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SUPREME COURT OF INDIA
R. BANUMATHI, ASHOK BHUSