-1  noticed  that
earlier the bus was moving at fast speed but after sometime,  he  felt  that
the speed of the bus was reduced and he saw that  the  accused  Mukesh,  who
was driving the bus, came near him and hit him with  the  rod  and  he  also
went  to  the  rear  side  of  the  bus  and  raped  the  prosecutrix.   The
prosecutrix was brutally gang raped by the accused one after the  other  and
she was also  subjected  to  unnatural  sex.   Her  private  parts  and  her
internal organs were seriously injured by inserting iron  rod  and  hand  in
the rectal and vaginal region.  As per PW-1, he had heard the cries  of  the
prosecutrix like  “chod  do,  bachao”.   PW-1  could  hear  the  prosecutrix
shouting in a loud oscillating voice. The prosecutrix was  carrying  a  grey
colour purse having an Axis Bank ATM card and other belongings. The  accused
persons robbed her of her belongings and stripped her. They also  took  away
the clothes of the informant while beating him with iron rods.  The  accused
were exhorting that both the victims be not left  alive.  The  accused  then
tried to throw both the informant and the prosecutrix out of the moving  bus
from its rear door but could not open it and so, they brought  them  to  the
front door and threw them out of the moving bus at National Highway  No.  8,
Hotel Delhi 37, Mahipalpur flyover by the side of the road.

8.    As indicated earlier, the prosecutrix and PW-1 were noticed by  PW-72,
Raj Kumar, who heard the voice of ‘bachao, bachao’ from  the  left  side  of
the road near a milestone opposite to Hotel Delhi 37.  PW-72  saw  PW-1  and
the  prosecutrix  sitting  naked  having  blood  all  around.    Immediately
thereafter, PW-72, Raj Kumar, informed  PW-70,  Ram  Pal,  who  was  in  the
Control Room, requesting him to call PCR.  PW-70, Ram  Pal,  of  EGIS  Infra
Management India (P) Limited, dialed  100  No.  and  even  asked  his  other
patrolling staff to reach the spot.

9.    About 10:24 p.m., PW-73, H.C. Ram Chander, who was in  charge  of  PCR
van Zebra 54, received information about  the  incident  and  the  lying  of
victims in a naked condition near the foot of Mahipalpur  fly  over  towards
Dhaula Kuan opposite GMR  Gate.   PW-73  reached  the  spot  and  found  the
victims.  He got the crowd dispersed and brought a bottle  of  water  and  a
bedsheet from the nearby hotel and tore the same into two parts and gave  it
to both the victims to cover themselves.

Travel to the Safdarjung Hospital

10.   About 11:00 p.m., PW-73 took the victims to Safdarjung  Hospital,  New
Delhi.  On the way to the hospital, the victims gave their names to him  and
informed that they had boarded a bus from Munirka and that after  some  time
the occupants had started misbehaving and had beaten the boy and  taken  the
girl (prosecutrix) to the rear side of the bus and committed  rape  on  her.
Thereafter, they had taken off the clothes of the victims  and  thrown  them
naked on the road.  While leaving  the  informant,  PW-1,  in  the  casualty
where he was examined by PW-51, Dr. Sachin Bajaj,  and  his  MLC,  Ext.  PW-
51/A, was drawn up, PW-73 took the prosecutrix to the  Gynae  ward  and  got
her admitted there.  The MLC of the prosecutrix,PW- 49/B,  was  prepared  by
PW-49, Dr. Rashmi Ahuja.

11.   PW-49, Dr. Rashmi Ahuja, recorded the history of the incident as  told
to her by the prosecutrix and noted the same in  Exhibit  PW-49/A.   As  per
the version narrated by the prosecutrix to her, it was a case of  gang  rape
in a moving bus by 4-5 persons when  the  prosecutrix  was  returning  after
watching a movie with the informant.  She was slapped on  her  face,  kicked
on her abdomen and bitten over lips, cheek, breast and  vulval  region.  The
prosecutrix remembered intercourse two times and  rectal  penetration  also.
She was also forced to have unnatural oral sex but she  refused.   All  this
continued for half an hour and then she was thrown off from the  moving  bus
along with her friend.

12.   The following external injuries were noted by Dr. Rashmi Ahuja in  Ex.

Bruise over left eye covering whole of the eye
Injury mark (abrasion) at right angle of eye
Bruise over left nostril involving upper lip
Both lips edematous
Bleeding from upper lip present
Bite mark over right cheek
Left angle of mouth injured (small laceration)
Bite mark over left cheek
Right breast bite marks below areola present
Left breast bruise over right lower quadrant, bite  mark  in  inferior  left

Per abdomen:
Guarding & rigidity present

Local examination:
Cut mark (sharp) over right labia present
A tag of vagina (6 cm in length) hanging outside the introitus
There was profuse bleeding from vagina

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

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

13.   As the evidence brought on  record  would  show,  20  samples  of  the
prosecutrix were taken and sealed with the seal of the hospital  and  handed
over to PW-59, Inspector Raj Kumari.

Registration of FIR and the progress thereon

14.   At this juncture, it is necessary to  state  that  after  the  victims
were  rescued,  the  informant,  PW-1,  Awninder  Pratap,  gave  his   first
statement to the police at 3:45 a.m. on  17.12.2012  which  culminated  into
the recording of  the  FIR  at  5:40  a.m.  being  FIR  No.  413/2012  dated
17.12.2012,  PS  Vasant  Vihar  under  Section  120B    IPC   and   Sections
365/366/376(2)(g)/377/307/302 IPC and/or  Sections  396/395  IPC  read  with
Sections 397/201/412 IPC.  It was thereafter handed over  to  S.I.  Pratibha
Sharma, PW-80, for investigation.

15.   On the same night,  i.e.,  16/17.12.2012,  the  prosecutrix  underwent
first surgery around 4:00 a.m. The prosecutrix was operated  by  PW-50,  Dr.
Raj Kumar Chejara, Safdarjung Hospital,  New  Delhi  and  his  surgery  team
comprised of Dr. Gaurav and Dr. Piyush.  OT notes  have  been  exhibited  as
Ex.PW-50/A and Ex.PW-50/B.  The second and third  surgeries  were  performed
on 19.12.2012 and 23.12.2012 respectively.

16.   During the period the prosecutrix was undergoing surgeries  one  after
the other, and when all were concerned about her progress of  recovery,  the
prosecution was carrying out its investigation in a manner that  it  thought
systematic. The first and foremost responsibility of the prosecution was  to
find out, on the basis of the information given, about the accused  persons.
That is how the prosecution story uncurtains.

17.   On 17.12.2012, supplementary statements of PW-1 were recorded  by  PW-
80, SI Pratibha Sharma.  Based on the description of the bus given by  PW-1,
the offending bus bearing No. DL-1PC-0149  was  found  parked  in  Ravi  Das
Jhuggi Camp, R.K. Puram, New Delhi.  PW-80  along  with  PW-74,  SI  Subhash
Chand, and PW-65, Ct. Kripal Singh, went to the spot and found  accused  Ram
Singh sitting in the bus.  On seeing the police, Ram  Singh  got  down  from
the bus and started running.  The police intercepted Ram Singh  and  he  was
arrested and interrogated.

18.   Personal  search  was  conducted  on  Ram  Singh  and  his  disclosure
statement, Ex. P-74/F, was recorded by PW-74 and  his  team.  Based  on  his
disclosure  statement,  PW-74,  Investigating  Officer,  SI  Subhash  Chand,
seized the bus, Ex. P1, vide Seizure Memo Ex. PW- 74/K.   PW-74  seized  the
seat cover of the bus of red colour and its curtains of yellow  colour.   On
the bus, ‘Yadav’ was found  written  on  its  body  with  green  and  yellow
stripes on it.  The Investigating Officer also seized the key  of  the  bus,
Ex. P-74/2, vide Seizure Memo Ex. PW-74/J.  The documents of  the  bus  were
also seized.  The disclosure statement of Ram Singh,  Ex.  PW-74/F,  led  to
the recovery of his bloodstained clothes, iron rods and debit card  of  Asha
Devi, the mother of the  prosecutrix.  PW-74,  Investigating  Officer,  also
recovered ashes and the partly unburnt clothes lying near the bus which  was
seized vide Memo Exhibit No. PW-74/M and Unix Mobile Phone  with  MTNL  Sim,
Ex. P-74/5, vide Memo Ex. P/74E.  The  Investigating  Officer  prepared  the
site plan of the place where the bus was parked and  from  where  the  ashes
were found.

The arrest of the accused persons and seizure of articles

19.   The arrest of accused, Ram Singh, also led to the arrest of two  other
accused persons, namely, accused Vinay Sharma and accused Pawan @ Kaalu.  On
18.12.2012, accused Mukesh was apprehended from village Karoli by PW-58,  SI
Arvind Kumar, and was produced before PW-80, SI  Pratibha  Sharma.   At  the
instance of accused Mukesh Singh, a Samsung Galaxy  Trend  DUOS  Blue  Black
mobile belonging to the informant  was  recovered.  On  23.12.2012,  at  his
instance, PW-80 prepared the route chart of the  route  where  Mukesh  drove
the bus at the time of the incident,  Ex  PW-80/H.   Besides  that,  he  got
recovered his bloodstained clothes from the garage of his brother at  Anupam
Apartment,  Saidulajab,  Saket,  New  Delhi.   He  opted  to  undergo   Test
Identification Parade.  In the Test Identification Parade conducted  by  PW-
17, Sandeep Garg, Metropolitan Magistrate, PW-1, identified accused-Mukesh.

20.   Accused  Pawan  was  apprehended  and  arrested  about  1:15  p.m.  on
18.12.2012 vide memo Ex.PW-60/A; his disclosure,  Ex.PW-60/G,  was  recorded
and his  personal  search  was  conducted  vide  memo  Ex.PW-60/C.   In  his
disclosure  statement,  Pawan  pointed  out  Munirka  bus  stand  where  the
prosecutrix and PW-1 boarded the bus and memo Ex.PW-68/I was  prepared.   He
also pointed at the spot where PW-1 and the prosecutrix were thrown  out  of
the bus and memo Ex.PW-68/J was prepared in this regard.

21.   Accused Vinay Sharma got recovered his  bloodstained  clothes,  PW-1’s
Hush Puppies leather shoes and the prosecutrix’s mobile phone,  Nokia  Model
3110 of black grey colour. Further recoveries  were  made  pursuant  to  his
supplementary disclosure. Similarly, accused Pawan Kumar got recovered  from
his jhuggi his bloodstained clothes, shoes  and  also  a  wrist  watch  make
Sonata and Rs. 1000/- robbed from PW-1.

22.    On  21.12.2012,  accused  Akshay  was  also  arrested  from   Village
Karmalahang, PS Tandwa, Aurangabad,  Bihar.  His  disclosure  statement  was
recorded.  He led to his  brother’s  house  in  village  Naharpur,  Gurgaon,
Haryana and got recovered his bloodstained clothes.  A ring belonging to PW-
1, two metro cards and a Nokia phone with SIM of Vodafone Company  was  also
recovered from Akshay. Akshay also opted to undergo TIP and  was  positively
identified by PW-1.  The mobile phones of the accused  persons  were  seized
and call details records with requisite certificates under Section  65-B  of
Indian Evidence Act were obtained by the police.

23.   After getting arrested, all the accused were medically examined.   The
MLCs of all the accused persons  show  various  injuries  on  their  person;
viz., in the MLC, Ex.PW-2/A, of accused Ram Singh, PW-2, Dr.  Akhilesh  Raj,
has opined that the injuries mentioned at point Q to P-1 could  possibly  be
struggle marks.  Similar opinions were received in respect of other  accused
persons.  PW-7, Dr. Shashank Pooniya, has opined that the  injuries  present
on the body of accused Akshay  were  a  week  old  and  were  suggestive  of
struggle as per MLC, Ex.PW-7/A. MLC, Ex.PW-7/B, pertaining to accused  Pawan
shows that he had suffered  injuries  on  his  body  which  were  simple  in
nature.  The MLC, Ex.PW-7/C, of accused Vinay  Sharma  proved  that  he  too
suffered injuries, simple in nature, 2 to 3 days old, though  injury  No.  8
was claimed to be self inflicted by the accused himself.

Further treatment of the victim and filing of chargesheet

24.   While  the  arrest  took  place,  as  indicated  earlier,  the  victim
underwent  second  and  third  surgeries  on   19.12.2012   and   23.12.2012
respectively. The  second  surgery  was  performed  on  the  prosecutrix  on
19.12.2012 by PW-50,        Dr. Raj Kumar Chejara, along with his  operating
team consisting of Prof. Sunil Kumar, Dr.  Pintu  and                    Dr.
Siddharth. Dr. Aruna Batra and Dr. Rekha Bharti were present along with  the
anaesthetic team. The clinical notes, Ex.PW-50/C, and notes prepared by  the
Gynaecology team, Ex.PW-50/D,  can  be  referred  to  in  this  regard.  The
prosecutrix  was  re-operated  on  23.12.2012  for  peritoneal  lavage   and
placement of drain under general anaesthesia and the notes are exhibited  as

25.   As the  condition  of  the  prosecutrix  did  not  improve  much,  the
prosecution  thought  it  appropriate  to  record  the  statements  of   the
prosecutrix. The said statements have been conferred  the  status  of  dying
declaration. As is noticeable from the evidence,  PW-49  also  deposed  that
certain exhibits were collected  for  examination  such  as  outer  clothes,
i.e., sweater, sheet covering  the  patient;  inner  clothes,  i.e.,  Sameej
torned; dust; grass present in  hairs,  dust  in  clothes;  debris  from  in
between fingers; debris from nails; nail clippings; nail  scrapings;  breast
swab; body fluid collection (swab  from  saliva);  combing  of  pubic  hair;
matted pubic hair,  clipping  of  pubic  hair;  cervical  mucus  collection;
vaginal secretions; vaginal culture;  washing  from  vaginal;  rectal  swab;
oral swab; urine and oxalate blood vial; blood samples, etc.

26.   On 21.12.2012, on being declared fit,  the  second  dying  declaration
was recorded by PW-27,  Smt.  Usha  Chaturvedi,  Sub-Divisional  Magistrate.
This dying declaration  is  an  elaborate  one  where  the  prosecutrix  has
described the incident in detail including the  insertion  of  rods  in  her
private parts. She also stated that the accused were addressing  each  other
with names like, “Ram Singh, Thakur, Raju, Mukesh, Pawan and Vinay”.

27.   On 25th December,  2012,  at  1:00  p.m.,  PW-30,  Shri  Pawan  Kumar,
Metropolitan  Magistrate,  went  to  the  hospital  to  record   the   dying
declaration of the  prosecutrix.  The  attending  doctors  opined  that  the
prosecutrix was not in a position to speak but she was  otherwise  conscious
and responded by way of gestures. Accordingly, PW-30 put questions  in  such
a manner as to enable her to narrate the incident  by  way  of  gestures  or
writing.  Her statement,                Ex.PW-30/D, was  recorded  by  PW-30
in the form of dying declaration   by putting her questions  in  the  nature
of multiple choice  questions.  The  prosecutrix  gave  her  statement/dying
declaration through gestures and writings, Exhibit PW-30/D, the contents  of
which will be discussed later.

28.    At  this  juncture,  the  cure  looked  quite  distant.   The  health
condition  was  examined  on  26th  December  2012  by  a  team  of  doctors
comprising of Dr. Sandeep Bansal, Cardiologist, Dr. Raj Kumar  Chejara,  Dr.
Sunil Kumar, Dr. Arun Batra and Dr. P.K. Verma and since  the  condition  of
the prosecutrix was critical, it was decided that she be shifted abroad  for
further treatment and fostering oasis of hope on 27th  December,  2012,  she
was  shifted  to  Mt.  Elizabeth  Hospital,  Singapore,  for   her   further
treatment.   The  hope  and  expiration  became  a  visible  mirage  as  the
prosecutrix  died  on  29th  December,  2012  at  Mt.  Elizabeth   Hospital,
Singapore. Dr. Paul  Chui,  PW-34,  Forensic  Pathologist,  Health  Sciences
Authority, Singapore, deposed that her exact time of death was 4:45 a.m.  on
29th December, 2012. The death occurred at Mt. Elizabeth  Hospital  and  the
cause of  her  death  was  sepsis  with  multiple  organ  failure  following
multiple injuries. The original post mortem report is Ex.  PW-34/A  and  its
scanned copy is Ex.PW-34/B; the Toxicology Report dated  4th  January,  2013
is Exhibit PW-34/C. In the post-mortem  report,  Ex.PW-34/A,  besides  other
serious injuries, various bite marks have been observed on her  face,  lips,
jaw, rear ear, on the right and left breasts, left upper  arm,  right  lower
limb, right upper  inner  thigh  (groin),  right  lower  thigh,  left  thigh
lateral and left leg lower anterior.

29.   It is apt to  note  here  that  during  the  course  of  investigation
(keeping in mind that the vehicle was identified), the investigating  agency
went around to collect the electronic evidence. A CCTV footage  produced  by
PW-25, Rajender Singh Bisht, in a CD, Ex.PW-25/C-1 and  PW-25/C-2,  and  the
photographs, Ex.PW-25/B-1 to Ex.PW-25/B-7, were  collected  from  the  Mall,
Select  City  Walk,  Saket  to  ascertain  the  presence  of  PW-1  and  the
prosecutrix at the Mall. The certificate under Section 65-B  of  the  Indian
Evidence Act, 1872 (for short, “Evidence Act”)  with  respect  to  the  said
footage is proved by PW-26, Shri Sandeep  Singh,  vide  Ex.PW-26/A.  Another
important evidence is the CCTV footage of Hotel Delhi 37 situated  near  the
dumping spot. The said footage showed a bus matching the  description  given
by the informant at 9:34 p.m. and again at 9:53 p.m. The said  bus  had  the
word “Yadav” written on one side.  Its exterior was of white  colour  having
yellow and green stripes and its front tyre on the left side did not have  a
wheel cap. The description of the bus  was  affirmed  by  PW-1’s  statement.
The CCTV footage stored in the pen drive, Ex.P-67/1, and the CD,  Ex.P-67/2,
were seized by the I.O. vide seizure  memo  Ex.PW-67/A  from  PW-67,  Pramod
Kumar Jha, the owner of Hotel Delhi 37. The same were identified  by  PW-67,
Pramod Jha, PW-74, SI Subhash, and  PW-76,  Gautam  Roy,  from  CFSL  during
their  examination  in  Court.  PW-78,  SHO,  Inspector  Anil  Sharma,   had
testified that the said CCTV footage seized  vide  seizure  memo  Ex.PW-67/A
was sent to the CFSL through S.I. Sushil  Sawaria  and  PW-77,  the  MHC(M).
Thereafter, on 01.01.2013, the report of the CFSL was received.

30.   As the prosecution story would  further  undrape,  in  the  course  of
investigation, the test identification parade was carried  out.    We  shall
advert to the same at a later stage.

31.    We had indicated in the beginning that  the  investigating  team  had
taken  aid  of  modern  methods  to  strengthen  its  case.    The   process
undertaken, the method adopted and the results are  severely  criticized  by
the learned counsel for the appellants to which we shall later on revert  to
but presently  to  the  steps  taken  by  the  investigating  agency  during
investigation.  With the intention to  cover  the  case  from  all  possible
spheres and to establish the allegations with the proof of conclusivity  and
not to give any chance of doubt, the prosecution thought  that  it  was  its
primary duty to ascertain the identity of the accused persons; and  for  the
said purpose, it carried out DNA analysis  and  fingerprint  and  bite  mark

Collection of samples and identity of accused persons

32.   The blood sample of the informant was collected by Dr. Kamran  Faisal,
PW-15, Safdarjung  Hospital,  on  25.12.2012  and  was  handed  over  to  SI
Pratibha Sharma, PW-80, vide seizure memo  Ex.PW-15/A  by  Constable  Suresh
Kumar, PW-42. Similarly, as mentioned earlier, PW-49, Dr. Rashmi Ahuja,  had
collected certain samples from the  person  of  the  prosecutrix  which  are
reflected in Ex.PW-49/A from point B to B.  All the samples  were  collected
by Inspector Raj Kumari,  PW-59,  vide  seizure  memo  Ex.PW-59/A  and  were
handed over to PW-80, SI Pratibha Sharma,  at  Safdarjung  Hospital  in  the
morning of  17.12.2012.  Also  the  samples  of  gangrenous  bowels  of  the
prosecutrix were taken on 24.12.2012 and were handed  over  to  SI  Gajender
Singh, PW-55, who seized the same vide  seizure  memo  Ex.PW-11/A.  All  the
samples were deposited with the MHC(M) and were not  tampered  with  in  any
manner. A specimen of scalp hair  of  the  prosecutrix  was  also  taken  on
24.12.2012 by Dr. Ranju Gandhi, PW-29, and was handed over  to  PW-  80,  SI
Pratibha Sharma, vide seizure memo Ex.PW-29/A.

33.   The accused were also subjected to  medical  examination  and  samples
were taken from their person which were sent for DNA analysis.

34.   DNA analysis was done at the behest of PW-45, Dr. B.K. Mohapatra,  Sr.
Scientific Officer, Biology, CFSL, CBI, and Biological Examination  and  DNA
profiling reports were prepared which are exhibited as  Ex.  PW-45/A-C.  The
report, after analysing the DNA profiles generated from  the  known  samples
of the prosecutrix, the informant, and each of the accused, concluded that:
“An analysis of  the  above  shows  that  the  samples  were  authentic  and
established the identities of the persons mentioned above beyond  reasonable

35.   On 17.12.2012 and 18.12.2012, a team of experts from the CFSL went  to
Thyagraj Stadium and lifted chance prints from the bus in question,  Ex.P-1.
On 28.12.2012, PW-78, Inspector Anil Sharma of P.S. Vasant Vihar,  the  then
S.H.O. of Police Station Vasant Vihar, requested  the  Director,  CFSL,  for
taking digital palm prints and foot prints of all the accused  persons  vide
his  letter  Ex.PW-46/C.  Pursuant  to  the  said  request  made  by  PW-78,
Inspector Anil Sharma, the CFSL, on 31.12.2012, took the finger/palm  prints
and foot prints of the accused persons at Tihar Jail.  After  comparing  the
chance prints lifted from the bus with the  finger  prints/palm  prints  and
foot prints of all the  accused  persons,  PW-46,  Shri  A.D.  Shah,  Senior
Scientific Officer (Finger Prints), CFSL, CBI submitted  his  report  Ex.PW-
46/D. In the report, the chance prints of accused Vinay  Sharma  were  found
to have matched with those on the bus in question.

36.   Bite mark analysis was also undertaken by the  investigative  team  to
establish the identity  and  involvement  of  the  accused  persons.  PW-66,
Asghar Hussain, on the instructions of the I.O., S.I. Pratibha  Sharma,  had
taken 10 photographs of different parts of the body of  the  prosecutrix  at
SJ Hospital on 20.12.2012 between 4:30 p.m. and 5:00 p.m. which were  marked
as Ex.PW-66/B (Colly.) [10 photographs of  5”  x  7”  each]  and  Ex.PW-66/C
(Colly.) [10 photographs of 8” x 12” each]. PW-66 also proved in  Court  the
certificate provided by him in terms of Section 65-B of the Evidence Act  in
respect of the  photographs,  Ex.  PW-66/A.  Thereafter,  PW-18,  SI  Vishal
Choudhary, collected the photographs and the dental models  from  Safdarjung
Hospital on 01.01.2013 and duly deposited the same  in  the  malkhana  after
he, PW-18, had handed them over to the S.H.O. Anil Sharma, PW-78.  The  same
were later entrusted to S.I. Vishal Choudhary, PW-18  on  02.01.2013,  which
is proved vide RC No.183/21/12  and  exhibited  as  Ex.PW-77/V.  PW-71,  Dr.
Ashith B. Acharya, submitted the  final  report  in  this  regard  which  is
exhibited as Ex. PW-71/C. In the said  report,  he  has  concluded  that  at
least three bite marks were caused by accused Ram  Singh  whereas  one  bite
mark has been identified to have been most likely caused by accused  Akshay.

37.   It is seemly to note here that on  completion  of  the  investigation,
the  chargesheet  came   to   be   filed   on   03.01.2013   under   Section
365/376(2)(g)/377/307/395/ 397/302/396/412/201/120/34 IPC and  supplementary
chargesheet was filed on 04.02.2013.

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

38.   After the case was committed to the Court of Session, all the  accused
were charged for the following offences:

1.    u/s 120-B IPC;

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

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

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

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

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

7.    u/s. 412 IPC.

      During the course of trial, accused Ram Singh  committed  suicide  and
the proceedings qua him stood abated vide order dated 12.10.2013.

39.   It is worthy to mention here that in order to bring home  the  charge,
the  prosecution  initially  examined  82  witnesses  and  thereafter,   the
statements of the accused persons  were  recorded  and  they  abjured  their
guilt.  Accused  Pawan Gupta @ Kaalu examined Lal Chand,        DW-1,  Heera
Lal, DW-2, Ram Charan, DW-3, Gyan Chand, DW-4, and Hari Kishan  Sharma,  DW-
16, in support of his plea. Accused Vinay Sharma examined Smt. Champa  Devi,
DW-5, Hari Ram Sharma, DW-6, Kishore Kumar Bhat,       DW-7, Sri  Kant,  DW-
8, Manu Sharma, DW-9, Ram Babu, DW-10, and Dinesh, DW-17, to  establish  his
stand. Accused Akshay Kumar Singh @ Thakur  examined  Chavinder,         DW-
11, Sarju Singh, DW-12, Raj Mohan Singh,  DW-13,  Punita  Devi,  DW-14,  and
Sarita Devi, DW-15.  As the factual matrix would reveal, subsequently  three
more prosecution witnesses were examined and on behalf of the  defence,  two
witnesses were examined.

40.   Learned Sessions Judge, vide judgment dated 10.09.2013, convicted  all
the accused persons, namely, Akshay Kumar  Singh  @  Thakur,  Vinay  Sharma,
Mukesh and Pawan Gupta @ Kaalu under Section 120B IPC  for  the  offence  of
criminal conspiracy; under Section 365/366 IPC read with Section  120B   IPC
for abducting the victims with an intention  to  force  the  prosecutrix  to
illicit intercourse; under Section 307 IPC read with Section  120B  IPC  for
attempting to kill PW-1, the informant;  under  Section  376(2)(g)  IPC  for
committing gang rape with the prosecutrix in pursuance of their  conspiracy;
under Section 377 IPC read with Section 120B IPC  for  committing  unnatural
offence with the prosecutrix; under Section 302 IPC read with  Section  120B
IPC for committing murder of the helpless  prosecutrix;  under  Section  395
IPC  for  conjointly  committing  dacoity  in  pursuance  of  the  aforesaid
conspiracy; under Section 397 IPC read with Section 120B IPC for the use  of
iron rods and for  attempting  to  kill  PW-1  at  the  time  of  committing
robbery; under Section 201 IPC read with Section 120B IPC for destroying  of
evidence and under Section 412 IPC for the  offence  of  being  individually
found in possession of the stolen property which they all knew was a  stolen
booty of dacoity committed by them.

41.   After recording the conviction, as aforesaid, the learned trial  Judge
imposed the sentence, which we reproduce:

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

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

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

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

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

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

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

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

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

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

42.   Be it noted, the learned trial  Judge  directed  the  sentences  under
Sections   120B/365/366/376(2)(g)/   377/201/395/397/412    IPC    to    run
concurrently and that the benefit under Section  428  CrPC  would  be  given
wherever applicable. He further recommended  that  appropriate  compensation
under Section 357A CrPC be awarded to the legal  heirs  of  the  prosecutrix
and, accordingly, sent a copy of the order to  the  Secretary,  Delhi  Legal
Services Authority, New Delhi, for deciding the quantum of  compensation  to
be awarded under the scheme referred to in sub-section (1) of  Section  357A
CrPC. That apart, as death penalty was imposed, he referred  the  matter  to
the High Court for confirmation under Section 366 CrPC.

The view of the High court

43.    The  High  Court,  vide  judgment  dated  13.03.2014,  affirmed   the
conviction and confirmed the death  penalty  imposed  upon  the  accused  by
expressing the opinion that under the facts and circumstances of  the  case,
imposition of death penalty awarded  by  the  trial  court  deserved  to  be
confirmed in respect of all the four convicts.  As  the  death  penalty  was
confirmed, the  appeals  preferred  by  the  accused  faced  the  inevitable
result, that is, dismissal.

Commencement of hearing and delineation of contentions

44.   As we had stated earlier, the grievance relating  to  the  lodging  of
FIR and the manner in which  it  has  been  registered  has  been  seriously
commented upon and criticized by the learned  counsel  for  the  appellants.
Mr. Sharma, learned counsel for the appellants  -  Mukesh  and  Pawan  Kumar
Gupta, and Mr. Singh, learned counsel for the appellants – Vinay Sharma  and
Akshay Kumar Singh, have stressed with all the conviction at  their  command
that when a matter of confirmation of death penalty is assailed before  this
Court, it is the duty of this Court to see every aspect in  detail  and  not
to treat it as an ordinary appeal.

45.    As  the  argument  commenced  with  the  said  note,  we  thought  it
appropriate to grant liberty to the learned counsel for  the  appellants  to
challenge the conviction and the  imposition  of  death  sentence  from  all
aspects  and  counts  and  to  dissect  the   evidence   and   project   the
irregularities  in  arrest  and  investigation.   Learned  counsel  for  the
parties argued the matter for considerable length  of  time  and  hence,  we
shall deal with every aspect in detail.

Delayed registration of FIR

46.   The attack commences with the registration of FIR and,  therefore,  we
shall delve into the same in detail.   PW-57,  ASI  Kapil  Singh,  the  Duty
Officer at P.S. Vasant  Vihar,  New  Delhi,  on  the  intervening  night  of
16/17.12.2012, received  information about the incident. He lodged DD  No.6-
A, Ex.PW-57/A, and passed on the said DD to PW-74,  SI  Subhash  Chand,  who
was on  emergency  duty  that  night  at  P.S.  Vasant  Vihar.   Immediately
thereafter, PW-57, ASI Kapil Singh, received  yet  another  information  qua
admission of the prosecutrix and of the  informant  in  Safdarjung  Hospital
and he lodged DD No.7-A, Ex.PW-57/B, and also passed on the said  DD  to  SI
Subhash Chand.

47.   PW-74, SI Subhash Chand, then left for Safdarjung  Hospital  where  he
met PW-59, Inspector Raj Kumari, and  PW-62,  SI  Mahesh  Bhargava.   PW-59,
Inspector  Raj  Kumari,  handed  over  to  him  the  MLC  and  the  exhibits
concerning the prosecutrix as given to her by the treating  doctor  and  PW-
62, SI Mahesh Bhargava, handed over to him the MLC of the informant.  PW-74,
SI Subhash Chand, then recorded the statement, Ex.PW-1/A, of  the  informant
at 1:30 a.m. on 17.12.2012 and made his endorsement, Ex.PW-74/A, on  it  and
he gave the rukka to PW-65, Ct.  Kripal  Singh,  for  being  taken  to  P.S.
Vasant Vihar, New Delhi and to get the FIR  registered.  PW-65,  Ct.  Kripal
Singh, then went to P.S. Vasant Vihar, New Delhi and at 5:40 a.m.  and  gave
the rukka to PW-57, ASI  Kapil  Singh,  the  Duty  Officer,  who,  in  turn,
recorded the FIR, Ex.PW-57/D, made endorsement,  Ex.PW-57/E,  on  the  rukka
and returned it to PW-65,           Ct. Kripal Singh, who then handed it  to
PW-80, SI Pratibha Sharma, at P.S. Vasant Vihar to  whom  the  investigation
was entrusted.

48.   SI Subhash Chand, PW-74, deposed that the statement of  the  informant
might have been recorded around 3:45 a.m. although  PW-1  deposed  that  his
statement was recorded at 5:30 a.m.  It  was  submitted  that  the  original
statement was recorded by HC  Ram  Chander,  PW-73,  and  the  investigation
process had already begun around 1:15 a.m. and  the  subsequent  information
from the informant which is stated to  be  the  first  information  was,  in
fact, crafted after the investigating agency decided on a course of  action.
 It is submitted by the learned counsel for the appellants  that  the  delay
in the FIR raises serious doubts.

49.   Delay in setting the law into motion by lodging of complaint in  court
or FIR at police  station  is  normally  viewed  by  courts  with  suspicion
because there is possibility of concoction of evidence against  an  accused.
Therefore, it  becomes  necessary  for  the  prosecution  to  satisfactorily
explain the delay.  Whether the delay is so long as  to  throw  a  cloud  of
suspicion on the case of the prosecution would  depend  upon  a  variety  of
factors.   Even a long delay can be condoned if the informant has no  motive
for implicating the accused.

50.   In the present case, after the occurrence, the  prosecutrix  and  PW-1
were admitted to the hospital at 11:05 p.m.; the victim was admitted in  the
Gynaecology Ward and PW-1, the informant, in the casualty  ward.  PW-74,  SI
Subhash Chand, recorded the statement of PW-1 at 3:45 a.m.  After  PW-1  and
the prosecutrix were taken to the hospital for treatment, the  statement  of
PW-1 was recorded by PW-74, SI Subhash Chand, at 1:37 a.m. and the same  was
handed over to PW- 65, Constable Kripal Singh, to  PW-57,  Kapil  Singh.  In
the initial stages, the intention of all concerned must have  been  to  save
the victim by giving her proper medical treatment.  Even  assuming  for  the
sake of argument that there  is  delay,  the  same  is  in  consonance  with
natural human conduct.

51.   In this case, there is no delay  in  the  registration  of  FIR.   The
sequence  of  events  are  natural  and  in  the  present  case,  after  the
occurrence, the victim and PW-1 were thrown out of the bus at Mahipalpur  in
semi-naked condition and were rescued by PW-72, Raj Kumar,  and  PW-70,  Ram
Pal, both EGIS Infra Management India (P) Limited employees. The victim  was
seriously injured and was in a critical condition and it has to  be  treated
as a natural conduct that giving medical  treatment  to  her  was  of  prime
importance.  The admission of PW-1 and the victim in the  hospital  and  the
completion of procedure  must  have  taken  some  time.   PW-1  himself  was
injured and was admitted to the hospital at 11:05 p.m. No delay can be  said
to have been caused in examining PW-1, the informant.

52.   In the context of belated  FIR,  we  may  usefully  refer  to  certain
authorities in the field.  In Ram Jag and others v. State of  U.P.[1]  ,  it
was held as that witnesses cannot be called upon  to  explain  every  hour’s
delay and a commonsense view has to be taken  in  ascertaining  whether  the
first information report was lodged after an undue delay  so  as  to  afford
enough scope for manipulating evidence. Whether the delay is so long  as  to
throw a cloud of suspicion on the seeds of the prosecution case must  depend
upon a variety of factors which would vary from case to case.  Even  a  long
delay in filing report of an occurrence can be condoned if the witnesses  on
whose evidence the prosecution relies have no  motive  for  implicating  the
accused. On  the  other  hand,  prompt  filing  of  the  report  is  not  an
unmistakable  guarantee  of  the  truthfulness  of  the   version   of   the

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 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

Non-mentioning of assailants in the FIR

54.   An argument was advanced assailing the FIR to the effect that the  FIR
does not contain: (i) the names of the assailants either in the MLC,  Ex.PW-
51/A, or in the complaint, Ex.PW-1/A, (ii) the description of  the  bus  and
(iii) the use of iron rods.

55.   As far as the argument that the FIR does not contain the names of  all
the accused persons is concerned, it has to be  kept  in  mind  that  it  is
settled law that FIR is not an 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,  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 Singh[6].
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
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 Rajasthan[8]  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 Prosecutor[10], the Court held as under:
“13. …  While  considering  the  effect  of  some  omissions  in  the  first
information report on the part of the informant,  a  court  cannot  fail  to
take into consideration the probable physical and mental  condition  of  the
first informant. One of the important  factors  which  may  weigh  with  the
court is as to whether there was a possibility of false implication  of  the
appellants. Only with a view to test the veracity of the correctness of  the
contents of the report, the court applies certain well-known  principles  of

      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

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

61.   In his statement recorded in  the  early  hours  of  17.12.2012,  PW-1
stated about going to  the  Select  City  Walk  Mall,  Saket  alongwith  the
prosecutrix and boarding the bus. He has also stated about the  presence  of
four persons sitting in the cabin of the bus and  two  boys  sitting  behind
the cabin and clearly stated about the  overt  act.   He  has  broadly  made
reference to the accused persons and also to the overt acts.  There  are  no
indications of fabrication in Ex.PW-1/A.

62.   The victim and PW-1 were thrown out of the bus  and  after  some  time
they were admitted to the hospital.  Both the injuries on PW-1’s person  and
the gruesome acts against the victim  must  have  put  him  in  a  traumatic
condition and it would not have been possible for him to recall and  narrate
the entire incident to the police at one instance.  It cannot be  said  that
merely because the names of the accused persons are  not  mentioned  in  the
FIR, it raises serious doubts about the prosecution case.

Appreciation of the evidence of PW-1

63.   Having dealt with the contention of delay in lodging of  the  FIR  and
omission of names in the FIR on the basis of the first  statement  of  PW-1,
we may now proceed to appreciate the evidentiary value  to  be  attached  to
the testimony of PW-1 and the contentions advanced in this regard.
64.   As per the evidence of PW-1, he  alongwith  the  prosecutrix,  on  the
fateful day about 3:30 p.m., took an auto from Dwarka, New Delhi  to  Select
City Walk Mall, Saket, New Delhi, where they  watched  a  movie  till  about
8:30 p.m. and, thereafter, left the Mall. As they could not get an auto  for
Dwarka, they hired an auto for Munirka intending to take a  bus  (route  No.
764) thereon. About 9:00 p.m. when  they  reached  Munirka  bus  stand  they
boarded a white colour chartered bus and JCL was calling  for  commuters  to
Dwarka/Palam Mod.  While boarding the bus,  PW-1  noted  that  the  bus  had
“Yadav” written on its side; had yellow and green lines/stripes;  the  entry
gate was ahead of its front left tyre; and its  front  tyre  was  without  a
wheel cover. After boarding, he saw that  besides  the  boy  (JCL)  who  was
calling for passengers and the driver, two other  persons  were  sitting  in
the driver’s cabin and two persons were seated  inside  the  bus  on  either
side of the aisle. After the bus left the  Munirka  bus  stand,  the  lights
inside the bus were turned off.  Then  accused  Ram  Singh,  accused  Akshay
Thakur and the JCL (all  three  identified  later)  came  towards  PW-1  and
verbally and physically assaulted him.  When  PW-1  resisted  them,  accused
Vinay and accused Pawan were  called  along  with  iron  rods  and  all  the
accused  persons  started  hitting  PW-1  with  the  iron  rods.  When   the
prosecutrix attempted to call  for  help,  PW-1  and  the  prosecutrix  were
robbed of their possessions.

65.   PW-1 was immobilized by accused Vinay and accused Pawan  Kumar;  while
others, viz., accused Ram Singh, Akshay and the JCL took the prosecutrix  to
the rear side of the bus whereafter PW-1 heard  the  prosecutrix  shout  out
“chod do, bachao” and her cry. After the above, three accused committed  the
heinous act of raping the prosecutrix, accused Vinay and Pawan then went  to
the  rear  side  of  the  bus  while  the  other  three  pinned  down  PW-1.
Thereafter, accused Mukesh (originally driving the bus) hit  PW-1  with  the
rod and went to the rear side of  the  bus.  PW-1  also  heard  one  of  the
accused saying “mar gayee, mar gayee”. After  the  incident,  PW-1  and  the
prosecutrix were dragged to the  front  door  (because  the  rear  door  was
jammed) and were pushed out of the  moving  bus  opposite  Hotel  Delhi  37.
After being thrown outside, the bus was turned in such a manner as to  crush
both of them but PW-1 pulled the prosecutrix and himself out  of  the  reach
of the wheels of the bus and saved their lives.

66.   The statement of the informant, PW-1, was recorded  by  PW-74  in  the
early hours of 17.12.12 and  Ex.PW-1/A  is  the  complaint.   In  his  chief
examination, PW-74 deposes that he had given the complaint  (rukka)  to  Ct.
Kripal Singh and sent him to the police station at 5:10 a.m.  which  thereby
leaves the time of recording the informant’s statement  inconclusive.   Even
if the version of PW-74 was to be relied upon and the informant’s  statement
had been recorded by 5:10 a.m., DD  entry  which  forms  Ex.PW-57/C  records
that till 5:30 a.m.,  no  punishable  offence  has  been  reported  to  have
occurred and information of well-being had been recorded  despite  the  fact
that previous DD entries had  been  recorded  on  the  basis  of  telephonic
conversations between police officers at the hospital, the  scene  of  crime
and the control room (both DD entries 6A and 7A had  been  recorded  on  the
basis  of  phone  conversations).  The  first  supplementary  statement  was
recorded around 7:30 a.m., on 17.12.2012 specifically with  respect  to  the
bus in question. In this  statement,  Ex.  PW-80/D1,  PW-1  merely  gives  a
generic description of the bus.  However,  unlike  in  Ex.  PW-1/A,  in  his
supplementary statement, the informant states that  the  bus  was  white  in
colour with stripes of yellow and green, that there were 3  x  2  seats  and
that if he remembered anything else, he would  reveal  the  same.   At  this
time, the investigating agency had neither seized the bus nor  arrested  the
accused; the statement of the informant is, therefore,  silent  on  specific
details about the same. PW’s second  supplementary  statement,  Ex.PW-80/D3,
was recorded around noon on 17.12.2012  in  which  the  informant,  for  the
first time since the time of the incident, revealed details  about  the  bus
in which the crime allegedly occurred  (that  there  was  the  word  “Yadav”
written on the side, that the front  wheel  cover  was  missing),  and  also
revealed  the  names  of  the  accused   (Ram   Singh,   one   Thakur,   one
Mukesh/Ramesh, Vinay and Pawan).

67.   The learned amicus curiae, Mr.  Hegde, submitted that at every  stage,
PW-1 made improvement in his statements.  It was submitted  that  when  PW-1
was confronted with the omissions Ex.PW-1/A, Ex.PW-8/D1  and  Ex.  PW-80/D3,
he stated that he was unable to  talk  at  the  time  of  recording  of  his
statement due to injury to the tongue.  It was submitted that as per  Ex.PW-
51/A, he sustained only simple injury  and  it  does  not  state  that  PW-1
suffered injury to his tongue.  It was further contended  that  the  process
of improving and embellishing the informant’s statement  did  not  end  with
recording  his  statement  under  Section  161  CrPC.  On  19.12.2012,   the
informant made a statement under Section 164 CrPC  before  the  Metropolitan
Magistrate, Saket Courts.  This statement  is  the  most  comprehensive  and
contains details which had been discovered by the prosecution by  then  such
as the names of all the accused (including the  name  of  the  JCL  for  the
first time) and details from  inside  the  bus  (colour  of  the  seats  and
curtains).  It was contended that the improved version of PW-1  renders  his
evidence unreliable and  merely  because  he  is  an  injured  witness,  his
evidence cannot be accepted.

68. It is urged by Mr. Hegde, learned amicus  curiae,  that  inconsistencies
and omissions amounting to contradiction in the testimony of PW-1  make  him
an untrustworthy and unreliable witness.  The  inconsistencies  pointed  out
by the learned amicus curiae  pertain  to  the  number  of  assailants,  the
description of the bus and the identity of  the  accused.   As  regards  the
omission, it is contended by him that the said  witness  had  not  mentioned
about the alleged use of rod in the FIR.   He  has  further  submitted  that
though he has stated that he had been assaulted by the iron rods as per  his
subsequent statement, yet the said statement is  wholly  unacceptable  since
he had sustained only simple injuries.
69.    Mr.  Hegde,  in  his   further   criticism   of   the   evidence   of
PW-1, has put  forth  that  the  effort  of  the  prosecution  had  been  to
highlight the  consistencies  instead  of  explaining  the  inconsistencies.
That apart, submits Mr. Hegde, that the witness has revealed the story  step
by step including the gradual recognition of the identity of the accused  in
tandem with  the process of investigation  and  in  such  a  situation,  his
testimony has to be looked with suspicion.
70.   Mr. Sharma, learned counsel for the  appellants  -  Mukesh  and  Pawan
Kumar Gupta, and Mr. Singh, learned  counsel  for  the  appellants  –  Vinay
Sharma and Akshay Kumar Singh, submit that the omissions  in  the  statement
of  PW-1  amount  to  contradictions  in  material  particulars   and   such
contradictions go to the root of the case and, in  fact,  materially  affect
the trial or the very case of the prosecution. Therefore, they  submit  that
the testimony of PW-1, who is treated as a star witness,  is  liable  to  be
discredited.   Reliance  has  been  placed  on  the  authorities  in   State
Represented by Inspector of Police v. Saravanan & another[11],  Arumugam  v.
State Represented by Inspector of Police, Tamil Nadu [12],  Mahendra  Pratap
Singh v. State of Uttar Pradesh[13] and Sunil Kumar Sambhudayal Gupta  (Dr.)
and others v. State of Maharashtra[14].
71.   The authorities that have been commended by                        Mr.
Sharma need to be appositely understood.  In  Arumugam  (supra),  the  Court
was dealing with the issue  of  acceptance  of  the  version  of  interested
witnesses.  It has referred to Dalip Singh v. State of Punjab[15], State  of
Punjab v. Jagir Singh, Baljit Singh and Karam Singh[16], Lehna v.  State  of
Haryana[17], Gangadhar Behera and others v. State of  Orissa[18]  and  State
of  Rajasthan  v.  Kalki  and  another[19]  and  opined  that  while  normal
discrepancies do not corrode the credibility of  a  party’s  case,  material
discrepancies do so.

72.   In Saravanan (supra), reiterating the principle, the Court held:
“18. ….  it  has  been  said  time  and  again  by  this  Court  that  while
appreciating the evidence of  a  witness,  minor  discrepancies  on  trivial
matters without affecting the core of the prosecution  case,  ought  not  to
prompt the court to  reject  evidence  in  its  entirety.  Further,  on  the
general tenor of the evidence given by the witness,  the  trial  court  upon
appreciation of evidence forms an opinion about the credibility thereof,  in
the normal circumstances the appellate  court  would  not  be  justified  to
review it once again without justifiable reasons. It is the totality of  the
situation, which has to be taken note of. Difference in some  minor  detail,
which does not otherwise affect the core of the prosecution  case,  even  if
present, that itself would not prompt the court to reject  the  evidence  on
minor variations and discrepancies.”

73.   In Mahendra Pratap Singh (supra), the Court referred to the  authority
in Inder Singh and another v. State (Delhi  Administration)[20]  wherein  it
has been held thus:
“2. Credibility of testimony, oral and circumstantial, depends  considerably
on a judicial evaluation of the totality, not isolated  scrutiny.  While  it
is necessary that proof beyond reasonable doubt should  be  adduced  in  all
criminal cases, it is not necessary that it should be perfect.”

      In the circumstance of the case, the Court,  analyzing  the  evidence,
“62.  From  the  above  discussion  of  the  evidence  of  the  eyewitnesses
including  injured  witnesses,  their  evidence  does  not  at  all  inspire
confidence and their evidence is running in conflict and contradiction  with
the medical evidence and ballistic expert’s report in regard to  the  weapon
of offence, which was different from the one sealed in the  police  station.
The High Court has,  in  our  opinion,  disregarded  the  rule  of  judicial
prudence in converting the order of acquittal to conviction.”

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

31. Where the omission(s) amount to  a  contradiction,  creating  a  serious
doubt about the truthfulness of a witness and the other witness  also  makes
material improvements before  the  court  in  order  to  make  the  evidence
acceptable, it cannot be safe to rely upon such  evidence.  (Vide  State  of
Rajasthan v. Rajendra Singh[21].)

32. The discrepancies in the evidence of eyewitnesses, if found  to  be  not
minor in nature, may be a ground for  disbelieving  and  discrediting  their
evidence. In such circumstances, witnesses may not  inspire  confidence  and
if their evidence is found to be in conflict and  contradiction  with  other
evidence or with the statement already recorded, in such a  case  it  cannot
be held that the prosecution  proved  its  case  beyond  reasonable  doubt.”
(Vide Mahendra Pratap Singh v. State of U.P. )”

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

75.   Mr. Luthra, learned  senior  counsel  appearing  for  the  respondent-
State, on the other hand, has  disputed  the  stand  of  the  appellants  as
regards the discrepancies in the statement of PW-1. According  to  him,  the
evidence of PW-1 cannot be discarded on grounds which  are  quite  specious.
The circumstances in entirety are to be appreciated. He has placed  reliance
on the appreciation of the trial court and contended that  the  appreciation
and analysis are absolutely impeccable. The  relied  upon  paragraph  is  as
“The complainant PW1  in  his  deposition  had  corroborated  his  complaint
Ex.PW1/A; his statement Ex.PW80/D-1 recorded under section 161  Cr.P.C;  his
supplementary statement Ex.PW80/D-3  and  his  statement  Ex.PW1/B  recorded
under section 164 CrPC; qua his visit  to  Select  City  Mall,  Saket;  then
moving to Munirka  in  an  auto;  boarding  the  bus  Ex.P1;  the  incident;
throwing them out of the moving bus and attempt of accused  to  overrun  the
victims by their bus.

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

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

76.   The evidence of PW-1 is assailed contending that he is not a  reliable
witness. During the cross-examination, his evidence was assailed  contending
that Ex.PW-1/A is replete with contradictions and  inconsistencies.   Taking
us through  the  evidence,  Mr.  Singh  has  submitted  that  in  his  first
statement, Ex.PW-1/A, there were lot of  omissions  and  contradictions  and
the improvements in his subsequent statements  render  the  evidence  wholly
untrustworthy. The appellants, in an attempt to assail  the  credibility  of
the testimony  of  PW-1,  inter  alia,  raised  the  contentions:  (i)  Non-
disclosure of the use of iron rod and (ii) the names of  the  assailants  in
the MLC in Ex. PW-51/A or in Ex.PW-1/A. However, the trial court held  these
assertions as non-fatal to PW-1’s testimony:
“... It is not expected of a victim to disclose all  the  finer  aspects  of
the incident in the FIR or in the brief history  given  to  the  doctor;  as
doctor(s) are more concerned with treatment of  the  victims.  More  so  the
victim who suffers from an incident, obviously, is in a state of  shock  and
it is only when we move in his comfort  zone,  he  starts  recollecting  the
events one by one and thus to stop the victim from elaborating the facts  to
describe the finer details, if left out earlier, would be too much.”

77.   The  contentions  assailing  the  evidence  of  PW-1  does  not  merit
acceptance, for at the time when he  was  first  examined  his  friend  (the
prosecutrix)  was  critically  injured  and  he  was  in  a  shocked  mental
condition.  The evidence of a  witness  is  not  to  be  disbelieved  simply
because he is a partisan witness or related to the prosecution.   It  is  to
be weighed whether he was present or not  and  whether  he  is  telling  the
truth or not.

78.   The informant, PW-1, in his deposition, has clearly spoken  about  the
occurrence and also corroborated his complaint, Ex.PW-1/A. The  evidence  of
PW-1 is unimpeachable in character and the roving cross-examination has  not
eroded his credibility. It is  necessary  to  mention  here  that  PW-1  was
admitted in the casualty ward of Safdarjung Hospital. As he was injured,  he
was medically examined by Dr. Sachin Bajaj, PW-51, and as per the  evidence,
Ext.PW-51/A, the following injuries were found on his body:
(a)   1cm X1 cm size clean lacertated wound over the vertex of  scalp  (head
(b)   0.5 X 1 cm size clean lacerated wound over left upper leg;
(c)   1X 0.2 cm size abrasion over right knee.

79.   The injuries found on the person of PW-1 and the fact  that  PW-1  was
injured in the same occurrence lends assurance to his testimony that he  was
present at the time of the  occurrence  along  with  the  prosecutrix.   The
evidence of an injured witness is entitled  to  a  greater  weight  and  the
testimony of such  a  witness  is  considered  to  be  beyond  reproach  and
reliable. Firm, cogent and convincing ground  is  required  to  discard  the
evidence of an injured  witness.   It  is  to  be  kept  in  mind  that  the
evidentiary value of an injured witness carries great weight. In  Mano  Dutt
and another v. State of Uttar Pradesh[23], it was held as under:
“31. We may merely refer to Abdul Sayeed v. State  of  M.P.[24]  where  this
Court held as under:

“28. The question of the weight to be attached to the evidence of a  witness
that  was  himself  injured  in  the  course  of  the  occurrence  has  been
extensively discussed by this Court. Where a witness to the  occurrence  has
himself been injured in the incident, the testimony of  such  a  witness  is
generally considered to be very reliable, as he  is  a  witness  that  comes
with a built-in guarantee of his presence at the scene of the crime  and  is
unlikely to spare his actual assailant(s)  in  order  to  falsely  implicate
someone. ‘Convincing evidence is required to discredit an injured  witness.’
[Vide Ramlagan Singh v. State  of  Bihar[25],  Malkhan  Singh  v.  State  of
U.P.[26], Machhi Singh  v.  State  of  Punjab[27],   Appabhai  v.  State  of
Gujarat [28], Bonkya v. State of Maharashtra[29], Bhag  Singh  v.  State  of
Punjab[30],  Mohar  v.  State  of  U.P.[31],  Dinesh  Kumar  v.   State   of
Rajasthan[32], Vishnu v. State of Rajasthan[33], Annareddy  Sambasiva  Reddy
v. State of A.P.[34] and Balraje v. State of Maharashtra[35].]

29. While deciding this issue, a similar view was taken in Jarnail Singh  v.
State of Punjab[36] where this  Court  reiterated  the  special  evidentiary
status accorded to the testimony of an injured accused and  relying  on  its
earlier judgments held as under:

‘28. Darshan Singh (PW 4) was an injured witness. He had  been  examined  by
the doctor. His testimony could not be brushed aside lightly. He  had  given
full details of the incident  as  he  was  present  at  the  time  when  the
assailants reached the tubewell. In Shivalingappa Kallayanappa v.  State  of
Karnataka[37] 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[38] 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[39].  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.”

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

80.   As is manifest  from  the  evidence,  S.I.   Pratibha  Sharma,  PW-80,
recorded the First Supplementary Statement under Section  161  CrPC  of  the
informant, PW-1, Awninder  Pratap  Singh  about  7:30  a.m.  on  17.12.2012.
Thereafter, PW-1, the informant, took PW-80, S.I. Pratibha  Sharma,  to  the
spot from where he and the prosecutrix had boarded the bus.
81.   Apart from the injuries sustained, the presence  of  PW-1  is  further
confirmed by the DNA analysis of:
the bloodstained mulberry leaves and grass  that  were  collected  from  the
spot in Mahipalpur where they were thrown off the bus; (Ex.74/C )

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

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

82.   The trial court judgment was fortified by the decisions of this  Court
in Pudhu Raja and another v. State Represented by Inspector  of  Police[40],
Jaswant Singh v. State of Haryana[41] and Akhtar  and  others  v.  State  of
Uttaranchal[42]  on  the  law  of  material  omissions  and  contradictions.
Concurringly, the High Court too observed that the  defence  had  failed  to
demonstrate from the informant’s  testimony  such  discrepancies,  omissions
and improvements that would have  caused  the  High  Court  to  reject  such
testimony after testing it on the anvil of the law laid down by this Court:
“325. ...Their throbbing injuries and the  rigors  of  the  weather  coupled
with the state of their minds must have at that point of time brought  forth
their instinct of  survival  and  self  preservation.  The  desire  to  have
apprehended their assailants and to mete out just  desserts  to  them  could
not have been their priority. ...”

83.   In this context, we may fruitfully reproduce a passage from  State  of
U.P. v. M.K. Anthony[43]:
“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 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 Bihar[45], 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 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], 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 Singh[47], 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 on one  hand,  no  innocent  man  should  be
punished but on the other hand, to  see  no  person  committing  an  offence
should get  scot-free.  If  in  spite  of  such  effort,  suspicion  is  not
dissolved, it remains writ at large, benefit of doubt has to be credited  to
the accused. For this, one has to comprehend the totality of the  facts  and
the circumstances as spelled out through  the  evidence,  depending  on  the
facts of each case by testing the credibility of eyewitnesses including  the
medical evidence, of course, after excluding those  parts  of  the  evidence
which are vague and uncertain. There  is  no  mathematical  formula  through
which the  truthfulness  of  a  prosecution  or  a  defence  case  could  be
concretised. It would depend on the evidence  of  each  case  including  the
manner of deposition  and  his  demeans  (sic),  clarity,  corroboration  of
witnesses and overall, the conscience of a judge evoked by the  evidence  on
record. So courts have to proceed further and make  genuine  efforts  within
the judicial sphere to search out the truth and not stop  at  the  threshold
of creation of doubt to confer benefit of doubt.”

90.   Keeping the aforesaid aspects in view, we shall now  proceed  to  test
the submission of the learned counsel for the  appellants  and  the  learned
amicus  curiae  on  the  issue  whether  the  testimony  of  PW-1   deserves
acceptance being reliable or not.  It is no doubt true that in  the  earlier
statement of PW-1, that is, Ex.PW-1/A, there are certain omissions; but  the
main thing to be seen is whether the omissions go to the root of the  matter
or pertain to insignificant aspects. The evidence  of  PW-1  is  not  to  be
disbelieved simply because there were certain omissions.   The  trial  Court
as well as the High Court found his evidence credible  and  trustworthy  and
we find no reason to take a different view.

91.   The case of the prosecution is attacked  contending  that  PW-1  is  a
planted witness  and  that  he  keeps  on  improving  his  version.   It  is
submitted that PW-1 is not reliable as had he been present at  the  time  of
occurrence, he would have endeavoured to save the victim and the  nature  of
injuries as mentioned in Ex. PW-51/A on the person of  PW-1  raises  serious
doubt about his presence at the time of occurrence.

92.   The prosecutrix and PW-1 were surrounded and attacked by at least  six
accused persons. As narrated by PW-1, he was  pinned  down  by  two  of  the
assailants while the others committed rape on the prosecutrix  on  the  rear
side of the bus.  The accused persons were in a group and  were  also  armed
with iron rods. PW-1 was held by them. It would not have been  possible  for
PW-1 to resist the number of accused persons and save the  prosecutrix.  The
evidence of PW-1 cannot be doubted on the ground that he had not  interfered
with the occurrence. The improvements made in  the  supplementary  statement
need not necessarily render PW-1’s evidence untrustworthy more so when  PW-1
has no reason to falsely implicate the accused.

93.   Learned counsel for the State has highlighted that the version of  PW-
1 is absolutely consistent and the trial court as well  as  the  High  Court
has correctly relied upon his testimony. He has drawn our attention  to  the
version of PW-1 in the FIR, the statement recorded under  Section  164  CrPC
and  his  testimony  before  the  trial  court.  We   have   given   anxious
consideration and perused the FIR, supplementary statements  recorded  under
Section 164 CrPC and appreciated the evidence in  court  and  we  find  that
there is no justification or warrant to treat the version of the witness  as
inconsistent.  The  consistency  is  writ  large  and  the  witness,  as  we
perceive, is credible.
94.   Mr. Luthra, learned senior counsel,  further  contested  the  argument
advanced on behalf of the appellants as regards the discrepancies so far  as
PW-1 is concerned. As regards the items stolen, it is recorded  in  the  FIR
that the accused persons stole the informant’s Samsung Galaxy  Mobile  phone
bearing 7827917720 and 9540034561 and his wallet containing  Rs.1000,  ICICI
debit card, Citi Bank Credit Card, ID Card, one silver ring, one  gold  ring
and took off all his clothes, i.e., khakhi coloured  blazer,  grey  sweater,
black jeans, black Hush Puppies shoes and they also stole the  prosecutrix’s
mobile phone with number 9818358144. His statement  recorded  under  Section
164 CrPC states that the accused snatched the Samsung Galaxy S-Duos  Mobile,
one more mobile phone of Samsung, one purse  with  Rs.  1000,  one  Citibank
credit card, ICICI Debit Card, Company I-Card, Delhi  Metro  Card  and  also
snatched black jeans, one silver ring, one gold ring,  Hush  Puppies  shoes.
They also snatched the prosecutrix’s Nokia  mobile  phone  and  grey  colour
purse and both the wrist watches.  Before the trial court, he  deposed  that
they snatched both the rings, shoes, purse containing cards and cash,  socks
and belt; they took off all his clothes and left him in  an  underwear;  the
accused had also taken off all the prosecutrix’s clothes  and  snatched  all
her belongings including grey purse containing Axis bank  card.   PW-1  also
identified Hush Puppies shoes, Ex. P-2, Sonata watch, Ex. P-3,  metro  card,
Ex. P-5, Samsung Galaxy Duos, Ex. P-6, and  currency  notes,  Ex.  P-7.   As
regards the weapon of assault, in the FIR and in the Section 164  statement,
“rod” was recorded as weapon of assault and  in  his  testimony  before  the
trial court, PW-1 deposed that the weapon of assault was “iron  rods”.    So
far as throwing from the bus is concerned, it is recorded in  the  FIR  that
the other accused persons told the driver to drive the bus at a  fast  speed
and then tried to throw the  informant  from  the  back  door  of  the  bus,
however, the back door of the bus did not open. Then they   threw  both  the
informant and the prosecutrix from the moving bus near NH  8  Mahipalpur  on
the side of the road.  His statement recorded under Section 164 CrPC  states
that the bus driver was driving the bus at a fast speed  on  being  told  by
the other accused and he heard them saying that the girl  had  died  and  to
throw her off the bus. They then took the informant and the  prosecutrix  to
the rear door of the bus  but  could  not  open  the  door  and,  therefore,
dragged them to the front door of the  bus  and  threw  them  out.  The  bus
driver turned the bus in such a manner after  throwing  them,  that  if  the
informant had not pulled the prosecutrix, then the bus would have  run  over
her. PW-1 has deposed before the trial  court  that  he  heard  one  of  the
accused saying “mar gayee, mar gayee”; the accused were exhorting  that  the
informant and the prosecutrix should not be left alive; the accused  persons
pulled the informant near the rear door and  put  the  prosecutrix  on  him.
The rear door was closed,  so  they  dragged  both  the  informant  and  the
prosecutrix to the front door; they were thrown  off  opposite  Hotel  Delhi
37; after they were thrown, the accused persons turned the bus and tried  to
crush them under the wheels.   As  regards  the  naming/description  of  the
accused, the FIR recorded that the accused were aged  between  25-30  years;
one of them had a flat nose and was the youngest; one of  them  wore  a  red
banian and they were wearing pant and shirt; and the accused were  named  as
Ram Singh, Thakur, Mukesh, Vinay  and  Pawan.   In  the  statement,  it  was
recorded that he saw a dark coloured  man  who  was  being  called  “Mukesh,
Mukesh”; he over-heard them calling each other as  Ram  Singh,  Thakur;  and
the other three were addressing each other Pawan and Vinay  and  taking  the
name of JCL.  In his testimony, it  is  recorded  that  he  identified  A-2,
Mukesh, as Driver, A-1, Ram Singh, and A-3, Akshay, as  persons  sitting  in
the driver’s cabin and identified A-4, Vinay, and  A-5,  Pawan,  as  persons
sitting in the bus.
95.   As regards the minor contradictions/omissions,  the  trial  court  has
placed reliance upon Pudhu Raja  (supra)  and   Jaswant  Singh  (supra)  and
treated the version of PW-1 as reliable. The  testimony  of  PW-1  has  been
placed reliance upon by both the  Courts  and  on  an  anxious  and  careful
scrutiny of the same, we do not perceive any reason to differ with the  said
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

Recovery of the bus and the CCTV footage
97.   The endeavour of the prosecution was to first check the route and  get
a clue of the bus.  For the aforesaid  purpose,  the  CCTV  footage  becomes
quite relevant. The story starts from the Select City Walk Mall,  Saket  and
hence, we have to start from there. As per the case of the prosecution,  the
informant and the prosecutrix had gone to Select City Walk  Mall,  Saket  to
see a film.  The CCTV footage produced by PW-25, Rajender Singh Bisht, in  a
CD, Ex.PW-25/C-1 and PW-25/C-2, and the photographs, Ex.PW-25/B-1 to  Ex.PW-
25/B-7, are evident of the fact that the informant and the prosecutrix  were
present at Saket till 8:57 p.m. The  certificate  under Section  65B of  the
Evidence Act with respect to the said  footage  is  proved  by  PW-26,  Shri
Sandeep Singh, vide Ex.PW-26/A. The informant as  well  as  the  prosecutrix
gave brief description of the entire incident in their MLCs  which  led  the
investigating team to the Hotel near Delhi  Airport  where  the  prosecutrix
and the informant were dumped after the incident. PW-67, Pramod  Kumar  Jha,
the owner of the Hotel at Delhi Airport, was examined by  the  investigating
officers regarding the present  incident.  He  handed  over  the  pen  drive
containing the CCTV footage, Ex.P-67/1, and the CD, Ex.P-67/2  to  the  I.O.
which were seized vide seizure memo Ex.PW-67/A. The  CCTV  footage  and  the
photographs were identified by PW-67, Pramod Jha, PW-74. SI  Subhash  Chand,
and Gautam Roy, PW-76, from CFSL during  their  examination  in  Court.  The
CCTV footage twice showed a white  coloured  bus  having  yellow  and  green
stripes at 9:34 p.m. and again at 9:53 p.m.  The  bus  exactly  matched  the
description of the offending bus given by the informant.  It  had  the  word
“Yadav” written on one of its sides and its front tyre on the left side  did
not have a wheel cap. PW-78, the S.H.O., Inspector Anil Sharma, has  further
deposed that the said CCTV footage seized vide seizure memo  Ex.PW-67/A  was
sent to the CFSL through SI Sushil Sawariya, PW-54, on 02.01.2013, and  this
part of the testimony of PW-78 is corroborated by the  testimony  of  PW-54,
SI Sushil Sawaria, and PW-77, the MHC(M).  Thereafter,  on  03.01.2013,  the
report of the CFSL was received.  In  fact,  the  trial  court  had  assured
itself of the correct identification of the bus by  playing  the  said  CCTV
footage shown in the pen drive, Ex.PW-67/1, and the CD,  Ex.PW-67/2,  during
the cross-examination of PW-67, Pramod Jha.
98.   Learned counsel Mr. Singh has asserted that bus,  Ex.  P-1,  has  been
falsely implicated in the present case as is evidenced from the recovery  of
the CCTV footage. In an attempt to discredit the CCTV  footage,  he  pointed
out that only the CCTV recording alleged to be of this bus was recorded  and
not of all other white buses that had ‘Yadav’ written on them.  The  learned
counsel for the  defence  subsequently  maintained  that  the  CCTV  footage
cannot  be  relied  upon  as  the  same  has  been  tampered  with  by   the
investigating officers.

99.    PW-76,  Gautam  Roy,  HOD,  Computer  Cell,  Forensic  Division,  has
testified that on 02.01.2013, he had  received  two  sealed  parcels  sealed
with the seal of PS and the seals tallied with the specimen seals  provided.
He marked the blue coloured pen drive found in parcel No.1 as Ex.1  and  the
Moser Baer CD found in the second parcel as Ex.2. He further testified  that
both the exhibits were played by him in the computer and the  bus  was  seen
twice, at 9:34 p.m. and 9:54 p.m. He had photographed  all  these  three  by
freezing the pen drive and the CD and these  photographs  were  compared  by
him with the photographs taken by  the  photographer,  PW-79,  P.K.  Gottam,
which he had summoned. The witness testified that he had prepared the  three
comparison charts in this regard as Ex.PW-76/B,   PW-76/C and  PW-76/D,  and
his detailed report as Ex.PW-76/E.  The footage taken in a CD and pen  drive
was sealed in PW-67’s presence and  as  the  recording  was  automatic  data
being fed on regular basis into the hard disk,  the  question  of  tampering
with the same could not arise. PW-79,  P.K.  Gottam,  from  CFSL,  CBI,  has
stated in his examination that he took photographs of the bus bearing No.DL-
1P-C-0149 parked at Thyagraj Stadium, INA, New Delhi from  different  angles
on 17.12.2012 and 18.12.2012 and handed over the same  to  PW-76.  The  said
photographs were marked as B1 in Ex.PW-76/B; as C1 and C2  in    Ex.PW-76/C;
and as D1 in Ex.PW-76/D. He  has  deposed  as  to  the  genuineness  of  the
photographs  by  deposing  that  the  software  used  for   developing   the
photographs was tamper proof.

100.        Once it is proved before the court through the testimony of  the
experts that the photographs and the CCTV footage  are  not  tampered  with,
there is no reason or justification to perceive the same with  the  lens  of
doubt. The opinion of the CFSL expert contained in the  CFSL  report  marked
as Ex.PW-76/E authenticates that there was no tampering or editing  in  both
the exhibits, Ex.P-67/1 and Ex.P- 67/2, and  that  a  bus  having  identical
patterns as the one parked at Thyagraj Stadium is seen in the CCTV  footage,
which includes the word  “Yadav”  written  on  one  side,  "back  side  dent
(left)" and absence of wheel cover on the front left side. The  contents  of
the report is also admitted to be true by its  author,  PW-76,  Gautam  Roy.
Quite apart from that, it is perceptible that the High Court,  in  order  to
satisfy itself, had got the CCTV  footage  played  during  the  hearing  and
found the same to be creditworthy and acceptable.

101.        As the narrative proceeds, the next step was  to  find  out  the
bus.  The identity of the bus in the CCTV footage was  known  and  the  said
knowledge could propel the prosecution to move for recovery.  We  may  start
from the beginning.  The bus, Ex. P-1, bearing registration No.          DL-
1P-C-0149, is the vehicle alleged to have been involved in the incident. PW-
74, SI Subhash Chand, on 17.12.2012, along with PW-1, the informant, and PW-
80, WSI Pratibha Singh, went to Munirka bus stand  from  where  the  victims
had boarded the alleged bus, Ex. P-1, and then to  Mahipalpur  to  the  spot
where both the victims were thrown off the bus  on  16.12.2012.   After  the
collection of exhibits from the spot, PW-74 and PW-80  went  to  the  hotels
opposite the spot having CCTV cameras installed and amongst those was  Hotel
Delhi 37. At the said hotel, the informant/PW-1 identified the bus they  had
boarded in the CCTV footage of the road and  the  relevant  footage  of  the
recording was taken in a pen drive  and  CD  and  was  handed  over  to  the
Investigating Officer as Ex. PW-67/A. Later in the day,  secret  information
was received by PW-80 that the alleged bus was  parked  at  Sector  3,  R.K.
Puram. PW-74 accompanied PW-80 and PW-65, Ct Kripal Singh, to Ravidass  Camp
where a bus matching the description given  by  PW-1  was  parked  near  the
Gurudwara.  It was white in colour with ‘Yadav’ written on  the  side.  When
the police approached the bus, A-1, Ram Singh, got down from it and  started
to run; he was later apprehended in a chase by PW-74 and  PW-65.  From  A-1,
the fitness certificate, PUC and other documents regarding the  registration
of the vehicle DL-1PC-0149 were seized as Ex. PW-74/I, PW-74/J and  PW-74/K.
 The entry door of the bus was ahead of the front wheel and  the  wheel  cap
was missing from the front tyre. After recovery of the burnt clothes at  the
behest of A1,  he  was  sent  to  the  police  station  with  PW-65.  PW-42,
      Ct. Suresh Kumar, was called to the spot  and  he  drove  the  bus  to
Thyagraj Stadium around 5:45 p.m. on the same day.   An  inspection  of  the
bus was conducted inside the stadium and the CFSL team lifted  Ex.  PW-74/P.
Thereafter, PW-32, SI Vishal Chaudhary,  and  PW-33,  SI  Vikas  Rana,  were
called from police station Kotla Mubarakpur to guard the bus.

102.        Mr. Singh has raised the following issues with  respect  to  the
identification and recovery of the alleged bus:
CCTV footage was not properly examined to check all  possible  buses  plying
on the said route;

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

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

103.        Mr. Singh has made bald allegation that the  bus,  Ex  P-1,  was
falsely implicated and that all the DNA  evidence  recovered  therefrom  was
actually planted. He contends that the bus, Ex. P-1, was  sent  to  Thyagraj
Stadium instead of the concerned Police Station, PS Vasant Vihar,  with  the
deliberate intention of avoiding the media attention so  that  the  evidence
could be planted easily. This  argument  is  in  furtherance  of  his  false
implication  theory.  He  has,  however,  provided   no   further   specific
assertions to cast a doubt in our mind  that  the  police  has  planted  the
evidence in the bus.
104.        Mr. Luthra, in his turn, relying on the decision  of  the  Delhi
High Court in Manjit Singh v. State[49], has  placed  statistics  before  us
pointing to the paucity of physical space  in  police  stations  across  the
city. In Manjit Singh (supra), the High Court had ordered the  Delhi  Police
to furnish data regarding case properties with the Police.  The  High  Court
noted that there was an accumulation of “2,86,741 case properties  including
25,547 vehicles, out of which as many  as  2,479  properties  are  lying  in
public places outside the police stations”. Given the state of affairs,  the
submission put forth by Mr. Luthra is acceptable. There is dearth  of  space
inside the police stations in Delhi and  the  use  of  Thyagraj  Stadium  as
parking lot in the present case does not necessarily  mean  that  there  was
any mala fide intention on the part of the investigating agency without  any
specific assertion to advance the said bald allegation.

105.        It may also be noted  that  on  17.12.2012,  PW-42,  Ct.  Suresh
Kumar, drove the bus from Ravidass Camp  to  Thyagraj  Stadium  around  5:45
p.m. along with  PW-74  and  PW-80.   About  6:15  p.m.,  PW-32,  SI  Vishal
Chaudhary, along with Ct. Amit, both of PS Kotla Mubarakpur,  were  sent  to
Thyagraj Stadium where on the instructions of        PW-80, SI Pratibha, PW-
32, guarded the bus till 8:00 a.m. the next day. On  18.12.2012,  he  handed
over the charge of guarding the bus  to  PW-33,  SI  Vikas  Rana,  PS  Kotla
Mubarakpur, and he guarded the bus till 8:30  p.m.,  until  after  the  CFSL
team left. Thus, the  criticism  as  regards  the  parking  of  the  bus  at
Thyagraj Stadium and not at the Police Station pales into insignificance.

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

106.        Having dealt with the recovery of the bus, it  is  necessary  to
dwell upon  the  contention  put  forth  by  the  learned  counsel  for  the
appellants which pertains  to  the  acceptability  and  reliability  of  the
testimony of PW-81, Dinesh Yadav.  The principal contention in  this  regard
is that PW-81, Dinesh Yadav, the owner of the bus, was in  judicial  custody
and, therefore, his version in the court is under tremendous pressure as  he
was desirous of getting a bail order  to  enjoy  his  liberty.  Highlighting
this aspect, it is urged by Mr. Sharma and Mr. Singh,  learned  counsel  for
the appellants, that the testimony  of  the  said  witness  deserves  to  be
totally discarded.

107.        PW-81, Dinesh Yadav, is a transporter and owns  8  to  10  buses
including Ex. P-1. He runs the buses under the name ‘Yadav Travels’. He  was
examined by the prosecution to prove that A-1, A-2  and  A-3  are  connected
with the bus, Ex. P-1. In his examination,  PW-81  admitted  that  the  word
‘Yadav’ is written across Ex. P-1 and  that  it  is  white  in  colour  with
yellow stripes. PW-81 stated that A-1, Ram Singh (since deceased),  was  the
driver of the said bus in December 2012,  A-3, Akshay Kumar Singh,  was  his
helper and the bus was usually parked by A-1,  Ram  Singh,  in  R.K.  Puram,
near his residence. The bus was attached  to  Birla  Vidya  Niketan  School,
Pushp Vihar, New Delhi to ferry students  in  the  morning  and  also  to  a
Company, M/s Net Ambit, Sector 132, Noida, to take its employees from  Delhi
to Noida. On 17.12.2012, the bus went from Delhi to  Sector  132,  Noida  to
take the staff of M/s Net Ambit to their office and PW-81 was informed by A-
1, Ram Singh, or A-2, Mukesh, that the bus  was  checked  at  the  DND  toll
plaza on their route to Noida.

108.        Learned counsel Mr. Singh has asserted that PW-81  was  kept  in
judicial custody to obtain a statement favourable to the prosecution in  the
present case. In this aspect, it is noted that PW-81  also  stated  that  he
was kept in judicial custody. The arrest  was,  however,  not  made  in  the
present case; it  was  in  connection  with  another  case  in  relation  to
providing incorrect address to the Transport Authority.  He  was  lodged  in
jail in case FIR No. 02/2013 of PS Civil Lines under Sections 420, 468,  471
IPC.  PW-81 had provided his friend’s address as his  own  at  the  time  of
registration  and  was  arrested  on  a  complaint  made  by  the  Transport
Authority.  He was named in the charge-sheet in the  present  case  and  was
cited as a witness at serial No. 36 but was dropped by  the  prosecution  on
28.05.2013. Later on, his examination was sought by way  of  an  application
under Section 311 CrPC. The application  was  allowed  by  the  trial  court
order dated 03.07.2013 on the ground that he was the owner of  the  bus  and
his examination was necessary to prove as to whom he  had  handed  over  the
custody of the bus on the night of the incident,  i.e.,  16.12.2012.  It  is
limpid from the deposition of PW-81 that he was in judicial  custody  for  a
separate offence and, therefore, it is difficult to accede to  the  argument
advanced by Mr. Singh that he was under pressure to support the  version  of
the prosecution.

109.        Apart from the above, the prosecution, in order to place A-1  as
the driver of the bus, Ex. P-1, has examined PW-16, Rajeev Jakhmola.  PW-16,
Manager (Admn) of Birla Vidya Niketan School,  Pushp  Vihar,  handled  their
transport. In his examination, he  stated  that  PW-81,  Dinesh  Yadav,  had
provided the school with 7 buses on contract basis  including  Ex.  P-1  and
that A-1, Ram Singh, was its  driver.  He  also  submitted  a  copy  of  Ram
Singh’s Driving Licence to the Police along with the copy of  the  agreement
of the school with the owner of the  bus,  copy  of  the  RC,  copy  of  the
fitness  certificate,  certificate  of  third  party  technical  inspection,
pollution  certificate,  two  copies  of   certificate–cum-policy   schedule
(Insurance), copy of  certificate  of  training  undergone  by  accused  Ram
Singh, copy of permit and list of the transporters, collectively as Ex.  PW-

110.        Thus, according to the prosecution, from the evidence of  PW-16,
Rajeev Jakhmola, and PW-81, Dinesh Yadav, it stands proved that the  bus  in
question was routinely driven by Ram Singh.  When  an  argument  was  raised
before the High Court over the veracity of PW-81’s  testimony,  it  recorded
as under:

“270. We are constrained to say that there is no substance in the  aforesaid
contention of Mr. Sharma for the reason that PW-81 Dinesh Yadav,  the  owner
of the bus bearing registration No.DL1PC-0149,  in  which  the  offence  was
committed, has categorically stated in his cross-examination that bus  Ex.P-
1 was being used for ferrying the students in the morning and thereafter  as
a chartered bus for taking the officials of M/s. Net  Ambit  from  Delhi  to
Noida. He further stated in cross-examination that on  17.12.2012,  the  bus
took the staff of M/s. Net Ambit from Delhi to Sector 132, Noida, UP.  Quite
apparently, therefore, accused Ram Singh as disclosed by him had thrown  the
SIM card nearabout the bus stand of Sector  37,  where  according  to  PW-44
Mohd. Zeeshan, it was found at the noon hour. Since it  is  not  in  dispute
that accused Ram Singh was the driver of the bus and this fact stands  fully
established by the evidence on record, Noida was possibly found  by  him  to
be the safest destination to dispose of the SIM card.”

111.        The aforesaid analysis commends our approval because we,  having
analysed the said aspect on our own, have arrived at  the  same  conclusion.
There is  no  trace  of  doubt  that  the  testimony  of  the  said  witness
withstands close scrutiny and there is no reason to treat it with  any  kind
of  disapproval.   That  apart,  the  evidence  of  PW-16  corroborates  the
testimony of the owner of the bus.

Personal search and statements of disclosure leading to recovery

112.        Learned counsel for the  appellants  have  seriously  questioned
the arrest of the accused persons and the recoveries made  pursuant  to  the
said arrest.  It is the stand  of  the  prosecution  that  pursuant  to  the
arrest of all the accused A-1  to  A-5,  there  were  disclosure  statements
recorded under Section 27 of the Evidence Act which  led  to  recoveries  of
incriminating articles such as objects belonging  to  the  victims  as  also
objects which have been linked orally or  scientifically  (such  as  through
DNA  profiling)  to  the  prosecutrix  and  PW-1.  These  material   objects
recovered are used to link the convicts with the crime and  corroborate  the
version of the eye witness PW-1 and the dying declaration  of  the  deceased
113.        First, we shall refer  to  the  arrest  of  Ram  Singh  and  the
recoveries made at his instance.  As already stated, on  17.12.2012,  PW-80,
SI Pratibha Sharma, had spotted accused Ram Singh sitting in  the  offending
bus, Ex. P1, which was parked at Ravidass Camp, R.K. Puram,  New  Delhi.  On
seeing the police, Ram Singh got down from the bus and started running.   He
was chased and instantly arrested at 4:15  p.m.  vide  memo  Ex.PW-74/D  and
subsequently, his personal search was conducted  vide  memo  Ex.PW-74/E  and
his disclosure Ex.PW-74/F was recorded.   Notably,  Ram  Singh  has  led  to
several important discoveries and seizures from inside the bus.
114.        Accused  Mukesh  was  apprehended  on  18.12.2012  from  village
Karoli, Rajasthan, by a team  headed  by  PW-58,  SI  Arvind.   He  produced
accused Mukesh before PW-80, SI Pratibha Sharma, the Investigating  Officer,
at Safdarjung Hospital in muffled face alongwith a  mobile,  Samsung  Galaxy
Duos, Ex.P-6, seized by her vide memo Ex.PW-58/A.  The accused was  arrested
at 6:30 p.m. on 18-12-2012 by her vide  memo  Ex.PW-58/B  and  his  personal
search was conducted vide memo Ex.PW-58/C. The accused pointed  the  Munirka
bus stand vide memo Ex.PW-68/K and the dumping spot  vide  memo  Ex.PW-68/L.
This Samsung Galaxy phone was identified to be that of PW-1, the informant.

115.         On  23.12.2012,  accused  Mukesh  led  the  police  to   Anupam
Apartment, garage No. 2, Saidulajab, Saket, New Delhi, and got  recovered  a
green colour T-shirt,  Ex.P-48/1, on which the word “play boy” was  printed;
a grey colour pant, Ex.P-48/2, and  a  jacket,  Ex.P-48/3,  of  bluish  grey
colour, all seized vide memo  Ex.PW-48/B.  The  Investigating  Officer  also
prepared  the  site  plan,  Ex.PW-80/I,  of  the  place  of  recovery.    On
24.12.2012, accused Mukesh also got prepared a route chart Ex.PW-80/H.

116.        On 18.12.2012, accused Ram Singh led the  Investigating  Officer
to Ravidass Camp and pointed towards his associates, namely,  accused  Vinay
and accused Pawan.  Accused Pawan was apprehended and  arrested  about  1:15
p.m. vide memo Ex.PW-60/A; his disclosure, Ex.PW-60/G, was recorded and  his
personal search was conducted vide memo  Ex.PW-60/C.   Accused  Pawan  Gupta
pointed out the Munirka bus stand and a pointing  out  memo  Ex.PW-68/I  was
prepared.  He  also  pointed  the  dumping  spot  and  memo  Ex.PW-68/J  was
prepared in this regard.
117.        On 19.12.2012, from accused Pawan  Gupta,  PW-80,  got  effected
the following recoveries:
Wrist watch Ex.P3 seized vide memo Ex.PW-68/G;

Two currency notes of denomination of  Rs.500/-  Ex.P-7  colly  were  seized
vide memo Ex.PW-68/G;

Clothes worn by the accused at the time of the  incident  seized  vide  memo
Ex.PW-68/F; and

Black coloured sweater having grey stripes with label Abercrombie and  Fitch
Ex.P-68/6 and a pair of coca-cola colour pants  Ex.P-68/7  colly;  underwear
having elastic labeled Redzone Ex.P-68/8 and a pair  of  sports  shoes  with
Columbus inscribed on them as Ex.P-68/9.

      It may be stated here that Sonata wrist watch, Ex. P3, was  identified
as that of PW-1.
118.        On  18.12.2012,  about  1:30  p.m.,  accused  Vinay  Sharma  was
arrested in front of Ravidass Mandir, Main Road, Sector-3, R.K.  Puram,  New
Delhi vide arrest memo Ex.PW-60/B; and his disclosure  Ex.PW-60/H  was  also
recorded.  He pointed out the Munirka bus stand from where the victims  were
picked up vide memo Ex.PW-68/I and he also pointed out  Mahipalpur  Flyover,
the place where the victims were thrown out of the moving bus vide  pointing
out memo Ex.PW-68/J.  On 19.12.2012, he led to the following recoveries:
Hush Puppies shoes Ex.P-2 seized vide memo Ex.PW-68/C; and

Nokia mobile phone Ex.P-68/5 of the  prosecutrix  seized  vide  memo  Ex.PW-

      Hush Puppies shoes, Ex. P2, were identified to be that  of  PW-1,  the
informant.  Nokia Mobile Phone, Ex. P-68/5, was identified  to  be  that  of
the prosecutrix.
119.         On  19.12.2012,  pursuant  to  his   supplementary   disclosure
statement Ex.PW-68/A, the following recoveries  were  made  by  the  accused
vide seizure memo Ex.PW-68/B:
One blue coloured jeans having monogram of Expert Ex.P-68/1;

A black coloured sports jacket with white stripes and a monogram of  moments
as Ex.P-68/3 and a pair of rubber slippers as Ex.P-68/4.

120.        During the  personal  search  of  Vinay  Sharma,  the  following
article was recovered:
Nokia  mobile  phone  with  IMEI  No.  35413805830821418  belonging  to  the
accused, which was returned to him on superdari vide order dated 4-4-2013

121.        On 21.12.2012, about 9:15 p.m., accused  Akshay  Kumar  Singh  @
Thakur  was  arrested  from  village  Karmalahang,  P.S.  Tandwa,   District
Aurangabad, Bihar vide memo Ex.PW-53/A and  on  21.12.2012  and  22.12.2012,
his disclosures, Ex.PW-53/I and Ex.PW-53/D, respectively were  recorded.  On
22.12.2012, he got effected the following recoveries from the  residence  of
his brother, Abhay, from  the  rented  house  of  one  Tara  Chand,  village
Naharpur, Gurgaon, viz;
Blood stained jeans (Ex.P-53/3) worn by the  accused  at  the  time  of  the
incident, recovered from a black bag (Ex.P-53/2)

A blue black coloured Nokia mobile phone (Ex.P-53/1)

 Blood-stained red coloured banian (vest).

122.        On 27.12.2012, he got recovered the informant’s Metro card Ex.P-
5 and the informant’s silver ring, Ex.P-4, from House No. 1943,  3rd  Floor,
Gali No.3, Rajiv Nagar, Sector-14, Gurgaon, Haryana.

123.        Learned counsel for  the  appellants  and  learned  amicus,  Mr.
Hegde, have vehemently criticized the arrest and recoveries that  have  been
made or effected.  It is urged by Mr. Sharma that the appellant  Mukesh  was
not in custody when the recovery took place and  additionally,  he  was  not
produced before the nearest Magistrate within  twenty-four  hours  from  the
time of detention.  Mr. Luthra, in his turn,  would  submit  that  the  said
accused was formally arrested at Delhi and, thereafter, the recovery on  the
basis of his disclosure took place. Mr. Singh,  learned  counsel,  contended
that the disclosure statements which have been recorded  by  the  police  do
tantamount to  confessional  statements  relating  to  the  involvement  and
commission of the crime. This argument requires to be squarely  dealt  with.
For appreciating the said submission, it  is  necessary  to  appreciate  the
inter-se relationship between the accused persons and thereafter dwell  upon
the process of the arrest and judge the acceptability on the  anvil  of  the
precedents in the field.

124.        As the evidence  brought  on  record  would  show,  the  accused
persons were known to each other. Mukesh, A-2, and deceased Ram Singh,  A-1,
were brothers.  According to the  testimony  of  Dinesh  Yadav,  PW-81,  Ram
Singh was the driver of the bus and A-3, Akshay, was working as a helper  in
the bus.  The same is manifest from the  Attendance  Register,  Ex.  P-81/2,
seized vide Ex. PW-80/K and the Driving License of A-1, Ram  Singh,  Ex.  P-
74/4, seized vide Ex. PW-74/1.  From the testimony of PW-13, Brijesh  Gupta,
and PW-14, Jiwant Shah, it  is  evident  that  Ram  Singh  and  Mukesh  were
brothers.  From the evidence of Champa Devi, DW-5, mother of Vinay, A-4,  it
is quite clear that Vinay, Pawan, A-5, and Ram Singh,  A-1,  were  known  to
each other.  Mukesh, in his statement under Section 313 CrPC,  has  admitted
that he and Ram Singh are brothers. A-3,  Akshay,  in  his  statement  under
Section 313 CrPC, has admitted that he was working with  Ram  Singh  in  the
bus, Ex. P-1, as a helper.   He has also admitted that  he  knew  Ram  Singh
and there had been altercation on  16.12.2012  with  A-1,  Ram  Singh.  A-5,
Pawan, in his statement under Section 313  CrPC,  admitted  that  he  was  a
witness to the quarrel between A-4, Vinay, and  A-1,  Ram  Singh.  From  the
aforesaid evidence, it  is  luminous  that  all  the  accused  persons  were
closely associated with each other.

125.        Having dealt with this facet, we shall now proceed to  meet  the
criticism advanced by the learned counsel for the appellants with regard  to
the recoveries and the disclosure statements that led to the discoveries.

126.        Assailing the acceptability of the  arrest  and  the  disclosure
statements leading  to  the  recoveries,  Mr.  Sharma  and  Mr.  Singh  have
contended that the materials brought on record cannot be taken  aid  of  for
any purpose since the items seized  have  been  planted  at  the  places  of
recovery and a contrived version has been projected in court.   That  apart,
it is submitted that the recoveries are gravely  doubtful  inasmuch  as  the
prosecution has not  seized  all  the  articles  from  one  accused  on  one
occasion but on various dates.  We have cleared  the  maze  as  regards  the
arrest and copiously noted the manner of arrest of the accused  persons  and
their  leading  to  recoveries.   Be  it  noted,  recovery  is  a  part   of
investigation  and  permissible  under  Section  27  of  the  Evidence  Act.
However, Mr. Sharma has raised a contention  that  this  Court  should  take
note of the fact that Section 27 of the Evidence Act has become  a  powerful
weapon in the hands of the prosecution to rope in  any  citizen.   The  said
submission, as we perceive, is quite broad and specious.  It is open to  the
defence to find fault with recovery and the manner in which it is  done  and
its relevance.  It is not permissible to advance an  argument  that  Section
27 of the Evidence Act is constantly abused by the prosecution  or  that  it
uses the said provision as a lethal weapon against anyone it likes.  In  the
instant case, we have noted how the recoveries have been made and  how  they
have  been  proved  by  the  unimpeachable  testimony  of  the   prosecution

127.  Mr. Luthra, learned senior counsel  appearing  for  the  State,  would
submit that in the present case, the material  objects  recovered  serve  as
links to corroborate and they have been used as the law  permits.   In  this
regard, he has filed a chart which we think it appropriate to reproduce  for
better appreciation of the said aspect. It is as follows:

|“S. |Accused|Time of |Place of  |Voluntary|Personal Items|Recovery of |Recovery|
|No. |       |Arrest  |Arrest    |Disclosur|Recovered     |Items       |of Items|
|    |       |        |          |e        |              |belonging to|belongin|
|    |       |        |          |         |              |PW1         |g to    |
|    |       |        |          |         |              |            |Prosecut|
|    |       |        |          |         |              |            |-rix    |
| 1  |Ram    |4.15    |Ravi Dass |Ex. PW   |T-Shirt-DNA   |Partly      |Debit   |
|    |Singh  |P.M.,   |Camp      |74/F     |and brown     |unburnt     |Card in |
|    |       |17.12.12|          |         |colour        |clothes (the|the name|
|    |       |        |          |         |chappal-DNA   |DNA profile |of Asha |
|    |       |        |          |         |(Ex. PW-74/L) |of the      |Devi    |
|    |       |        |          |         |              |Complainant |(Ex.    |
|    |       |        |          |         |UNIX mobile   |was found to|PW-74/H)|
|    |       |        |          |         |phone with    |match those |        |
|    |       |        |          |         |MTNL Sim      |found on    |        |
|    |       |        |          |         |              |these       |        |
|    |       |        |          |         |              |clothes.)   |        |
|    |       |        |          |         |              |            |        |
|    |       |        |          |         |              |(Ex.        |        |
|    |       |        |          |         |              |PW-74/M)    |        |
|    |       |        |          |         |              |            |        |
|    |       |        |          |         |              |            |        |
|    |       |        |          |Pursuant |              |            |        |
|    |       |        |          |to the   |              |            |        |
|    |       |        |          |disclosur|Iron Rods (Ex.|            |        |
|    |       |        |          |e        |PW-74/G)      |            |        |
|    |       |        |          |statement|              |            |        |
|    |       |        |          |- rod    |Documents of  |            |        |
|    |       |        |          |         |Bus (Ex.PW    |            |        |
|    |       |        |          |         |74/I)         |            |        |
|    |       |        |          |         |              |            |        |
|    |       |        |          |         |Bus Keys (Ex. |            |        |
|    |       |        |          |         |PW-75/J)      |            |        |
|    |       |        |          |         |              |            |        |
|    |       |        |          |         |Bus (Ex.      |            |        |
|    |       |        |          |         |PW-74/K)      |            |        |
|2   |Mukesh |6.30    |Apprehende|Ex.PW-60/|A green       |Samsung     |Samsung |
|    |       |P.M.,   |d in      |I        |T-shirt-DNA, a|Galaxy Duos |Galaxy  |
|    |       |18.12.12|Karoli,   |         |grey pant and |(Ex.PW-58/A)|identifi|
|    |       |        |Rajasthan |         |a bluish-grey |            |ed as   |
|    |       |        |formally  |         |jacket        |            |that of |
|    |       |        |arrested  |         |(Ex.PW-48/B)  |            |PW-1    |
|    |       |        |at        |         |              |            |        |
|    |       |        |Safdarjung|         |              |            |        |
|    |       |        |Hospital  |         |              |            |        |
|3   |Akshay |9:15    |Karmala-ha|Ex.PW53/I|Blood-Stained |Metro Card  |        |
|    |       |P.M.,   |ng,       |AND      |Jeans and     |Silver Ring |        |
|    |       |21.12.12|Tandwa,   |Ex.PW53/D|Black Bag     |            |        |
|    |       |        |Aurangabad|         |Blue Black    |            |        |
|    |       |        |          |         |coloured Nokia|            |        |
|    |       |        |          |         |mobile phone  |            |        |
|4   |Vinay  |1:15    |In front  |Ex. PW   |Blue jeans,   |Hush Puppies|Hush-   |
|    |       |P.M.    |of        |60/H     |Black Sports  |Shoes       |Puppies |
|    |       |18.12.12|Ravidass  |         |jacket with   |(Ex.        |shoes   |
|    |       |        |Mandir    |Ex.PW    |white stripes,|PW-68/C)    |identifi|
|    |       |        |          |68/A     |rubber        |Nokia mobile|ed as   |
|    |       |        |          |         |slippers,     |phone       |that of |
|    |       |        |          |         |black         |(Ex.PW-68/D)|PW-1,   |
|    |       |        |          |         |full-sleeved  |            |        |
|    |       |        |          |         |t-shirt (Ex.  |            |Nokia   |
|    |       |        |          |         |PW-68/B)      |            |mobile  |
|    |       |        |          |         |Nokia mobile  |            |phone   |
|    |       |        |          |         |phone         |            |identifi|
|    |       |        |          |         |              |            |ed as   |
|    |       |        |          |         |              |            |that of |
|    |       |        |          |         |              |            |prosecut|
|    |       |        |          |         |              |            |rix     |
|5   |Pawan  |1:30    |In front  |Ex. PW   |Black sweater |Wrist watch |Sonata  |
|    |       |P.M.,   |of Ravidas|60/G     |having grey   |(Ex.        |wrist   |
|    |       |18.12.12|Mandir    |         |stripes,      |PW-68/G),   |watch   |
|    |       |        |          |         |Coca-cola     |Two currency|identifi|
|    |       |        |          |         |colour pants, |notes of    |ed      |
|    |       |        |          |         |under- wear   |denomination|byPW-1  |
|    |       |        |          |         |having elastic|of Rs.500/- |as      |
|    |       |        |          |         |labeled       |(says in    |belongin|
|    |       |        |          |         |Redzone, A    |disclosure  |g to him|
|    |       |        |          |         |pair of sports|that he got |        |
|    |       |        |          |         |shoes         |Rs.1000 as a|        |
|    |       |        |          |         |(Ex. PW-68/F) |part of the |        |
|    |       |        |          |         |              |loot) (Ex.  |        |
|    |       |        |          |         |              |PW-68/G)    |        |
|    |       |        |          |         |              |            |        |

128.   Having  reproduced  the  chart,  now  we  shall  refer   to   certain
authorities on how a statement  of  disclosure  is  to  be  appreciated.  In
Pulukuri Kottaya v. Emperor[50], 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 permits  proof  of  so  much  of  the
information which is given by persons accused of  an  offence  when  in  the
custody of a police officer  as  relates  distinctly  to  the  fact  thereby
discovered,  irrespective  of  whether  such  information   amounts   to   a
confession or not. Under  Sections  25  and  26  of  the  Evidence  Act,  no
confession made to a police officer whether in custody or not can be  proved
as against the accused. But Section 27 is by  way  of  a  proviso  to  these
sections and a statement,  even  by  way  of  confession,  which  distinctly
relates to the  fact  discovered  is  admissible  as  evidence  against  the
accused in the circumstances stated in Section 27….”

130.        In Mohd. Inayatullah v. State of Maharashtra[52],  dealing  with
the scope and object of Section 27 of the Evidence Act, the Court held:
“12. The expression “provided that” together with  the  phrase  “whether  it
amounts to a confession or not” show that the section is in  the  nature  of
an exception to the preceding provisions particularly Sections  25  and  26.
It is not necessary in this case to consider if this section  qualifies,  to
any extent, Section 24, also. It will  be  seen  that  the  first  condition
necessary for bringing this section into operation is  the  discovery  of  a
fact, albeit a relevant fact, in consequence  of  the  information  received
from a person accused of an offence. The second is  that  the  discovery  of
such fact must be deposed to. The third is that at the time of  the  receipt
of the information the accused must be in police custody. The last  but  the
most important condition is that  only  “so  much  of  the  information”  as
relates distinctly to the fact thereby discovered is  admissible.  The  rest
of  the  information  has  to  be  excluded.  The  word  “distinctly”  means
“directly”, “indubitably”, “strictly”, “unmistakably”.  The  word  has  been
advisedly used to limit and define the scope of  the  provable  information.
The phrase “distinctly relates  to  the  fact  thereby  discovered”  is  the
linchpin  of  the  provision.  This  phrase  refers  to  that  part  of  the
information supplied by the accused which is the direct and immediate  cause
of the discovery. The reason behind this partial lifting of the ban  against
confessions and statements made  to  the  police,  is  that  if  a  fact  is
actually discovered in consequence of information given by the  accused,  it
affords some guarantee of truth of that part, and that  part  only,  of  the
information which was the  clear,  immediate  and  proximate  cause  of  the
discovery. No such guarantee or  assurance  attaches  to  the  rest  of  the
statement  which  may  be  indirectly  or  remotely  related  to  the   fact

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.
Crown[53]; Rex v. Ganee[54]). 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

131.        Analysing the earlier decisions, in Anter  Singh  v.   State  of
Rajasthan[56], 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.

(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

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.”

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 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.”
                                                         (emphasis supplied)

122. The approach of the Privy Council in the light of the above  exposition
of law can best be understood by referring to the statement made by  one  of
the accused to the police officer. It reads thus:

“… About 14 days ago, I, Kottaya and people of my  party  lay  in  wait  for
Sivayya and others at about sunset time at the corner of Pulipad  tank.  We,
all beat Beddupati China  Sivayya  and  Subayya,  to  death.  The  remaining
persons, Pullayya, Kottaya and Narayana ran away. Dondapati Ramayya who  was
in our party received blows on his hands. He had a spear in  his  hands.  He
gave it to me then. I hid it and my stick in the rick  of  Venkatanarasu  in
the village. I will show if you come. We did all this at the instigation  of
Pulukuri Kottaya.”

The Privy Council held that:

“14. The whole of that statement except the passage ‘I hid it (a spear)  and
my stick in the rick of Venkatanarasu in the village. I  will  show  if  you
come’ is inadmissible.”
                                                         (emphasis supplied)

There is another  important  observation  at  para  11  which  needs  to  be
noticed. The Privy Council explained the probative force of the  information
made admissible under Section 27 in the following words:

“Except in cases in which the  possession,  or  concealment,  of  an  object
constitutes the 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 another[58], Sunil Clifford Daniel v. State of  Punjab[59],  Ashok
Kumar Chaudhary and others v. State of Bihar[60], 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 untenable and a futile attempt to avoid the  incriminating
circumstance that is against the accused persons.

Test Identification Parade and the identification in Court

137.         Now,  we  shall  deal  with  the   various   facets   of   test
identification parade. Upon application moved by PW-80, SI Pratibha  Sharma,
Investigating  Officer,  PW-17,  Sandeep  Garg,   Metropolitan   Magistrate,
conducted the Test Identification Parade (TIP) for  the  accused  Ram  Singh
(since deceased), who refused to participate in the TIP proceedings  on  the
ground that he was shown to the witnesses  in  the  police  station.   Since
accused Ram Singh died during the trial, neither the  trial  court  nor  the
High Court delved into this aspect regarding  the  refusal  of  accused  Ram
Singh to participate in the TIP proceedings.

138.        On 19.12.2012,  PW-17,  Sandeep  Garg,  Metropolitan  Magistrate
initiated TIP proceedings for accused Vinay and Pawan, but they  refused  to
participate  in  the  TIP.   In  the  TIP  proceedings,   the   Metropolitan
Magistrate has recorded the following:-
“…………..accused Pawan Kumar  @  Kalu  and  accused  Vinay,  both  refused  to
participate in the TIP proceedings and stated  that  they  had  committed  a
horrible crime.  I recorded their refusal and gave certificate.”

139.        Vinay and Pawan refused to participate in  the  TIP  proceedings
without giving any reason whatsoever.  TIP of accused Mukesh  was  conducted
on 20.12.2012 at Tihar Jail by PW-17, Sandeep Garg, in which PW-1,  Awninder
Pratap, identified accused Mukesh.  In his testimony, the informant,   PW-1,
has identified his signature at point ‘A’ in TIP  proceedings  with  respect
to the accused Mukesh,           Ex.PW-1/E.  The High Court has pointed  out
that there was no serious  challenge  to  the  TIP  proceedings  of  accused
Mukesh in the cross-examination of the Metropolitan  Magistrate,  PW-17,  or
even the Investigating Officer, PW-80. TIP of accused Akshay  was  conducted
on 26.12.2012 at Central Jail No.4, Tihar Jail, where the  informant,  PW-1,
identified accused Akshay.  PW-1 identified his signature at  point  ‘A’  in
the TIP proceedings of accused Akshay  marked  as  Ex.PW-1/F.   The  accused
Mukesh and Akshay were already identified in  the  TIP  proceedings  by  the
informant. Test Identification Proceedings corroborate  and  lend  assurance
to the dock identification of accused Mukesh and Akshay  by  the  informant,

140.        Criticizing the TIP, it is urged by the learned counsel for  the
appellants  and  Mr.  Hegde,  learned  amicus  curiae,   that   refusal   to
participate may be considered as circumstance but it cannot by  itself  lead
to an inference of guilt.  It is also  argued  that  there  is  material  on
record to show that the informant had the opportunity  to  see  the  accused
persons after they were arrested.   It is necessary to state here  that  TIP
does not constitute substantive evidence.  It has been held in  Matru  alias
Girish Chandra v. State of Uttar Pradesh[62]  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:
“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. …”

144.        In Sidhartha  Vashisht  alias  Manu  Sharma  v.  State  (NCT  of
Delhi)[66], the Court, after referring to Munshi Singh Gautam  v.  State  of
M.P.[67], Harbhajan Singh v. State of J & K[68]  and  Malkhansingh  (supra),
came to hold that the proposition of law is quite clear that even  if  there
is no previous TIP, the court may  appreciate  the  dock  identification  as
being above board and more than conclusive.

145.        In the case at hand, the informant, apart from  identifying  the
accused who had made themselves available in the TIP,  has  also  identified
all of them in Court.  On a careful scrutiny of the evidence on  record,  we
are of the convinced opinion that it  deserves  acceptance.   Therefore,  we
hold that TIP is not dented.

Admissibility  and  acceptability  of   the   dying   declaration   of   the

146.        At this stage, it would be immensely seemly  to  appreciate  the
acceptability  and  reliability  of  the  dying  declaration  made  by   the
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.   Learned  senior  counsel  has  also
submitted that apart  from  the  inconsistencies,  the  numerous  procedural
irregularities in the recording of the declarations make it suspicious.   In
this regard, lack of an independent assessment of the mental fitness of  the
prosecutrix,  while  recording  the  second  dying  declaration,  has   been
highlighted. The multiple choice questions in  the  third  and  final  dying
declaration are being nomenclatured as leading questions and it is  asserted
that they  have  not  been  satisfactorily  explained  by  the  prosecution.
Further, the evidence by the doctors does not cure the impropriety  of  lack
of an independent assessment by the SDM while  recording  her  second  dying

149.        It is submitted that if at all any dying declaration  is  to  be
relied on, it should only be the first dying declaration made on  16.12.2012
and recorded by PW-49, Dr. Rashmi Ahuja,  and  the  said  dying  declaration
only states that there were 4 to 5  persons  on  the  bus.   It  is  further
stated that the prosecutrix was raped by a minimum of 2  men  and  that  she
does not remember intercourse after  that.   It  is,  therefore,  unsafe  to
proceed on the assumption that all six persons on  the  bus  committed  rape
upon the prosecutrix within a span of 21 minutes.

150.        Keeping the aforesaid criticism in view, we proceed  to  analyse
the acceptability and reliability of the dying declarations.  Firstly,  when
the prosecutrix was brought to the Gynae  Casualty  about  11:15  p.m.,  she
gave a brief account of the incident to PW-49, Dr. Rashmi Ahuja, in her  MLC
on 16.12.2012.  PW-49, Dr. Rashmi Ahuja, has deposed that on  the  night  of
16.12.2012 about 11:15 p.m., the prosecutrix was brought to the casualty  by
a PCR constable and that she gave a brief history of  the  incident.  PW-49,
Dr. Rashmi Ahuja, recorded the same  in  her  writing  in  the  Casualty/GRR
paper, i.e., Ex. PW-49/A.

151.        In the instant case, as per the history told by the  prosecutrix
to Dr. Rashmi Ahuja, it was a case of gang rape  in  a  moving  bus  by  4-5
persons when the prosecutrix was returning after watching a  film  with  her
friend.  She was slapped on her face, kicked on her abdomen and bitten  over
lips, cheek, breast and vulval region. She remembers intercourse  two  times
and rectal penetration also.  She was also forced to suck  their  penis  but
she refused. All this continued for half an hour and  then  she  was  thrown
off from the moving bus with her friend. We have already  stated  about  the
injuries which were noted by Dr. Rashmi Ahuja in Ex.PW-49/A.

152.        The relevant statement of the prosecutrix in  the  Medico  Legal
Expert, Ex.PW49/A, reads as under:
“… she went to watch movie with her boyfriend, Awnidra:  she left the  movie
at 8:45 PM and was waiting for bus at Munirka Bus stop where a bus going  to
Bahadurgarh, stopped and both climbed the bus at around  9  PM.   At  around
9:05-9:10 PM, around 4-5 people in the  bus  started  misbehaving  with  the
girl, took her to the rear side of bus while her boyfriend was taken to  the
front of bus, where both were beaten up badly.  Her clothes were  torn  over
and she was beaten up, slapped repeatedly over her face, bitten  over  lips,
cheeks, breast and Mons veneris.  She  was  also  kicked  over  her  abdomen
again and again. She was raped by at least minimum of two men, she does  not
remember intercourse after that.  She had  rectal  penetration.   They  also
forced their penis into her mouth and forced her to suck which  she  refused
and was beaten up instead.  This continued for half hour and  she  was  then
thrown away from the moving bus with her boyfriend.  She  was  taken  up  by
PCR Van and brought to  GRR.   She  has  history  of  intercourse  with  her
boyfriend about two months back. (willfully)”

153.        PW-49, Dr. Rashmi Ahuja, had noticed number of injuries  on  the
person of the prosecutrix and the same were noted in Ex. PW- 49/B as under:
|“Responding to verbal commands|bruise over Rt eye       |
|                              |covering whole of the    |
|                              |abrasion at Rt angle of  |
|                              |eye                      |
|Hairs had grasses in her hairs|bruise over left nostril |
|                              |involving upper lip      |
|                              |Both lips edematous      |
|Her wrapping sheet soaked in  |bleeding from upper lip  |
|blood                         |present                  |
|                              |Bite mark over right     |
|                              |chick & left chick       |
|                              |present                  |
|P-116/min radial feeble       |Left angle of mouth      |
|                              |injured (laceration)     |
|BP 100/60 mmhg, RR 18/min     |Both ears unremarkable   |
|Both upper limbs unremarkable |Rt breast-bite mark below|
|                              |areola present           |
|                              |                         |
|Left breast-bruise over Rt    |A tag torn vagina hanging|
|lower introits                |outside                  |
|Quadrant bite mark in inferior|P/S bleeding P/V ++ P/V  |
|                              |posterior vagina wall    |
|                              |                         |
|Quadrant P/A Guarding present |tear of about 7-8 cms.   |
|L/E cut mark (sharp) over Rt  |                         |
|labia                         |                         |
|                              |                         |
|L/E cut mark (sharp) over rt. |P/R Rectal tear of about |
|Labia present rest labia major|4 cm communicating with  |
|aid uninora                   |Vagina”                  |

154.        PW-50, Dr. Raj Kumar Chejara, and the surgery team operated  the
prosecutrix in the intervening night  of  16/17.12.2012  and  the  operative
findings have also been earlier noted.
155.        PW-50, Dr. Raj Kumar Chejara, has proved the OT notes as  Ex.PW-
50/A bearing the signature of Dr. Gaurav and his own note in this regard  is
Ex.PW-50/B. As per his opinion, the condition of the small and large  bowels
were  extremely  bad  for  any  definitive  repair.   After  performing  the
operation, the patient was shifted to ICU.  The  first  surgery  was  damage
control surgery and it was expected that unhealthy bowel would be there.
156.        The second surgery was performed  on  19.12.2012  by  him  along
with his operating team consisting of Prof. Sunil Kumar, Dr. Pintu  and  Dr.
Siddharth.  From the gynaecological side, Dr.  Aruna  Batra  and  Dr.  Rekha
Bharti were present along with  anaesthetic  team.   The  findings  were  as

“Abdominal findings:

Rectum was longtitudinally torn on  anterior  aspect  in  continuation  with
perineal tear.  This tear was continuing  upward  involving  sigmoid  colon,
descending colon which was splayed open.  The margin were edematous.   There
were multiple longitudinal  tear  in  the  mucosa  of  recto  sigmoid  area.
Transverse colon was also torn and gangrenous.  Hepatic flexture,  ascending
colon & caecum were gangrenous with multiple perforations  at  many  places.
Terminal ileum approximately one and a half  feet  loosely  hanging  in  the
abdominal cavity, it was avulsed  from  its  mesentry  and  was  non-viable.
Rest of the small bowel was non-existent with  only  patches  of  mucosa  at
places and borders of the mesentry  was  contused.   The  contused  mesentry
borders initially appeared (during 1st surgery) as contused small bowel.

Jejunostomy stoma was gangrenous for approximately 2cm.

Stomach and duodenum was distended but healthy.”

157.        Dying Declaration was recorded by SDM, Smt. Usha Chaturvedi, PW-
27, on 21.12.2012. The medical record of  the  prosecutrix  shows  that  the
prosecutrix was not found fit for recording  of  her  statement  until  21st
December, 2012 about 6:00 p.m. when the prosecutrix  was  declared  fit  for
recording statement  by  PW-52,  Dr.  P.K  Verma.  PW-52  had  examined  the
prosecutrix and found her to be fit, conscious,  oriented  and  meaningfully
communicative for making statement vide his  endorsement  at  point  ‘A’  on
application, Ex.PW-27/DB. The  second  dying  declaration,  Ex.PW-27/A,  was
recorded by PW-27, Smt. Usha Chaturvedi, SDM. This dying declaration  is  an
elaborate one where the prosecutrix has described  the  incident  in  detail
including the act of insertion of rod in her private parts. She also  stated
that the accused were addressing each  other  with  names  like,“Ram  Singh,
Thakur, Raju, Mukesh, Pawan and Vinay”.

158.          The   relevant    portion    of    the    dying    declaration
    Ex. PW-27/A recorded by PW-27, SDM, is extracted below:
“Q.1. What is your name, your father’s name and your residential address?

Ans. My name is prosecutrix and my father name is Sh. ………. and we reside  at

Q.2   Do you study or work some where?

Ans.  I have completed my BPT (Bachelor of Physiotherapy).

Q.3   On which date and place, the incident occurred?

Ans.  This happened on 16.12.12 in the midst of at about 9:00-9:15 p.m.

Q.4   Where had you gone on that day and how did  you  reach  the  place  of

Ans.  I had gone to watch the movie i.e. “Life  of  Pi”  6.40-8.30  p.m.  to
Select City Mall, Saket on the day of incident  along  with  my  friend  Sh.
Awninder S/o. Sh. Bhanu Pratap, R/o House No.14, Bair Sarai,  New  Delhi-16.
We took an Auto Rikshaw from there and reached Munirka.

Q.5   How did you go further?

Ans.  After that, I saw white colored bus whose conductor had  been  calling
the passengers of Palam Mor and Dwarka. I had to go to Dwarka,  Sec-1.  That
is why both of us, I and my friend boarded the bus and  gave  twenty  rupees
(Rs. 20/-) at the fare of Rs.10/- per passenger.

Q.6.  Were there passengers inside the bus?

Ans.  When  I entered the bus there were 6-7 passengers.  Assuming  them  to
be passenger, we sat outside the cabin of the bus.

Q.7   Provide the detailed information about the bus?

Ans.  The bus was of the white colour and the seats were of the red  colour.
Yellow coloured curtains were fixed. The glasses of the bus were  black  and
were closed.  I could see outside from inside  but  nothing  could  be  seen
inside from outside. In one row of the bus there were two seats and  in  the
other row, there were three seats.

Q,8   After entering the bus, did you suspect  anything  seeing  the  people
occupying the seats there?

Ans.  I had suspected (something amiss) but the conductor had already  taken
the (fare) money and the bus had started. So, I kept sitting there.

Q.9   What did happen afterwards? Please inform in detail.

Ans.  After five minutes when the bus climbed the bridge  of  Malai  Mandir,
the Conductor closed the door of the bus and switched off the  light  inside
the bus.  And they came to my friend and started hitting  and  beating  him.
Three four (3-4) people caught hold of him and the remaining people  dragged
me to the rear portion of the bus and tore off my clothes and took turns  to
rape me. They hit me on my stomach with an iron rod and bit me on  my  whole
body. Prior to that, they snatched from me and my friend  all  our  articles
i.e. mobile phone, purse, credit card, debit card, watches, etc. All six  of
the persons committed oral, vaginal, anal rape on me. These people  inserted
the iron rod into my body through my vagina and rectum and  also  pulled  it
out. They extracted the internal private part of my body  through  inserting
hand and iron rod into my private parts and caused hurt to me.  Six  persons
kept committing rape on me for approximately one hour by turns. The  drivers
kept changing in the moving bus so that they can rape me.
PW-27  Usha  Chaturvedi,  SDM,  when  examined  and   recorded   the   dying
declaration of prosecutrix come off in her dying declaration  she  state  as

159.        The clinical  notes,  Ex.PW-50/C,  and  notes  prepared  by  the
gynaecology team were proved as Ex.PW-50/D. The  gynaecological  notes  were
prepared on actual examination of the patient on the operation table  during
the surgery. PW-50  further  operated  the  prosecutrix  on  23.12.2012  for
peritoneal lavage and placement of drain under general anaesthesia  and  his
notes are Ex.PW-50/E.

160.        Statement of  the  prosecutrix  was  recorded  by  PW-30,  Pawan
Kumar,  Metropolitan  Magistrate,  vide  Ex.PW-30/D.   On   24.12.2012,   an
application for recording the statement of  the  prosecutrix  under  Section
164 CrPC was moved by the  Investigating  Officer,  which  is  exhibited  as
Ex.PW-30/A and, thereafter, the learned Metropolitan  Magistrate  fixed  the
date  for  recording  of  the  statement  as  25.12.2012  at  9:00  a.m.  at
Safdarjung Hospital vide his endorsement at Point “P” to “P-1”  on  Ex.  PW-
30/A. On 25.12.2012, PW-28, Dr. Rajesh Rastogi, at 12:40 p.m., declared  the
prosecutrix fit for recording statement  through  gestures.  She  was  found
conscious,   oriented,   co-operative,    comfortable    and    meaningfully
communicative to make a statement through non-verbal gestures.

161.            On     25.12.2012,     the     prosecutrix’s      statement,
Ex.PW-30/D, under Section 164 CrPC  was  recorded  by  PW-30,  Pawan  Kumar,
Metropolitan Magistrate, in the form of questions by  putting  her  multiple
choice questions. This statement was made  through  gestures  and  writings.
The statement recorded  by  PW-30  which  ultimately  became  another  dying
declaration reads as under:
“25/12/2012  at  01.00  p.m.  at  ICU  Safdarjung  Hospital.  Statement   of
Prosecutrix (Name and Particulars  withheld)  As  opined  by  the  attending
doctors the Prosecutrix is not in position to speak  but  she  is  otherwise
conscious and oriented and responding by way of gestures, so  I  am  putting
question in such a manner so as to enable to narrate the incident by way  of
gesture or writing.

Ques. : When and at what time the incident happened?
1. 20/12/2012  2. 13/12/2012  3. 16/12/2012

Ans : 16/12/12 (by writing after taking time)

Ques.: Have you seen the staff of the bus?
1. Yes 2. No

Ans.: 1 yes by gesture (nodding her head)

Ques.: Have you seen those people at that time?
1. Yes 2. No

Ans.: 1

Ques.: By which article they have given beatings? (answer by writing)

Ans.: By iron rod which was long.

Ques.: What happened of your belongings means mobile etc.?
1. Fell down  2. Snatched by them  3. Don‘t know

Ans.: 2

Ques.: Besides rape where and how  did  you  get  the  injuries?  (tried  to
answer by writing)

Ans.: Head, face, back, whole  body  including  genital  parts  (by  gesture

Ques.: By which names they were addressing to each other? (tried  answer  by

Ans.: 1. Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju.

Ques.: What did they do after rape?
Left at home 2. Threw at unknown place 3. Got down at some other bus stop.

Ans: 2”

As per Ex. PW-30/D, this answer was written by the prosecutrix  in  her  own

162.        On 26.12.2012, the condition of  the  prosecutrix  was  examined
and it was decided to shift her abroad for further treatment. Notes in  this
regard are Ex.PW-50/F bearing the signatures of Dr.  Raj  Kumar,  Dr.  Sunil
Kumar, Dr. Aruna Batra and Dr. P.K. Verma.
163.        The prosecutrix died at Mount Elizabeth Hospital,  Singapore  on
29.12.2012 at 4:45 a.m.  The cause of death is stated as sepsis  with  multi
organ failure following multiple injuries, as is evincible from Ex.PW-34/A.
164.         Learned  counsel  for  the  appellants  have  objected  to  the
admissibility of the dying declarations available on record  mainly  on  the
ground that they are not voluntary  but  tutored.  It  is  argued  that  the
second and third dying declarations are nothing but a  product  of  tutoring
and are non-voluntary and the only statement recorded is the MLC,  Ex.PW49/A
and Ex.  PW49/B,  prepared  immediately  after  the  incident,  wherein  the
prosecutrix has neither named any of the accused nor  mentioned  the  factum
of iron rod being used by the accused persons and the act of the accused  in
committing unnatural offence. It is further  alleged  that  the  prosecutrix
could not have given such a lengthy  dying  declaration  running  upto  four
pages on 21.12.2012 as she was on oxygen support.  PW-27  has  deposed  that
the prosecutrix was on oxygen support at the time of  recording  the  second
dying declaration.  It is further contended  that  it  must  be  taken  into
account that ever since the prosecutrix was admitted to  the  hospital,  she
was  continuously  on  morphine  and,  thus,  she  could  not  have   gained
consciousness. The second dying declaration has  been  further  assailed  on
the ground of being recorded at the behest  of  SDM,  PW-27,  instead  of  a
Magistrate and that too after a delay of nearly four days. The  third  dying
declaration, Ex.PW-30/D, recorded by the Metropolitan Magistrate, PW-30,  on
25.12.2012 through gestures and writings is controverted  by  putting  forth
the  allegations  of  false  medical  fitness  certificate  and  absence  of

165.         Another  argument  advanced  by  the  lerned  counsel   raising
suspicion on the genuineness of the second and third dying  declarations  is
that the dates on which the  dying  declarations  were  recorded  have  been
manipulated. The counsel asseverated  that  the  second  dying  declaration,
i.e., Ex.PW-27/A, purported  to  have  been  recorded  by          PW-27  on
21.12.2012 was, in fact, recorded on the previous day as evidenced from  the
overwriting of the date in                    Ex. PW-27/B. The counsel  also
pointed to the overwriting of the  date  in  the  third  dying  declaration,
i.e., Ex. PW-30/C, recorded by PW-30. It is  propounded  by  them  that  the
date was modified thrice in order to fit in the fake chain of  circumstances
contrived by the prosecution.

166.        Resisting the  said  submissions,  Mr.  Luthra,  learned  senior
counsel  for  the  State,  astutely  contended  that  all  the  three  dying
declarations recorded at the instance of the prosecutrix are consistent  and
well corroborated by medical evidence as well as by  PW-1’s  testimony,  and
other scientific evidence. The prosecutrix’s first statement,  Ex.  PW-49/A,
given to PW-49 was only a brief account of the heinous act committed on  her
and in that state of shock, nothing more could be legitimately  expected  of
her.  Only after receiving  medical  attention,  she  was  declared  fit  to
record statement and on 21.12.2012, PW-52 had examined the  prosecutrix  and
found her to be fit, conscious, oriented and meaningfully communicative  for
making statement vide his endorsement at point  ‘A’  on  application  Ex.PW-
27/DB. PW-27, Smt. Usha Chaturvedi, SDM, recorded  her  statement  in  which
the prosecutrix described the incident in detail and also named the  accused
persons.  In fact,  PW-27  has  also  deposed  before  the  court  that  the
prosecutrix was  in  a  fit  mental  condition  to  give  the  statement  on
21.12.2012. Moreover, the prosecutrix’s third statement,  Ex.PW-30/D,  which
was recorded in question-answer form through gestures and  writings  by  PW-
30, Pawan Kumar, Metropolitan Magistrate, is  consistent  with  the  earlier
two dying declarations and that adds to  the  credibility  and  conclusively
establishes reliability.

167.          In   the   first   dying   declaration    made    to    PW-49,
   Dr. Rashmi Ahuja, recorded in Ex.PW-49/A and in MLC, Ex.PW-49/B,  due  to
her  medical  condition,  though  the  prosecutrix  broadly  described   the
incident of gang rape committed on her and injuries caused to her and  PW-1,
yet she failed to vividly describe the incident of inserting iron rod,  etc.
 As soon as the prosecutrix was brought to the hospital, she  gave  a  brief
description of the incident to PW-49, Dr. Rashmi Ahuja.  As it appears  from
the record, the prosecutrix had lost sufficient quantity  of  blood  due  to
which she was drowsy and could only give a brief  account  of  the  incident
and injuries caused to her and the informant.  Even though  the  prosecutrix
has given only a brief account of the occurrence, yet she was responding  to
verbal  command  and  hence,  the  same  is  natural  and  trustworthy   and
furthermore,  Ex.  PW-49/A  is  also  consistent  with   the   other   dying

168.        By virtue of the second dying  declaration  recorded  as  Ex.PW-
27/A on 21.12.2012 about 9:10 p.m. by the SDM,  Smt.  Usha  Chaturvedi,  the
exact details of the incident and the injuries  caused  to  the  prosecutrix
have come on record.   The  learned  SDM  has  satisfied  herself  that  the
prosecutrix was fit  to  make  the  statement.  While  recording  the  dying
declaration of the prosecutrix, Ex.PW-27/A, Dr. P.K Verma, PW-52, had  found
her conscious, oriented and meaningfully communicative vide his  endorsement
at point ‘A’ on the application, Ex.PW-27/DB. It was  only  thereafter  that
PW-27, Smt. Usha Chaturvedi, SDM, recorded  the  statement,  Ex.PW-27/A,  of
the prosecutrix. The prosecutrix not only signed it but even wrote the  date
and time in this statement. She narrated the entire incident specifying  the
role of each accused;  gang  rape/unnatural  sex  committed  upon  her;  the
injuries caused in her  vagina  and  rectum  by  use  of  iron  rod  and  by
inserting of hands by the accused;  description  of  the  bus,  robbery  and
lastly throwing of both the victims out of the moving bus, Ex.P1,  in  naked
condition at the footfall of Mahipalpur flyover.

169.        As it appears  from  the  record,  PW-27,  after  recording  the
statement of the prosecutrix, as contained  in   Ex.PW-27/A,  forwarded  the
statement alongwith the forwarding letter, Ex. PW-27/B, to the  ACP,  Vasant
Vihar undersigned by herself. Ex. PW-27/A, which contains the  statement  of
the prosecutrix, is duly signed by the prosecutrix  on  all  the  pages  and
also signed by PW-27, SDM.  PW-27  has  certified  in  Ex.PW-27/A  that  the
signature of the prosecutrix was obtained in her presence at  9:00  p.m.  on
21.12.2012 after which she has signed the same. No overwriting  of  date  is
evidenced in Ex.PW-27/A. However, so far as  the  forwarding  letter,  i.e.,
Ex.PW-27/B, is concerned, the date mentioned  by  PW-27  after  putting  her
signature is overwritten as 21.12.2012. When cross-examined on this  aspect,
PW-27 has stated that she  had  herself  overwritten  the  date  and,  thus,
overruled the possibility of  any  falsification  of  the  document  at  the
behest of the investigating team. PW-27 explained the  overwriting  of  date
as a ‘human error’ and the same has been  rightly  construed  by  the  trial
court and accepted  by  the  High  Court  as  a  complete  explanation.  The
relevant statement of PW-27 is as under:
“It is correct that in Ex.PW27/B there is an over writing on the date  under
my signature. VOL: It was a human error. The statement was recorded  on  21-
12-2012, so for all purpose this date will be 21-12-2012.”

170.        Agian  on  25.12.2012  on  an  application,          Ex.PW-28/A,
though Dr. P.K Verma, PW-52, opined  that  the  prosecutrix  was  unable  to
speak as she was having endotracheal tube, i.e, in larynx  and  trachea  and
was on ventilator, yet  PW-28,  Dr.  Rajesh  Rastogi,  declared  her  to  be
conscious,  oriented  and  meaningfully  communicative  through   non-verbal
gestures and fit to give statement.        PW-30, Pawan Kumar,  Metropolitan
Magistrate,  also  satisfied  himself  qua  fitness  and  ability   of   the
prosecutrix to give rational answers by  gestures  to  his  multiple  choice
questions. The opinion of the doctors obtained prior  to  recording  of  the
statements, Ex.PW-27/A and Ex.PW-30/D-1, as also the  observations  made  by
the SDM and Metropolitan Magistrate qua her fitness  cannot  be  disregarded
completely on  the  basis  of  surmises  of  the  learned  counsel  for  the

171.        Adverting to the third dying  declaration,  Ex.PW-30/C,  we  are
able to  appreciate  that  PW-30,  after  recording  the  statement  of  the
prosecutrix,  has  signed  the  document.  The  date  mentioned  therein  is
overwritten  as  25.12.2012.  However,  in  the  forwarding  note   to   the
investigating  officer  which  is   contained   in   continuation   of   the
prosecutrix’s statement annexed as  Ex.  PW-30/C,  the  signature  and  date
mentioned by PW-30 is very clear and  no  overwriting  is  visible.   Be  it
noted, PW-30 was never cross-examined on the aspect of  overwriting  of  the
date in Ex.PW-30/C. The learned counsel has,  for  the  first  time,  raised
this issue before us merely to substantiate his  suspicion  of  manipulation
on the part of the prosecution.  We  hold  that  pointing  at  insignificant
errors is  inconsequential  so  far  as  cogent  evidence  produced  by  the
prosecution stand on a terra firma. It is beyond human prudence  to  discard
the detailed and well signed statements of  the  prosecutrix,  in  spite  of
clear date put by herself, merely because PW-30 erred at one point  of  time
in correctly recording the date. Moreover, the testimony of PW-52, Dr.  P.K.
Verma, who was   incharge of the ICU and in  whose  supervision  the  entire
treatment and recording of statements by the prosecutrix  was  done,  cannot
be discarded on account of meagre technical errors.

172.        Another line of argument developed by  the  learned  counsel  is
that there has been failure on the part of the prosecutrix to  disclose  the
names of any of the accused persons in the brief history  given  by  her  to
the doctor in MLC, Ex.PW-49/A, and so, her  dying  declarations,  Ex.PW-27/A
and Ex.PW-30/D-1, where she had given the names of the accused persons,  are
tutored versions and cannot form the basis  of  conviction.  This  argument,
however, is completely unjustified in the light of the medical condition  of
the prosecutrix when she was brought to the hospital. As  per  the  records,
the prosecutrix was brought to the hospital in a state of  sub-consciousness
and sheer trauma. In her MLC, Ex.PW-49/B,  her  condition  is  described  as
drowsy responding only to verbal commands and hence,  not  completely  alert
due to the shock and excessive loss of blood. The prosecutrix  was  declared
fit to make statements, Ex.PW-27/A  and  Ex.PW-30/D-1,  only  when  she  was
operated thrice. Her dying declarations, Ex.PW-27/A and  Ex.PW-30/D-1,  also
stand corroborated by the medical evidence as well as the testimony  of  PW-

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  Maharashtra[69],
the law relating to dying declaration was succinctly put  in  the  following
“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 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  Delhi[70],  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  Nadu[72],
has exhaustively laid down the following  guidelines  with  respect  to  the
admissibility of dying declaration:
“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

(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

(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

(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 Pradesh[74], 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 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 Haryana[75] 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]  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 Pradesh[77] 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  assailants  if  he
had recognised the assailants. In the instant case there is no  occasion  to
hold that the deceased was not in a  position  to  identify  the  assailants
because it is nobody’s case that the  deceased  did  not  know  the  accused
persons. It is therefore quite likely  that  on  being  asked  the  deceased
would name the assailants. In the facts and circumstances of  the  case  the
High Court has accepted the dying declaration and we do not think that  such
a finding is perverse and requires to be interfered with. …”

179.        In Vijay Pal v. State (Government of NCT  of  Delhi)[78],  after
referring to the Constitution Bench decision in Laxman (supra) and the  two-
Judge Bench decisions in Babulal (supra)  and  Prakash  (supra),  the  Court
“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

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 Gujarat[79] 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 Singh[80], a two-Judge Bench placed reliance  on
the dying declaration of the deceased who had suffered  100%  burn  injuries
on the ground that the dying declaration was found to be credible.”

180.        In the case at hand, the first statement of the prosecutrix  was
recorded by PW-49, Dr. Rashmi Ahuja, on the  night  of  16.12.2012  and  the
second statement was recorded by the SDM on  21.12.2012  after  a  delay  of
five days. In the present facts and circumstances of the  case,  we  do  not
find that there is any inconsistency in  the  dying  declarations  to  raise
suspicion as to the genuinity and  voluntariness  of  the  subsequent  dying
declarations. The prosecutrix had been under constant medical attention  and
was reported to be fit for giving a statement on  21.12.2012  only.  On  the
night of the incident itself, she underwent first surgery conducted  by  PW-
50, Dr. Raj Kumar  Chejara,  Surgical  Specialist,  Department  of  Surgery,
Safdarjung Hospital, New Delhi and his surgery team comprising  of  himself,
Dr. Gaurav and Dr. Piyush, and the  prosecutrix  was  shifted  to  ICU.  The
second surgery was performed on her  on  19.12.2012.  Ex.PW-50/C,  OT  notes
dated 19.12.2012 show that the prosecutrix was put on ventilation after  the
surgery. Considering the facts and  circumstances  and  the  law  laid  down
above, a mere omission on the part of the prosecutrix to  state  the  entire
factual details of the incident in her very first statement  does  not  make
her subsequent statements unworthy, especially when her statements are  duly
corroborated by other prosecution witnesses including the medical evidence.

181.        The  contention  that  no  dying  declaration  could  have  been
recorded on 21.12.2012 as the prosecutrix  was  administered  morphine  does
not hold good as PW-52, Dr.  P.K.  Verma,  has  deposed  that  morphine  was
injected at 6:00 p.m. on 20.12.2012 and its effect  would  have  lasted  for
only 3-4 hours. PW-52 has denied that the prosecutrix  was  unconscious  and
had difficulty in breathing at the time when she made the statement  to  PW-
27, SDM, on 21.12.2012.

182.        Yet another objection raised by the the learned counsel for  the
appellants  concerning  the  medical  fitness  of  the  prosecutrix,   while
recording the third dying  declaration  is  that  when  PW-30,  Metropolitan
Magistrate, Pawan Kumar, recorded the dying declaration of the  prosecutrix,
she was not in a position to speak as per the  endorsement  made  by  PW-52,
Dr. P.K. Verma, and, therefore, no weight could be  attached  to  the  dying
declaration recorded by        PW-30. In this  regard,  reliance  is  placed
upon Ex.PW-30/B1. This contention was raised before the High Court  as  well
as the trial court and while considering the contention, we find that:

“On 25.12.2012, application [Ex.PW-30/B]  moved  by  P.W.-80  S.I.  Pratibha
Sharma between 9:30 a.m. to 10:00 a.m. seeking opinion regarding fitness  of
prosecutrix to get statement recorded.  Pw-52 Dr. P.K.  Verma  examined  the
prosecutrix and opined at 12:35 p.m. that “patient has endotracheal tube  in
place (i.e. in her larynx and trachea) and was on ventilator and  hence  she
could not speak”.

183.        PW-28, Dr. Rajesh Rastogi, opined vide Ex.PW-28/A at 12:40  p.m.
on 25.12.2012 that the prosecutrix was conscious, cooperative,  meaningfully
communicative  through  non-verbal  gestures,  oriented  and  fit  to   give
statement. PW-28, Dr. Rajesh Rastogi, examined  the  prosecutrix  around  12
noon and finished it by 12:00-12:30 p.m. On 25.12.2012 at  12:35  p.m.,  Dr.
P.K. Verma had endorsed on the document  Exhibit  PW-30/B  that  the  victim
could not speak as she had endotracheal tube in place (that  is,  in  larynx
and trachea) and was on ventilator. However, subsequently, at 12:40 p.m.  on
the same day, PW-28, Dr. Rajesh Rastogi, had endorsed on the said  document,
Ex.PW-30/B, to the  effect  that  the  victim  was  conscious,  cooperative,
meaningfully  communicative,   oriented,   responding   through   non-verbal
gestures and fit to give statement. The learned counsel  contended  that  it
is inconceivable that the prosecutrix who was  on  life  support  system  at
12:35 p.m. could be opined to be conscious,  cooperative  and  fit  to  give
statement within five minutes, i.e., at 12:40 p.m.

184.        The said contention, as we find, has  been  appropriately  dealt
with by both courts below by adverting to  the  depositions  of  PW-52,  Dr.
P.K. Verma,  and  PW-28,  Dr.  Rajesh  Rastogi.  Regarding  the  fit  mental
condition of the prosecutrix and as to the different  endorsements  made  by
PW-52, Dr. P.K. Verma, and  PW-28,  Rajesh  Rastogi,  PW-52  was  questioned
suggesting that the prosecutrix was not in a fit mental  condition  to  give
the dying declaration. PW-52 has clearly deposed  in  his  cross-examination
that he had never endorsed that the victim was unfit to  give  statement  at
12:35 p.m., rather he had said that she was on ventilator and  hence,  could
not speak. The aforesaid explanation of  PW-52,  Dr.  P.K.  Verma,  who  was
incharge of the ICU in Safdarjung Hospital at the  relevant  time  makes  it
limpid that even though the prosecutrix was not able to speak, yet  she  was
conscious and oriented and was in  a  position  to  make  the  statement  by

185.        The contention that the third  dying  declaration  made  through
gestures  lacks  credibility  and  that  the  same  ought   to   have   been
videographed, in our view, is totally sans substance. The dying  declaration
recorded on the basis of 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
“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.”

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 declaration is able  to
notice correctly as to what the declarant means by answering by gestures  or
nods. In the present case, this caution was aptly taken, as the  person  who
recorded  the  prosecutrix’s  dying   declaration   was   the   Metropolitan
Magistrate and he was satisfied himself as regards the mental alertness  and
fitness of the prosecutrix,  and  recorded  the  dying  declaration  of  the
prosecutrix by noticing her gestures and by her own writings.

189.        Considering the facts and circumstances of the present case  and
upon appreciation of the evidence and the material on record, in  our  view,
all the three dying declarations are consistent with  each  other  and  well
corroborated with other evidence and the trial court as  well  as  the  High
Court has correctly placed reliance  upon  the  dying  declarations  of  the
prosecutrix to record the conviction.

Insertion of the iron rod:
190.        Presently, we shall advert to the contentions raised as  regards
the use of iron rod for  causing  recto-vaginal  injury.  The  case  of  the
prosecution is that the accused, in  most  inhumane  and  unfeeling  manner,
inserted iron rod in the rectum and vagina of the prosecutrix and  took  out
the internal organs of the prosecutrix from the  vaginal  and  anal  opening
while pulling out the said iron  rod.   They  also  took  out  the  internal
organs of the prosecutrix by  inserting  iron  rod  in  the  vagina  of  the
prosecutrix thereby causing dangerous injuries.  Two  iron  rods,  Ex.P-49/1
and  Ex.P-49/2,  were  recovered  vide  seizure  memo  Ex.PW-74/G   by   the
Investigating Officer, PW-80, at the instance of accused  Ram  Singh  (since
deceased).  As per  Ex.PW-49/A,  the  internal  injuries  sustained  by  the
victim were like vaginal tear, profused bleeding from  vagina,  rectal  tear
communicating with vaginal tear and other injuries.

191.        PW-50, Dr. Raj Kumar Chejara, and the surgery team operated  the
prosecutrix in the intervening night  of  16/17.12.2012  and  the  operative
findings are as under:
collection of around 500ml of blood in peritoneal cavity
stomach pale,
duodenum contused
jejunum  contused  &  bruised  at  whole  of  the  length  and  lacerated  &
transected  at  many  places.   First  transaction  was  5cm  away  from  DJ
junction.  Second one  was  2  feet  from  the  DJ,  after  that  there  was
transaction and laceration at many places.  Jejunal  loop  was  of  doubtful
viability. Lieum – whole lieum was totally contused and it was  of  doubtful
viability. Distanl lieum was completely detached from the mesentry till  ICJ
(ileocaecal junction).  It was completely devascularized.
Large  bowel  was  also  contused,  bruised  and  of   doubtful   viability.
Descending colon was lacerated vertically downward in such a manner that  it
was completely opened.
Sigmoid colon & rectum was lacerated at many places.  Linearlyu, mucosa  was
detached completely at places, a portion of it around  10cm  was  prolapsing
through perineal wound.
Liver and spleen was normal.
Both sides retro  peritoneal  (posterior  wall  of  the  abdomen)  haematoma
Mesentry and omentum was totally contused and bruised.
Vaginal tear present, recto vaginal septum was completely torn.

192.        PW-80, SI Pratibha Sharma, the  Investigating  Officer,  deposed
before the trial court that accused Ram Singh had led her  inside  the  bus,
Ex.P1 and had taken out two iron rods from the shelf of the driver's  cabin.
 One of the  rods,  59  cm  in  length,  was  primarily  used  for  changing
punctured tyres; it was hooked from one end and  chiseled  from  the  other.
It also had multiple serrations on both the ends.   The  other  rod  was  of
silver colour, hollow and 70 cm long.  This rod formed part of  a  hydraulic
jack and was used as its lever, Ex.PW49/G.  The rods were blood stained  and
the recovered rods were sealed with the seal of PS  and  were  deposited  in
the Malkhana. On 24.12.2012, the said iron rods along with the  sample  seal
were sent to CFSL, CBI for examination through SI Subhash,  PW-74,  vide  RC
No. 178/21/12, proved as Ex.PW-77/R. The DNA report  prepared  by  Dr.  B.K.
Mohapatra,  PW-45,  suggests  that  the  DNA  profile  developed  from   the
bloodstains from both the iron rods is consistent with the  DNA  profile  of
the prosecutrix.
193.        Mr. Sharma, learned counsel for the  appellants,  has  countered
the prosecution case on the use of iron rods. He has drawn support from  the
medical records and the testimony of the witnesses as also  the  prosecutrix
to assert the aforesaid submission. He  submits  that  the  prosecution  has
fabricated the story as regards  the  use  of  iron  rods  only  to  falsely
implicate all the accused in the death of the prosecutrix.  The defence  has
refuted the use of  iron  rods  by  the  accused  on  the  ground  that  the
informant as well as the prosecutrix did not mention about the use  of  iron
rods in their first statements. The main contention of the accused  is  that
the prosecutrix herself, in her first statement given to Dr.  Rashmi  Ahuja,
PW-49, Ex. PW-49/A, failed to disclose the use of iron rods.  He  relies  on
the absence  of  the  words  ‘iron  rods’  in  Ex.PW-49/A  to  fortify  this
submission. He contends that as recorded by PW-49, the prosecutrix was in  a
fit  state  of  mind  for  she  even  gave  her  residential  address  after
undergoing the traumatic experience, but she  failed  to  mention  that  the
accused persons also used the iron rods on her, a fact that would  have  had
a bearing on her treatment.
194.        The aforesaid proponement is not sustainable as MLC,  Ex.PW49/A,
of the prosecutrix suggests that she  was  brought  to  the  hospital  in  a
traumatized state with grievous injuries and she was cold and clammy,  i.e.,
whitish (due to vasoconstriction) and had lost a lot of blood. As per Ex.PW-
49/A, the prosecutrix was sure of intercourse to have been  committed  twice
along with rectal penetration whereafter she did not  remember  intercourse.
It is worthy to note that she  was  oscillating  between  consciousness  and
unconsciousness at the time of the incident and there was  loss  of  lot  of
blood by the time she had reached the hospital which  is  evident  from  Ex.
PW49/B-MLC.  A  victim  who  has  just  suffered  a  ghastly  and  extremely
frightening incident cannot be expected  to  immediately  come  out  of  the
state of shock and state the finest details of the incident. The  subsequent
dying declarations of the prosecutrix corroborated by the  medical  evidence
cannot be disregarded merely on the ground that the use of iron rods is  not
substantiated by the prosecutrix’s first statement.

195.        The gravity and  hideousness  of  the  injuries  caused  to  the
prosecutrix, as has already been discussed above, clearly shows the  use  of
iron rods by  the  accused.  The  injuries  caused  to  the  prosecutrix  by
incessantly and abominably injuring her private parts  using  the  concerned
iron rods were so grave  that  death  was  the  inevitable  consequence.  As
already noted, both the iron rods, Ex.P-49/1 and Ex.P-49/2,  were  recovered
at the instance of accused Ram Singh from inside the concerned bus. The  DNA
profile developed from the blood stains obtained from the iron rods is  also
consistent with the DNA profile of the prosecutrix. In  such  circumstances,
merely because the finger prints of the accused were not obtained  from  the
iron rods, it cannot be concluded that the accused were not linked with  the
concerned iron rods. Accused Ram Singh himself had the iron  rods  recovered
to the Investigating Officer.  Furthermore, the  dying  declaration  of  the
prosecutrix, which is highly reliable, clearly  establishes  the  horrendous
use of iron rods by the accused persons.

196.        The iron rods were sent for forensic examination  to  the  CFSL.
The DNA profile developed from the blood stains obtained from the iron  rods
recovered at the instance of accused Ram Singh was found  to  be  of  female
origin and were  found  to  be  consistent  with  the  DNA  profile  of  the
prosecutrix. Hence, the factum of insertion of  iron  rods  in  the  private
parts of the prosecutrix is also fortified by the scientific evidence.

197.        PW-1, in his chief examination, deposed  that  he  was  severely
assaulted by the accused with iron rods on his head  and  the  rest  of  his
body.  It is submitted that as per MLC of PW-1, Ex.PW-51/A,  the  nature  of
injuries sustained by PW-1 were simple. It is contended  that  if  PW-1  was
beaten with the iron rod in  the  manner  alleged  by  him,  he  would  have
sustained more serious injuries. It is canvassed that  PW-1  sustained  only
simple injuries which leads to an inference that the iron rod was  not  used
in the manner stated by the prosecution. Of course, as per Ex.PW-51/A,  PW-1
sustained simple injuries but as seen from Ex.PW-51/A, there was also  nasal
bleeding from his nose and PW-1 was  also  vomiting.    Merely  because  the
injuries sustained by PW-1 were opined to be of simple nature,  the  use  of
iron rods cannot be doubted.

198.        Learned counsel for  the  appellants  further  stressed  on  the
point that PW-1 neither in his MLC,  Ex.  PW-51/A,  nor  in  his  complaint,
Ex.PW1/A, mentioned the use of iron rod;  the  description  of  bus  or  the
names of the accused.  In this regard, it has to be kept in  mind  that  the
purpose of FIR is mainly to set the criminal law in motion and  not  to  lay
down every minute detail and the entire gamut of the  evidence  relating  to
the case and, therefore, non-mention of use of iron rods  in  the  FIR  does
not remotely create a  dent  in  the  case  of  the  prosecution.  When  the
subsequent statements of the prosecutrix well corroborated  by  the  medical
evidence are available, it is completely immaterial that  the  statement  of
PW-1 does not mention the use of iron rods. Thus, PW-1’s omission  to  state
the factum of use of iron rods in his complaint or MLC is not fatal  to  the
case of the prosecution.

199.        It is apposite to state here that  non-mention  of  the  use  of
iron rods in  PW-1’s  statement  has  been  a  ground  for  giving  rise  to
suspicion of his testimony. We find it difficult to comprehend as to how PW-
1 could have been aware of any use of iron rods against the prosecutrix. PW-
1 was being held by the accused towards the front  of  the  bus,  while  the
prosecutrix was being raped at the rear side of the bus and  the  lights  of
the bus also had been turned off. His statement  in  his  complaint,  Ex.PW-
1/A, that he heard the prosecutrix shouting and crying and  that  her  voice
was oscillating is consistent with  the  narration  of  facts  as  also  the
medical records.

200.        The second statement of the prosecutrix recorded  in  Ex.PW-27/A
by PW-27, Smt. Usha Chaturvedi, has  detailed  the  account  of  the  entire
incident specifying the  role  of  each  accused;  gang  rape/unnatural  sex
committed upon her; and the injuries caused in her vagina and rectum by  use
of iron rod and by inserting of hands by the  accused  are  mentioned.  This
statement, in fact, bears the date and  signature  of  the  prosecutrix  and
records that the accused committed gang rape on her, inserted  iron  rod  in
the vagina and through anal opening causing injuries to the internal  organs
of the  prosecutrix.  The  subsequent  statement  of  the  prosecutrix  also
affirms the above facts. That apart, as per the medical  opinion  Ex.PW-49/G
given by PW-49, the recto-vaginal injury of the prosecutrix could be  caused
by the rods recovered from the bus.

Anatomy argument
201.        Learned counsel for the appellants also submitted  that  if  the
rods purported to be used had actually been inserted through the vagina,  it
would have first destroyed the uterus  before  the  intestines  were  pulled
out.  It was submitted that there were  no  rods  related  injuries  in  her
uterus and medical science too does not  assist  the  prosecution  in  their
claim that the iron rods were used as a weapon for penetration.  Mr.  Sharma
placed reliance on:
1.    the first OT notes, Ex. PW-50/A that were  made  following  the  first
operation of the prosecutrix on  17.12.2012  and  where  the  following  was

“uterus, B/L tubes and ovaries seen and healthy”

2.    the case sheet of the operation conducted on 19.12.2012, presented  as
Ex. PW-50/D, wherein the following was recorded:
“Gynae findings

... Cx, vaginal vault and ant vaginal wall (H) ...”

3.    the post-mortem report,  Ex.  PW-34/A,  that  was  prepared  in  Mount
Elizabeth Hospital, Health Science  Authority,  Singapore,  by  the  Autopsy
doctor, Dr. Paul Chui on 29.12.2012 and where the following was recorded:
“Uterus, Tubes and Ovaries

Uterus,  tubes  and  ovaries  were  present  in  their   normal   anatomical
positions. The uterus measured 8cm  x  5cm  x  3.5cm.  Thin  fibrinopurulent
adhesions were present on  the  serosal  surfaces  of  the  uterus  and  the
adnexae. Cervix appeared normal  and  the  os  was  closed.  There  were  no
cervical erosions and no haemorrhages on the  intra-vaginal  aspect  of  the
cervix. Cut sections showed thin endometrium and  normal  myometrium.  Tubes
were normal. Both ovaries were normal in size. Cut sections of both  ovaries
showed corpus lutea, the largest of which was present in the right ovary.”

      The learned counsel  for  the  appellants  submit  that  that  if  the
doctors in the surgery team did not find the uterus damaged, then it  cannot
be claimed that the rod was inserted in her  private  parts  and  intestines
were pulled out.

202.        The aforesaid submission  can  be  singularly  rejected  without
much discussion on the foundation that a question to  that  effect  was  not
put to the doctors in their respective cross-examinations. However,  instead
of  summary  rejection,  we  shall  deal  with  it  for  the  sake  of   our
satisfaction and also to meet the contention.  While it may be so  that  the
uterus, tubes and the cervix were not damaged, that does not mean  that  the
intestines could not have been damaged as they  have  been.   It  stands  to
reason based on common understanding  and  medical  science  to  allay  this
contention. First, it is nowhere the stance that the rod was  inserted  only
through the  vagina.  The  prosecutrix  herself  had  stated  in  her  dying
declarations that she was raped through the vagina as also the anus, Ex. PW-
27/A. The anus is directly connected to the intestines via the  rectum  and,
thus, deep penetration by use of a rod  or  other  long  object  could  have
caused injuries to the bowels/intestines.

203.         To  appreciate  the  above  contention,  it  is  necessary   to
understand the anatomy and position of the uterus. We may  profitably  refer
to the following excerpts from ‘Gray’s Anatomy:  Descriptive  and  Applied’,
34th Edn. [Orient Longman Publication] at pages 1572 and 1579:
“THE UTERUS: The uterus, or womb, is a hollow, thick-walled, muscular  organ
situated in the lesser pelvis between the urinary bladder in front  and  the
rectum behind. Into its upper part the uterine tubes open one on each  side,
while below, its cavity communicates with that of the vagina. When  the  ova
are discharged from the ovaries, they are  carried  to  the  uterine  cavity
through the uterine tubes. If an ovum be fertilized it embeds itself in  the
uterine  wall  and  is  normally  retained  in  the  uterus  until  prenatal
development  is  completed,  the  uterus  undergoing  changes  in  size  and
structure to accommodate itself to the needs of the  growing  embryo.  After
parturition the uterus returns almost to its former condition, though it  is
somewhat larger than in the virgin state. For general  descriptive  purposes
the adult virgin uterus is taken as the type form.

In the virgin state the uterus is flattened from  before  backwards  and  is
pear-shaped, with the narrow end directed downwards and backwards.  It  lies
between the bladder below and in front, and the  sigmoid  colon  and  rectum
above and behind, and is completely below the level of the pelvic inlet.

The long axis of the uterus usually lies approximately in the  axis  of  the
pelvic inlet (p.440), but as  the  organ  is  freely  movable  its  position
varies with the state of distension of the bladder and rectum.  Except  when
much displaced by a distended bladder, it forms almost a  right  angle  with
the vagina, since the axis of the vagina  correspond  to  the  axes  of  the
cavity and outlet of the lesser pelvis (p. 440)” (at page 1572)

“THE VAGINA: The vagina is a canal which  extends  from  the  vestibule,  or
cleft between the labia minora, to the uterus, and is situated,  behind  the
bladder and urethra, and in front of  the  rectum  and  anal  canal;  it  is
directed upwards and backwards, its axis forming with that of the uterus  an
angle of over ninety degrees, opening forwards ...” (at page 1579)

“And ‘A Fascimile: Gray’s Anatomy’ (at page 723) [Black Rose Publications]

Relations:  Its anterior surface is concave, and in relation with  the  base
of the bladder, and with the urethra. Its posterior surface is  convex,  and
connected to the anterior wall of the rectum, for  the  lower  three-fourths
of its extent....”

      The aforesaid excerpts  establish  that  the  vagina  and  uterus  are
almost at right angles to each other and the rectum is only separated  by  a
wall of tissue.  The pelvic cavity as set forth in the diagram in  the  book
supports the same.

204.        The exhibits relating to injuries may be noted.  OT  notes  from
17.12.2012 and 19.12.2012 read as under:
“OT Notes:
PW 50/B: Call received from Dr. Gaurav and Dr. Piyush at approx.  4.00  a.m.
from noty OT.
Immediately reached OT and reviewed  the  details  of  internal  injury  (as
mentioned in OT notes) the condition of the small and large bowel  extremely
bad for any definitive repair.  The condition explained  to  the  mother  of
the patient and the police officials present.  Case discussed with Dr.  S.K.
Jain. Int. I/C telephonically.”

205.        The operative findings which are seen from the examination  done
by the Gynaecologist and the Surgeons are:

Abdominal findings: Rectum is longitudinally  torn  on  anterior  aspect  in
continuation with tear.  This tear is continuing  upward  involving  sigmoid
colon descending colon which is splayed open.  The margins are edematous.

There are multiple longitudinal tear in the mucosa of rectosigmoid area.

Transverse colon was also torn and gangrenous.

Hepatic flexure ascending colon and  caecum  were  gangrenous  and  multiple
perforation at many places.

Terminal item  approximately  1½  feet  loosely  hanging  in  the  abdominal
cavity.  It was avulsed from its mesentery and was nonviable.

Rest of small bowel was nonenlistend with only patens of  mucosa  at  places
and border of the mesentery was contused.  This  contused  mesentery  border
initially appeared (during first surgery) as contused small bowel.

Jejunostomy stoma was gangrenous for approximately 2 cm.

Stomach and duodenum was distended but healthy.

Surgical Procedure:

Resection of gangrenous terminal ileum, caecum, appendix,  ascending  colon,
hepatic flexure and transverse colon was done.

Resection of necrotic jejunal stoma with closure of  duodenojejunal  flexure
in two layers by 3-0 viaeny.

Diverting lateral tube dudoenostomy (with  18F  Folley’s  catheter)  brought
through right flank.

Tube gastrostomy was  added  as  another  decompressive  measures  (28  size
apotere tube was used)  Tube  gastrostomy  was  brought  and  from  previous
jejunostomy site.

Abdominal drain placed in pelvis.

Rectal sheath closed by using No. 1 prolene interrupted sutures.

Skin closed by using 1-0 nylone.

Perineal wound packed with Betadine soaked gauze piece.

T-Bandage applied

ASD done for abdominal wound.

Patient tolerated procedure and was shifted back to ICU-I.

Post OP Advise



IVF as per CVP and output by ICU team.

Injection menopenum Limezolid to be continued as before.

Injection metronidazole 100ml IV TDS.

Injection Pantoprozole 20 mg IV OD

Strict I/O charting.

Rest of the treatment as advised by ICU team.”

206.        From the nature of the injuries  noted  in  the  OT  Notes,  the
rectum was longitudinally torn and transverse  colon  was  torn.   From  the
Post-Mortem Certificate, the uterus was found in position  (no  injuries  to
uterus). If the rod was inserted in the vagina, having regard  to  the  fact
that the injury within the vagina was only  in  the  posterior  surface,  it
indicates that the rod was pushed inside  with  a  downward  force  and  not
upward (which could have resulted in injury to the uterus)  and  it  perhaps
tunnelled its way through the vagina into the rectal cavity and the  bowels.
Therefore, merely because no injuries to  the  uterus  of  the  victim  were
noticed, that does not lead to the conclusion that iron rod  was  not  used.
Thus, the submission that  has  been  raised  with  immense  enthusiasm  and
ambition to create a concavity in the case of the prosecution on this  score
deserves to be repelled and we do so.

Analysis of evidence pertaining to DNA
207.        Having dealt with the aspect pertaining to insertion of rod,  it
is apposite to advert to the medical evidence and post  mortem  report.   We
have,  while  dealing  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
Adams[83].  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  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 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
States[84], 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.

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. Osborne[86], Chief  Justice
Roberts of the 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  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

(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:-

the name and address of the accused  and  of  the  person  by  whom  he  was

the age of the accused,

marks of injury, if any, on the person of the accused,

the description of material taken from the person of  the  accused  for  DNA
profiling, and

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:-

the name and address of the  woman  and  of  the  person  by  whom  she  was

the age of the woman;

the description of material taken from the  person  of  the  woman  for  DNA

marks of injury, if any, on the person of the woman;

general mental condition of the woman; and

other material particulars in reasonable detail.”

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 Ram[87], 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
Pradesh[88], 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.”

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  CBI[89],  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 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  David[90],  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

219.        In Krishan Kumar Malik v. State of Haryana[91], 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

220.        In Surendra Koli v. State of Uttar Pradesh and  others[92],  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 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 Maharashtra[93], 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 (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 Pradesh[94], 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

223.        In Rajkumar v.  State  of  Madhya  Pradesh[95],  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

224.         In  Nandlal  Wasudeo  Badwaik  v.  Lata  Nandlal  Badwaik   and
another[96],  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. 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  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  thereof.
In his report, he concluded that the samples were authentic and  capable  of
establishing the identities  of  the  persons  concerned  beyond  reasonable

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

|“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.                             |
|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   |Identity of the  |Findings of DNA Analysis             |
|No.       |victim           |                                     |
|          |Informant        |The DNA profile developed from burnt |
|          |                 |clothes pieces was found to be of    |
|          |                 |male origin and was consistent with  |
|          |                 |the DNA profile of complainant.      |
|          |                 |                                     |
|          |                 |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.                      |
|          |                 |                                     |
|          |                 |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.                      |
|          |Prosecutrix      |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.                         |
|          |                 |The DNA profile developed from blood |
|          |                 |stains from curtains of the bus      |
|          |                 |matched with the DNA profile of      |
|          |                 |prosecutrix.                         |
|          |                 |The DNA profile developed from blood |
|          |                 |stains from seat covers was found    |
|          |                 |consistent with the DNA profile of   |
|          |                 |prosecutrix.                         |
|          |                 |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 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 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:

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 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
“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  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
may show the marks, usually  on  the  hands,  fingers,  forearms,  nose  and

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 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 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.

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 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

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 Bihar[97]:
“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:

‘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 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 Haryana[98], Shaikh Sattar v. State of  Maharashtra[99],   Jitender
Kumar v. State of Haryana[100] 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 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
that evening. It is in contradiction to  the  stand  taken  by  him  in  his
earlier statement recorded under Section  313 CrPC.

247.        Accused Pawan examined his father, DW-2, Shri Hira Lal Ram,  who
deposed that on 16.12.2012 about 7:15 p.m., when he came to  his  house,  he
was informed by his daughter that accused Pawan had  gone  to  DDA  District
Park, Hauz Khas. It is in contradiction to the deposition made by the  other
defence witnesses who have said that accused Vinay  Sharma  and  his  family
members had left Ravi Dass Camp, Sector-3,  R.K.  Puram,  New  Delhi,  about
8:00/8:30 p.m. and that accused Pawan had accompanied  them.  Accused  Pawan
also said so in his initial statement under Section 313 CrPC.

248.        DW-4, Shri Gyan Chand, the  maternal  uncle  of  accused  Pawan,
deposed that he brought accused Pawan Gupta @ Kaalu to the jhuggi  from  the
DDA District Park and saw one Ram Charan warming  his  hands  on  a  bonfire
just outside his jhuggi who came and asked him  about  the  well-  being  of
accused Pawan. Ram Charan,  DW-3,  however,  deposed  that  about  8:30/9:00
p.m., he was sitting inside 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 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  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  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  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, 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 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 Singh[101], 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, 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
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  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 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.

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

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

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 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  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.”

272.        The English law on ‘conspiracy’ has  been  succinctly  explained
by Russell on Crimes (12th Ed. Vol. 1 page 202) in the following passage:
“The gist of the offence of conspiracy then lies, not in doing the  act,  or
effecting the purpose for which the conspiracy is formed, nor in  attempting
to do them, nor in inciting others to do them, but in  the  forming  of  the
scheme or agreement between the  parties.   Agreement  is  essential.   Mere
knowledge, or even discussion, of the plan is not, per se enough.”

273.        Coleridge J. in R. v. Murphy[102] 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?”

274.        Lord Brampton of the House of Lords  in  Quinn  v.  Leatham[103]
had aptly defined conspiracy which  definition  was  engrafted  in  Sections
120A and 120B IPC. Following was stated by the House of Lords:
“‘A conspiracy consists not merely in the intention of two or more,  but  in
the agreement of two or more, to do an unlawful act, or to do a  lawful  act
by unlawful means. So long as such a design rests in intention only,  it  is
not indictable. When two agree to carry it into effect, the very plot is  an
act in itself, and the act of each of the parties, promise against  promise,
actus contra actum, capable of being enforced, if lawful; and punishable  of
for a criminal object, or for the use of criminal means’.”

275.        A perusal of the above shows that  in  order  to  constitute  an
offence of criminal conspiracy, two or more persons  must  agree  to  do  an
illegal act or an act which if not illegal by illegal means. This  Court  on
several occasions has explained and elaborated the element of conspiracy  as
contained in our penal law. In Noor Mohammad Mohd. Yusuf Momin vs  State  of
Maharashtra[104], this Court has observed:

“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  Bombay[105],  the  following  was
”…… 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  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  Punjab[106]
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 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
“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  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; 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  Kerala[108],  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 rea of the crime is also required to be established.”

281.        In Mir Nagvi Askari v.  Central  Bureau  of  Investigation[109],
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.

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 Maharashtra[110].)

282.         In  Pratapbhai  Hamirbhai  Solanki  v.  State  of  Gujrat   and
another[111], 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
Rajasthan[112], a two-Judge Bench after referring to the decision  in  Kehar
Singh  v.  State  (Delhi  Admn.)  and  State  of  Maharashtra  v.  Som  Nath
Thapa[113], 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 have  come  together  to  pursue
the unlawful object. The former does not render them  [pic]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. CBI[114] 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 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
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 Kerala[115], 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 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 others[116]  summarised  the
principles relating to criminal conspiracy as under:
“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; 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.

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  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.”

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 Kerala[117]]

286.        In Suresh Chandra Bahri  v.  State  of  Bihar[118],  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 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  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:
the accused agreed to do or caused to be done an act;
such an act was illegal or was to  be  done  by  illegal  means  within  the
meaning of IPC;

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  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.

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
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 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 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  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 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 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  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  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

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, 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,  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:
“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  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 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  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 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

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

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  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

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.

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 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

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
manipulation by the investigating agency to rope in the accused persons.

xv.   The evidence brought on record as regards criminal  conspiracy  stands

      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.”

306.        While discussing Section  235(2)  CrPC,  this  Court,  in  Santa
Singh v. State of Punjab[120], 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
Maharashtra[121] 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 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

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.”

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  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 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
Punjab[122], 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  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

      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 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 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 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

      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 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, 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.”

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, 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

      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
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  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 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

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 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
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  Punjab[123]  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  (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 Punjab[124], 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 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  Haryana[125]  and  Shankar
Kisanrao Khade v. State of Maharashtra[126], the decisions,  i.e.,  Shiv  v.
High Court of Karnataka[127],  B.A.Umesh v. Registrar  General,  High  Court
of Karnataka[128] and Dhananjoy Chaterjee  v.  State  of  West  Bengal[129],
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 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 fell within  the  rarest  of  rare
category.  He has referred to the Constitution Bench decision in  Triveniben
v. State of Gujarat[130] 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  Maharashtra[132],
Nirmal Singh v. State of Haryana[133] and Sahdeo v. State of U.P[134].

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
Haryana[135], Harnam Singh v. State of Uttar Pradesh[136], Amit v. State  of
Maharashtra[137], Rahul v. State of Maharashtra[138], Rameshbhai  Chandubhai
Rathod  v.  State  of  Gujarat[139],  Santosh  Kumar  Bariyar  v.  State  of
Maharashtra[140], Sebastian v. State of  Kerala[141],  Santosh  Kumar  Singh
(supra), Rameshbhai Chandubhai Rathod II v. State of Gujarat[142],  Amit  v.
State of Uttar  Pradesh[143]  and  Lalit  Kumar  Yadav  v.  State  of  Uttar
Pradesh[144].   That apart, it is urged by him that when the  crime  is  not
pre-meditated, 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
Pradesh[145], Raju v. State of Haryana[146] and  Amrit  Singh  v.  State  of

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  Gujarat[148],  Rameshbhai  Chandubhai  Rathod  II
(supra),  Amit  v.  State  of  Uttar  Pradesh  (supra),  Anil  v.  State  of
Maharashtra[149] and Lalit Kumar Yadav v. State of Uttar Pradesh[150].

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 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 Pradesh[151], Lehna  (supra),  Rahul
(supra), Santosh Kumar Bariyar (supra), Santosh Kumar Singh (supra),  Rajesh
Kumar v. State[152], Amit v. State of Uttar Pradesh  (supra),  Ramnaresh  v.
State of Chhattisgarh[153], Sandesh v. State of Maharashtra[154]  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  Karnataka[155]  and  the  recent  Constitution
Bench decision in Union of India v. Sriharan[156].  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
Haryana[157], Ram Deo Prasad v. State of Bihar[158], Chhote Lal  v.State  of
Madhya Pradesh[159], Anil v. State of Maharashtra (supra), Rajkumar  (supra)
 and Selvam v. State[160].

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
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  Nadu[161],  Kamta  Tiwari  v.
State  of  Madhya  Pradesh[162],  State  of  U.P.  v.  Satish[163],  Holiram
Bordoloi  v.  State  of  Assam[164],  Ankush  Maruti  Shinde  v.  State   of
Maharashtra[165],  Sundar  v.  State[166]  and  Mohfil  Khan  v.  State   of

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  Bihar[168]  and
Purshottam Dashrath Borate v. State of Maharashtra[169].

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,  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

(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.  Georgia[170],  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:

“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.”

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

(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

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 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:

“(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 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
Maharashtra[171], 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

“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

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  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
[pic]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.N[172]., Dara Singh v. Republic of India[173], Surendra  Koli  v.
State  of   U.P.[174],   Mohd.   Mannan[175]   and   Sudam   v.   State   of

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.”

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  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 Orissa[177], 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 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
“ …….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
[pic]the evidence of his crime also put an end to the life of 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
[pic]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 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 Pradesh[178], 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 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 Maharashtra[180],  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
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 another[181], 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 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 of  gagging  the  girl  has  died.  The  medical  [pic]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  Dhiwar[182],  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”.

351.        Keeping  in  view  the  aforesaid  authorities,  the  Court,  in
Vasanta Sampat Dupare v. State of Maharashtra[183],  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

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:

“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.

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

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 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  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:

“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 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

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  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 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  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

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.

359.        In view of our preceding analysis,  the  appeals  are  bound  to
pave the path of dismissal, and accordingly, we so direct.

                                             (Dipak Misra)

                                             (Ashok Bhushan)
New Delhi
May 05, 2017


                        IN THE SUPREME COURT OF INDIA

                     CRIMINAL APPEAL NOS. 607-08 OF 2017
                     [@SLP(CRL) NOS. 3119-3120 OF 2014]

Mukesh & Anr.                     …..              Appellants

State of NCT of Delhi and Ors.    …..                  Respondents


                     CRIMINAL APPEAL NOS. 609-10 OF 2017
                     [@SLP(CRL) NOS. 5027-5028 OF 2014]

Vinay Sharma & Anr.               …..              Appellants

State of NCT of Delhi and Ors.    …..                   Respondents

                               J U D G M E N T


      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
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     /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  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  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 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
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
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,  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:
Three dying declarations  of  the  prosecutrix,  complementing  each  other,
corroborated by medical evidence and other direct as well as  circumstantial

Testimony of eye witness - PW-1, corroborated by circumstantial evidence  as
well as scientific evidence.

Recovery of the bus in  which  incident  took  place  and  recovery  of  the
concerned  iron  rod  therefrom,  completing  the  chain  of  circumstantial
evidence, by proof of scientific evidence like DNA  analysis,  finger  print
analysis etc.

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.

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 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.

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  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

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:-
“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]”

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.”

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

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.”

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
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  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

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  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  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 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
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

(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)”

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
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.

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 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.

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 declarations whether recorded prior or subsequent  thereto.   In
Ashabai and Anr. v. State of Maharashtra (2013) 2 SCC 224, it  was  held  as
“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
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
dying declaration, signs/gestures made by the victim,  in  response  to  the
multiple  choice  questions  put  to  the  prosecutrix  are  admissible   in

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 prosecution has established  the  case
against the respondents beyond reasonable doubt. The victim also  wrote  the
names  of  the  accused  persons  in  her  own  hand-writing  in  the  dying
declaration recorded by PW-30    (Ex.PW-30/D).  Considering  the  facts  and
circumstances of the present case and upon appreciation of the evidence  and
material on record, I find all  the  three  dying  declarations  consistent,
true and voluntary, satisfying  the  test  of  probabilities  factor.   That
apart,  the  dying  declarations  are  well-  corroborated  by  medical  and
scientific evidence adduced by the prosecution. Moreover, the same has  been
amply corroborated by the testimony of eye witness-PW-1.

44.   Corroboration of Dying declaration by  Medical  Evidence:-  The  dying
declaration is amply corroborated by medical evidence depicting injuries  to
vagina and internal injuries to rectum and recto-vaginal septum as noted  by
PW-49 Dr. Rashmi Ahuja and PW-50 Dr, Raj Kumar Chejara.   On  the  night  of
16.12.2012, the prosecutrix was medically examined  by  PW-49  who  recorded
her injuries and statement in the MLC (Ex. PW-49/B). On  local  examination,
a sharp cut over right labia and a  6  cm  long  tag  of  vagina  was  found
hanging outside the  introitus.  Vaginal  examination  showed  bleeding  and
about 7 to 8 cm long posterior vaginal wall tear. A rectal tear of  about  4
to 5 cm was also noticed communicating with the  vaginal  tear.  Apart  from
the said injuries to the private parts  of  the  prosecutrix,  guarding  and
rigidity was also found in her abdomen and  several  bruises  and  marks  on
face were noticed. Bruises and abrasions around both the eyes  and  nostrils
were also found. Lips were found edematous and left side of  the  mouth  was
injured by a small laceration. Bite marks  over  cheeks  and  breast,  below
areola, were also present. Bruises over the left breast  and  bite  mark  in
interior left quadrant were prominent.

45.   During  surgery,  conducted  on  16/17.12.2012  PW-50  Dr.  Raj  Kumar
Chejara (Ex.PW-50/A  and  Ex.  PW-50/B)  noted  contusion  and  bruising  of
jejunum, large  bowel,  vaginal  tear,  and  completely  torn  recto-vaginal
septum. Small and large bowels were affected and were extremely bad for  any
definitive repair. It was also noted that  rectum  was  longitudinally  torn
and the tear was  continuing  upward  involving  sigmoid  colon,  descending
colon which was splayed open.  There  were  multiple  perforations  at  many
places of ascending colon and calcum. Terminal illeum approximately one  and
a half feet loosely  hanging  in  the  abdominal  cavity  avulsed  from  its
mesentery.  Rest of the small bowel was non-existent with  only  patches  of
mucosa at  places  and  borders  of  the  mesentery  were  contused.   While
performing  second  surgery  on  19th  December,  2012,  surgery  team  also
recorded findings that rectum was longitudinally torn on anterior aspect  in
continuation with peritorial tear and other internal  injuries.   On  26-12-
2012 the condition of the prosecutrix was examined and  it  was  decided  to
shift her abroad for further treatment  and  she  was  shifted  by  an  air-
ambulance to Singapore Mount Elizabeth Hospital.  The  prosecutrix  died  at
Mount Elizabeth Hospital, Singapore on 29-12-2012  at  04:45  AM.  Cause  of
death is stated as  sepsis  with  multi  organ  failure  following  multiple
injuries. (Ex.PW-34/A)

46.   Injuries to vagina, rectum and recto-vaginal septum as noted by    PW-
49 Dr. Rashmi Ahuja and PW-50 Dr. Raj Kumar Chejara;  and  the  injuries  as
depicted in  the  post-mortem  certificate,  including  the  other  external
injuries which are evidently marks of violence during the incident,  exhibit
the cruel nature of  gang  rape  committed  on  the  victim.   The  profused
bleeding from vagina and tag of vagina hanging outside;   completely  recto-
vaginal septum clearly demonstrate the violent act of  gang  rape  committed
on the victim. The medical reports including  the  operation  theatre  notes
(Ex. PW-50/A and 50/B) and the  injuries  thereon  indicates  the  pain  and
suffering which the victim had undergone due to multiple organ  failure  and
other injuries caused by insertion of iron rod.

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  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.
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 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

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 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  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
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  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 the  testimony  of  an  injured  accused  and
relying on its earlier judgments held as under: (SCC pp. 726-27,  paras  28-
‘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 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   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
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  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.

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.

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  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  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  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+  |ARTICLES RECOVERED FROM ACCUSED            |               |
|WHERE+         |                                           |               |
|BY WHOM)       |                                           |               |
|               |Details of    |Details of articles        |Items          |
|               |articles      |recovered pursuant to      |identified as  |
|               |recovered from|disclosure statement       |that of PW-1   |
|               |the person of |                           |Awninder Pratap|
|               |the accused   |                           |Singh/Prosecutr|
|               |              |                           |ix             |
|(1)            |(2)           |(3)                        |(4)            |
|On 17.12.2012, |(1) One Unix  |(1) Bus (Ex.P-1)           |Debit Card,    |
|PW-80 Pratibha |Mobile Phone  |DL-1PC-0149                |marked as Ex.  |
|Sharma         |with MTNL Sim |(2) Keys of Bus,           |PW-74/3 belongs|
|alongwith PW-74|[Ex.PW-74/5]; |(Ex.P-74/2)                |to the         |
|Subhash Chand  |(2) Photocopy |(3)Driving License, Fitness|prosecutrix as |
|SI and PW-65   |of Election   |Certificate, Permit        |deposed by     |
|Ct. Kirpal     |Card and Pan  |Pollution Certificate and  |PW-75- Asha    |
|Singh arrested |Card;         |other documents of bus     |Devi, mother of|
|A-1 at 4:15 PM |(3) Rs. 207/- |bearing registration no.   |prosecutrix.   |
|(Arrest Memo:  |in cash       |DL-1PC-0149 (Ex.P-74/4)    |               |
|Ex.PW-74/D)    |[personal     |(4) Two blood-stained rods |               |
|from Ravi Das  |search Memo   |(Ex.P49/1 and Ex.49/2)     |               |
|Camp, R.K.     |Ex.PW-74/E]   |(5) Indian Bank Debit      |               |
|Puram, Delhi.  |              |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.)              |               |

|ACCUSED MUKESH (A-2)                                                         |
|ARREST (WHEN+     |ARTICLES RECOVERED FROM ACCUSED           |               |
|WHERE+BY WHOM)    |                                          |               |
|                  |Details of        |Details of articles     |Items          |
|                  |articles recovered|recovered pursuant to   |identified as  |
|                  |from the person of|disclosure statement    |that of PW-1   |
|                  |the accused       |                        |Awninder Pratap|
|                  |                  |                        |Singh/Prosecutr|
|                  |                  |                        |ix             |
|(1)               |(2)               |(3)                     |(4)            |
|A-2 was traced at |(1) Rs. 226/- in  |Disclosure statement    |In the TIP     |
|Karoli District,  |cash              |recorded on 18.12.2012  |proceedings    |
|Rajasthan by PW-58|(2) Key           |by PW-60 HC Mahabir     |held on        |
|SI Arvind Kumar   |(3) one black and |(Ex.PW-60/I)            |20.12.2012,    |
|alongwith staff   |brown colour purse|Following items         |PW-1 identified|
|ASI Anand Prakash,|containing PAN    |recovered:              |the Samsung    |
|HC Randhawa, HC   |Card, Visiting    |1. one blood-stained    |Galaxy Duos    |
|Mukesh, HC Sachin |cards and voter   |green T-shirt           |(recovered from|
|and          Ct.  |card and          |2. one blood-stained    |accused Mukesh)|
|Umesh, pursuant to|(4)Nokia Mobile   |grey colour pants.      |as belonging to|
|                  |phone bearing IMEI|3. blood-stained bluish |him.           |
|A-1’s disclosure. |No.351863010659247|grey colour jacket.     |               |
|He was formally   |(5) Samsung Galaxy|                        |               |
|arrested on       |Duos Mobile with  |                        |               |
|18.12.2012 at 6.30|IMEI              |                        |               |
|p.m. by PW80 SI.  |No.354098053454886|                        |               |
|(Arrest Memo      |and               |                        |               |
|Ex.PW-58/B)       |No.354099053454884|                        |               |
|                  |(Ex. P/6)         |                        |               |

|ACCUSED AKSHAY (A-3)                                                       | | |
|ARREST (WHEN+    |ARTICLES RECOVERED FROM ACCUSED       |                   |
|WHERE+BY WHOM)   |                                      |                   |
|                 |Details of        |Details of articles|Items identified  | | |
|                 |articles recovered|recovered pursuant |as that of PW-1   | | |
|                 |from the person of|to disclosure      |Awninder Pratap   | | |
|                 |the accused       |statement          |Singh/Prosecutrix | | |
|(1)              |(2)               |(3)                |(4)                |
|On 21.12.2012 at |No personal       |(1) One black bag  |In the TIP        | | |
|9:15 p.m.,       |articles recovered|containing         |proceedings held  | | |
|pursuant to the  |from the accused  |blood-stained blue |on 26.12.2012,    | | |
|disclosure of    |at his residence, |jeans              |PW-1 identified   | | |
|A-1, PW-53 SI    |Karmalahang       |(2) Blue black     |the Silver ring   | | |
|Upender alongwith|                  |Nokia mobile phone |(recovered from   | | |
|team comprising  |                  |with IMEI          |accused Akshay) as| | |
|Insp. Ritu Raj,  |                  |No.359286040159081 |belonging to PW-1 | | |
|PW-61 SI Jeet    |                  |(3) Blood-stained  |Complainant.      | | |
|Singh and ASI    |                  |red coloured       |                  | | |
|Ashok Kumar      |                  |banian.            |                  | | |
|arrested him from|                  |(4) One silver ring|                  | | |
|his house at     |                  |(5) Two metro cards|                  | | |
|Karmalahang.     |                  |                   |                  | | |
|(Arrest Memo:    |                  |                   |                  | | |
|Ex.PW53/A)       |                  |                   |                  | | |

|ACCUSED VINAY (A-4)                                                        |
|ARREST (WHEN+     |ARTICLES RECOVERED FROM ACCUSED      |                  |
|WHERE+ BY WHOM)   |                                     |                  |
|                  |Details of       |Details of articles|Items identified  |
|                  |articles         |recovered pursuant |as that of PW-1   |
|                  |recovered from   |to disclosure      |Awninder Pratap   |
|                  |the person of the|statement          |Singh/Prosecutrix |
|                  |accused          |                   |                  |
|(1)               |(2)              |(3)                |(4)               |
|On 18.12.2012 at  |One black coloured|Blood-stained blue |PW-1 identified   |
|1:30 p.m., on     |Nokia mobile phone|coloured jeans     |hush puppy shoes  |
|disclosure of A-1,|bearing IMEI      |(Ex.P-68/1)        |(recovered from   |
|PW-80 SI Pratibha |no.354138058308214|Blood-stained black|accused Vinay) as |
|Sharma alongwith  |18 (Ex.PW-60/D)   |coloured jacket    |belonging to him. |
|PW-60 HC Mahabir  |                  |(Ex.P-68/2)        |Nokia mobile phone|
|and Manphool      |                  |Blood-stained full |bearing IMEI      |
|arrested him from |                  |sleeved black      |No.353183039047391|
|Ravi Das Camp,    |                  |coloured T-shirt   |was identified as |
|R.K. Puram, Delhi |                  |(Ex.P-68/3)        |the mobile phone  |
|in the presence of|                  |Blue coloured      |of the            |
|A-1. (Arrest Memo:|                  |chappals           |prosecutrix.      |
|Ex.PW-60/B).      |                  |(Ex.P-68/4)        |                  |
|Supplementary     |                  |Hush puppy shoes   |                  |
|disclosure        |                  |(Ex.P2 under       |                  |
|recorded on       |                  |Ex.PW-68/C)        |                  |
|19.12.2012 by     |                  |Black coloured     |                  |
|PW-68 SI Mandeep  |                  |Nokia mobile phone |                  |
|(Ex.PW-68/A)      |                  |with IMEI          |                  |
|                  |                  |No.353183039047391 |                  |
|                  |                  |(Ex.P-68/5) –      |                  |
|                  |                  |seizure Memo       |                  |
|                  |                  |Ex.PW-68/D         |                  |

|ACCUSED PAWAN GUPTA @ KALU (A-5)                                           | | |
|ARREST (WHEN+    |ARTICLES RECOVERED FROM ACCUSED       |                   |
|WHERE+ BY WHOM)  |                                      |                   |
|                 |Details of        |Details of articles|Items identified  | | |
|                 |articles recovered|recovered pursuant |as that of PW-1   | | |
|                 |from the person of|to disclosure      |Awnindra Pratap   | | |
|                 |the accused       |statement          |Singh/ Prosecutrix| | |
|(1)              |(2)               |(3)                |(4)                |
|On 18.12.2012, on|(1) One black     | (1)one            |In the TIP        | | |
|disclosure of    |purse containing  |blood-stained black|proceedings       | | |
|A-1,  PW-80 S.I. |some visiting     |coloured sweater   |conducted on      | | |
|Pratibha Sharma  |cards             |(Ex. P-68/6)       |25.12.2012, Sonata| | |
|alongwith        |(2) Rs.8,200 in   |(2)blood-stained   |wrist watch       | | |
|PW-60 HC Mahabir |cash              |coca cola (colour) |identified by PW-1| | |
|and Manphool went|(3)One silver     |pants. (Ex.68/7)   |(recovered from   | | |
|to Ravi Das Camp |coloured ring with|(3)Blood-stained   |accused Pawan) as | | |
|at 1:15 p.m. to  |green nug         |brown coloured     |belonging to him. | | |
|arrest him.      |(Personal Search  |underwear          |                  | | |
|(Arrest          |Memo: Ex.PW-60/C).|(Ex.P-68/8)        |                  | | |
|Memo:Ex.PW-60/A) |                  |(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)      |                  | | |

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  (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

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.

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.
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

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.  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 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.
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; 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
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  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 Pandey, 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.
|ACCUSED RAM SINGH (A-1) (Dead)                                             | | |
|ARTICLES RECOVERED |          |Findings of DNA        |DNA profile generated|
|FROM ACCUSED       |          |generated from clothes |from other articles, |
|                   |          |                       |swab etc.            |
|Recovery pursuant  |Samples   |Items   |Items matching|Findings (Ex.Pw45/B)| | |
|to disclosure      |collected |matching|DNA profile of|                    | | |
|statement          |from the  |DNA     |Victim.       |                    | | |
|                   |person of |profile |              |                    | | |
|                   |the       |of PW1  |              |                    | | |
|                   |accused   |        |              |                    | | |
|(1)                |(2)       |(3)     |(4)           |(5)                  |
|(1) Bus (Ex.P-1)   |(1)Penile |-NA-    |(1) DNA       |(1) DNA profile     | | |
|DL-1PC-0149        |swab      |        |profile       |generated from Blood| | |
|(2) Keys of Bus,   |          |        |generated from|detected in gauze of| | |
|(Ex.P-74/2)        |(2) Saliva|        |Partially torn|accused matched the | | |
|(3)Driving License,|          |        |green and     |DNA profile         | | |
|Fitness            |(3)Nail   |        |black colored |generated from      | | |
|Certificate, Permit|clippings |        |striped half  |rectal swab of the  | | |
|Pollution          |          |        |sleeve t-shirt|victim.             | | |
|Certificate and    |(4)Control|        |found to be   |                    | | |
|other documents of |swab      |        |female in     |(2) Blood as well as| | |
|bus bearing        |          |        |origin and    |human spermatozoa   | | |
|registration no.   |(5)Blood  |        |consistent    |was detected in the | | |
|DL-1PC-0149        |in gauze  |        |with the DNA  |underwear of the    | | |
|(Ex.P-74/4)        |          |        |profile of    |accused and the DNA | | |
|(4) Two            |(6)       |        |victim (1q)   |profile generated   | | |
|blood-stained rods |Underwear |        |[8.7.3 @ Ex.  |there-from was found| | |
|(Ex.P49/1 and      |          |        |PW 45/B].     |to be female in     | | |
|Ex.49/2)           |          |        |              |origin, consistent  | | |
|(5) Indian Bank    |          |        |(2) DNA       |with that of the    | | |
|Debit              |          |        |profile       |victim.             | | |
|Card(Ex.P74/3)     |          |        |generated from|                    | | |
|(6) Blood-stained  |          |        |brown colored |(3) The DNA profile | | |
|green and black    |          |        |plastic       |developed from blood| | |
|coloured T-Shirt   |          |        |chappal found |stains from both the| | |
|(Ex.74/6) and      |          |        |to be female  |iron rods, recovered| | |
|blood-stained brown|          |        |in origin and |at the instance of  | | |
|coloured chappal   |          |        |consistent    |accused Ram Singh   | | |
|(Ex.74/7).         |          |        |with the DNA  |from bus, is of     | | |
|(7) Some ashes and |          |        |profile of    |female origin and   | | |
|partly burnt       |          |        |victim (1q)   |consistent with the | | |
|clothes (seizure   |          |        |[8.7.3 @ Ex.  |DNA profile of      | | |
|memo Ex. PW-74/M.) |          |        |PW 45/B]      |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        |             |Findings of DNA      |DNA profile generated  |
|RECOVERED FROM  |             |generated from       |from other articles,   |
|ACCUSED         |             |clothes              |swab etc.              |
|Recovery        |Samples      |Items    |Items      |FINDINGS (Ex.PW45/B)   |
|pursuant to     |collected    |matching |matching   |                       |
|disclosure      |from the     |DNA      |DNA profile|                       |
|statement       |person of the|profile  |of Victim  |                       |
|                |accused      |of PW1   |           |                       |
|(1)             |(2)          |(3)      |(4)        |(5)                    |
|Disclosure      | (1) Blood in|-NA-     |The DNA    |(1) Blood was detected |
|statement       |gauze        |         |profile    |in gauze and nail      |
|recorded on     |(2)Nail      |         |generated  |clippings but it did   |
|18.12.2012 by   |clippings    |         |from       |not yield female       |
|PW-60 HC Mahabir|(3) Urethral |         |blood-stain|fraction DNA for       |
|(Ex.PW-60/I)    |swab         |         |ed pants,  |analysis.              |
|Following items |(4)Glans swab|         |t-shirts   |(2)Human Spermatazoa   |
|recovered:      |(5)Cut of    |         |and jackets|was detected in        |
|1. one          |pubic hair   |         |recovered  |urethral swab, glans   |
|blood-stained   |(6) Saliva   |         |at the     |swab and underwear but |
|green T-shirt   |(7) Stray    |         |behest  of |the same did not yield |
|2. one          |hair         |         |accused    |female fraction DNA for|
|blood-stained   |(8)          |         |matched the|analysis.              |
|grey colour     |Underwear.   |         |DNA profile|                       |
|pants.          |             |         |of the     |                       |
|3. blood-stained|             |         |victim.    |                       |
|bluish grey     |             |         |           |                       |
|colour jacket.  |             |         |           |                       |
|ACCUSED AKSHAY (A-3)                                                       | | |
|(1)            |(2)          |(3)      |(4)        |(5)                    | | |
|(1) One black  |(1) Blood in |One set  |The DNA    |DNA profile generated | | |
|bag containing |gauze        |of the   |profile    |from breast swab of   | | |
|blood-stained  |(2) Saliva   |DNA      |generated  |the victim was found  | | |
|blue jeans     |(3) Control  |profile  |from       |consistent with the   | | |
|(2) Blue black |gauze        |generated|blood-stain|DNA profile of the    | | |
|Nokia mobile   |(4) Penile   |from     |ed red     |blood of the accused  | | |
|phone bearing  |Swab         |jeans    |coloured   |Akshay.               | | |
|IMEI           |(5)Nail      |pant of  |banian     |                      | | |
|No.35928604015 |clippings    |the      |recovered  |                      | | |
|(3)            |(6) Underwear|accused  |at the     |                      | | |
|Blood-stained  |(7) Scalp    |matched  |behest of  |                      | | |
|red coloured   |hair and     |the DNA  |accused    |                      | | |
|banian.        |Pubic hair   |profile  |matched the|                      | | |
|(4) One silver |(8) Red      |of PW1.  |DNA profile|                      | | |
|ring           |colour banian|         |of the     |                      | | |
|(5) Two metro  |             |         |victim.    |                      | | |
|cards          |             |         |           |                      | | |
|               |             |         |           |                      | | |
|               |             |         |           |                      | | |

|ACCUSED VINAY (A-4)                                                        | | |
|ARTICLES RECOVERED    |             |Findings of DNA      |DNA generated    |
|FROM ACCUSED          |             |generated from       |from other       |
|                      |             |clothes              |articles, swab   |
|                      |             |                     |etc.             |
|Recovery pursuant to  |Samples      |Items    |Items      |FINDINGS        | | |
|disclosure statement  |collected    |matching |matching   |(Ex.PW45/B)     | | |
|                      |from the     |DNA      |DNA profile|                | | |
|                      |person of the|profile  |of Victim. |                | | |
|                      |accused      |of PW1   |           |                | | |
|(1)                   |(2)          |(3)      |(4)        |(5)              |
|1.Blood-stained blue  | (1) Blood in|One set  |The DNA    |(1) Blood was   | | |
|coloured jeans        |gauze        |of the   |profile    |detected only in| | |
|(Ex.P-68/1)           |(2)Nail      |DNA      |generated  |gauze, nail     | | |
|2.Blood-stained black |clippings    |profile  |from       |clipping and    | | |
|coloured jacket       |(3) Urethral |generated|blood-stain|pubic hair of   | | |
|(Ex.P-68/2)           |swab         |from     |ed         |the accused but | | |
|3.blood-stained full  |(4)Glans swab|sports   |underwear, |the same did not| | |
|sleeved black coloured|(5)Cut of    |jacket of|chappal and|yield female    | | |
|T-shirt (Ex.P-68/3)   |pubic hair   |the      |jacket     |fraction DNA for| | |
| coloured       |(6) Saliva   |accused  |recovered  |analysis.       | | |
|chappals              |(7) Stray    |matched  |at the     |                | | |
|(Ex.P-68/4)           |hair         |the DNA  |behest of  |                | | |
|5. Hush Puppy         |(8) Underwear|profile  |accused    |                | | |
|shoes(Ex.P2 under Ex. |             |of PW1.  |matched the|                | | |
|PW-68/C)              |(9)Mons Pubis|         |DNA profile|                | | |
|6. Black coloured     |             |         |of the     |                | | |
|Nokia mobile phone    |             |         |victim.    |                | | |
|with IMEI             |             |         |           |                | | |
|No.353183039047391    |             |         |           |                | | |
|(Ex.P-68/5)           |             |         |           |                | | |

|ACCUSED PAWAN GUPTA @ KALU (A-5)                                           | | |
|(1)                   |(2)          |(3)      |(4)         |(5)             |
|Disclosure statement  | (1) Blood in|One set  |(1) Another |(1) Blood was   | | |
|recorded by PW-60 HC  |gauze        |of the   |set of DNA  |detected only in| | |
|Mahabir.              |(2)Nail      |DNA      |profile     |gauze and nail  | | |
|Following items       |clippings    |profile  |generated   |clipping of the | | |
|recovered on          |(3)Urethral  |generated|from sweater|accused but the | | |
|19.12.2012:           |swab         |from     |recovered at|same did not    | | |
|(1)one blood-stained  |(4)Glans swab|black    |the behest  |yield female    | | |
|black coloured sweater|(5) Cut of   |coloured |of the      |fraction DNA for| | |
|                      |pubic hair   |sweater  |accused     |analysis.       | | |
|(Ex. P-68/6)          |(6) Saliva   |of the   |matched the |                | | |
|(2)blood-stained coca |(7) Stray    |accused  |DNA profile |                | | |
|cola (colour) pants.  |hair         |matched  |of the      |                | | |
|(Ex.68/7)             |             |the DNA  |victim.     |                | | |
|(3)Blood-stained brown|             |profile  |            |                | | |
|coloured underwear    |             |of PW-1. |(2) DNA     |                | | |
|(Ex.P-68/8)           |             |         |profile     |                | | |
|(4)Brown coloured     |             |         |generated   |                | | |
|sports shoes          |             |         |from sports |                | | |
|(Ex.P-68/9)           |             |         |shoes of the|                | | |
|(5)One wristwatch of  |             |         |accused     |                | | |
|Sonata make           |             |         |matched with|                | | |
|(Ex.P-3)              |             |         |the DNA     |                | | |
|(6)Two currency notes |             |         |profile of  |                | | |
|of Rs.500/- each      |             |         |the         |                | | |
|(Ex.P-7)              |             |         |prosecutrix |                | | |
|Site plan of the spot |             |         |            |                | | |
|from where the said   |             |         |            |                | | |
|articles are recovered|             |         |            |                | | |
|and seized            |             |         |            |                | | |
|(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  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

In the same Law Lexicon, learned author  refers  to  DNA  identification  as

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.      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

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.

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
Devi 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

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  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.

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

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
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
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
“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]

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 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.)

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

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
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 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 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:-
“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

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 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)
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

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 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  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

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  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  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.
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.

(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 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

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
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

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
“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 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 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  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.

(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

(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

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,
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  (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 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

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

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  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
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

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. 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  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).”

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
“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.”

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.

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
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.

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
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  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
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,
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  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
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
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.

                                               [R. BANUMATHI]
New Delhi;
May   05, 2017.

      [2]  (1974) 4 SCC 201 = AIR 1974 SC 606
[3]   [4]  (2009) 6 SCC 308

      [6]  (1997) 4 SCC 161
[7]   [8]  (1975) 4 SCC 153
[9]   [10]  (1978) 4 SCC 302
[11]  [12]  1980 Supp SCC 567
[13]  [14]  (2011) 4 SCC 324
[15]  [16]  (2006) 12 SCC 64
[17]  [18]  (2011) 4 SCC 336
[19]  [20]  (2008) 5 SCC 368
[21]  [22] (2008) 17 SCC 587 : AIR 2009 SC 152
[23]  [24] (2008) 15 SCC 590 :AIR 2009 SC 331
[25]  [26] (2009) 11 SCC 334
[27]  [28] (2010) 13 SCC 657 : JT 2010 (12) SC 287
[29]  [30] AIR 1953 SC 364
[31]  [32] (1974) 3 SCC 277
[33]  [34] (2002) 3 SCC 76
[35]  [36] (2002) 8 SCC 381
[37]  [38] (1981) 2 SCC 752
[39]  [40] (1978) 4 SCC 161
[41]  [42] (2009) 11 SCC 106
[43]  [44] (2006) 10 SCC 601
[45]  [46]  (2012) 4 SCC 79
[47]  [48]  (2010) 10 SCC 259
[49]  [50]  (1973) 3 SCC 881
[51]  [52]  (1975) 3 SCC 311
[53]  [54]  (1983) 3 SCC 470
[55]  [56]  1988 Supp SCC 241
[57]  [58]  (1995) 6 SCC 447
[59]  [60]  (1997) 7 SCC 712
[61]  [62]  (2002) 7 SCC 606
[63]  [64]  (2008) 8 SCC 270
[65]  [66] (2009) 10 SCC 477
[67]  [68]  (2009) 12 SCC 546
[69]  [70]  (2010) 6 SCC 673
[71]  [72]  (2009) 9 SCC 719
[73]  [74]  1994 Supp (3) SCC 235
[75]  [76]  (2004) 7 SCC 629
[77]  [78]  (2006) 12 SCC 459
[79]  [80]  (2012) 11 SCC 196
[81]  [82]  (2000) 4 SCC 484
[83]  [84]  (2009) 13 SCC 722
[85]  [86]  (1985) 1 SCC 505
[87]  [88]  (2002) 6 SCC 470
[89]  [90]  AIR 1965 SC 277
[91]  [92]  (2002) 6 SCC 81
[93]  [94]  1988 (Supp.) SCC 686
[95]  [96] (1999) 2 SCC 428
[97]  [98]  214 (2014) DLT 646
[99]  [100]  AIR 1947 PC 67
[101] [102]  (1972) 4 SCC 659
[103] [104]  (1976) 1 SCC 828
[105] [106]  AIR 1929 Lah 344
[107] [108]  AIR 1932 Bom 286
[109] [110]  AIR 1962 SC 1116
[111] [112]  (2004) 10 SCC 657
[113] [114]  (2005) 11 SCC 600
[115] [116]  (2001) 1 SCC 652
[117] [118]  (2012) 11 SCC 205
[119] [120]  (2008) 12 SCC 173
[121] [122]  (2013) 6 SCC 588
[123] [124]  (1971) 2 SCC 75
[125] [126]  (1973) 2 SCC 406
[127] [128]  (2003) 5 SCC 746
[129] [130]  (2003) 6 SCC 73
[131] [132] (2010) 6 SCC 1
[133] [134] (2005) 9 SCC 631
[135] [136] (1975) 4 scc 480
[137] [138]  (2002) 6 SCC 710
[139] [140]  (2010) 9 SCC 1
[141] [142]  (1992) 2 SCC 474
[143] [144]  (2008) 17 SCC 190
[145] [146]  (2012) 7 SCC 569
[147] [148]  (2010) 14 SCC 444
[149] [150] (2015) 11 SCC 154 :  (2015) 2 SCR 1999 SC
[151] [152] (2003) 12 SCC 490
[153] [154] (1992) 4 SCC 225
[155] [156] (2015) 4 SCC 749
[157] [158] (1992) 4 SCC 69
[159] [160] (2013) 14 SCC 159
[161] [162]  (1994) 4 SCC 182
[163] [164]  (2004) 13 SCC 249
[165] [166]  1997 (1) Criminal Appeal Reports 369
[167] [168]  54 App. D.C. 46 (1923)
[169] [170]  113 S.CT. 2786 (1993)
[171] [172]  129 Supreme Court Reporter 2308
[173] [174]  (2001) 5 SCC 311
[175] [176]  (2009) 14 SCC 607
[177] [178]  (2010) 9 SCC 747
[179] [180]  (2011) 5 SCC 509
[181] [182]  (2011) 7 SCC 130
[183] [184]  (2011) 4 SCC 80
[185] [186]  (2012) 9 SCC 1
[187] [188] (2012) 6 SCC 107
[189] [190] (2014) 5 SCC 353
[191] [192] (2014) 2 SCC 576
[193] [194] (1997) 1 SCC 283
[195] [196] (2002) 8 SCC 18
[197] [198] (2010) 8 SCC 430
[199] [200] (2012) 6 SCC 204
[201] [202]  1985 (Supp.) SCC 611
[203] [204]  (1837) 173 ER 502
[205] [206]  (1901) AC 495
[207] [208]  AIR 1971 SC 885
[209] [210]  AIR 1961 SC 1762
[211] [212]  (1977) 4 SCC 540

      [214] (1988) 3 SCC 609
[215] [216]  (2001) 1 SCC 378
[217] [218]  (2009) 15 SCC 643
[219] [220]  (1981) 2 SCC 443
[221] [222]  (2013) 1 SCC 613
[223] [224]  (2004) 12 SCC 336
[225] [226]  (1996) 4 SCC 659
[227] [228]  (2003) 3 SCC 641
[229] [230]  (2005) 12 SCC 631
[231] [232]  (1999) 5 SCC 253
[233] [234]  (2001) 7 SCC 596
[235] [236] 1995 Supp (1) SCC 80
[237] [238] (1980) 2 SCC 665
[239] [240]  (1976) 4 SCC 190
[241] [242]  (1977) 3 SCC 68
[243] [244] (1980) 2 SCC 684
[245] [246]  (1980) 2 SCC 684
[247] [248]  (1983) 3 SCC 470
[249] [250]  (2013) 2 SCC 452
[251] [252]  (2013) 5 SCC 546
[253] [254]  (2007) 4 SCC 713
[255] [256]  (2011) 3 SCC 85
[257] [258]  (1994) 2 SCC 220
[259] [260]  (1989) 1 SCC 678
[261] [262]  AIR 1968 SC 1402
[263] [264]  (1998) 3 SCC 625
[265] [266]  (1999) 3 SCC 670
[267] [268]  (2004) 10 SCC 682
[269] [270] (1975) 3 SCC 37
[271] [272] (1976) 1 SCC 163
[273] [274] (2003) 8 SCC 93
[275] [276] (2005) 10 SCC 322
[277] [278] (2009) 5 SCC 740
[279] [280] (2009) 6 SCC 498
[281] [282] (2010) 1 SCC 58
[283] [284] (2011) 2 SCC 764
[285] [286] (2012) 4 SCC 107
[287] [288] (2014) 11 SCC 129
[289] [290] (1999) 6 SCC 60
[291] [292] (2001) 9 SCC 50
[293] [294] (2006) 12 SCC 79
[295] [296] (2005) 3 SCC 127
[297] [298] (2014) 4 SCC 69
[299] [300] (2014) 11 SCC 129
[301] [302] (2001) 9 SCC 615
[303] [304] (2011) 13 SCC 706
[305] [306] (2012) 4 SCC 257
[307] [308] (2013) 2 SCC 479
[309] [310] (2008) 13 SCC 767
[311] [312] (2016) 7 SCC 1
[313] [314] (2012) 5 SCC 766
[315] [316] (2013) 7 SCC 725
[317] [318] (2013) 9 SCC 795
[319] [320] (2014) 12 SCC 274
[321] [322] (1991) 3 SCC 471
[323] [324] (1996) 6 SCC 250
[325] [326] (2005) 3 SCC 114
[327] [328] (2005) 3 SCC 793
[329] [330] (2009) 6 SCC 667
[331] [332] (2013) 3 SCC 215
[333] [334] (2015) 1 SCC 67
[335] [336] (2013) 10 SCC 421
[337] [338] (2015) 6 SCC 652
[339] [340] 33 L Ed 2d 346 : 408 US 238 (1972)
[341] [342] (2011)  12 SCC 56
[343] [344] (2010) 9 SCC 567
[345] [346] (2011) 2 SCC 490
[347] [348] Ibid
[349] [350] (2011) 5 SCC 317
[351] [352] (2011) 7 SCC 125s
[353] [354] (1994) 3 SCC 381
[355] [356] (2008) 11 SCC 113
[357] [358] (2002) 5 SCC 234
[359] [360] (2012) 4 SCC 37
[361] [362] (1998) 2 SCC 372
[363] [364]  (2002) 1 SCC 622
[365] [366] (2015) 1 SCC 253
[367] [368]  (2013) 7 SCC 77

No comments:

Post a Comment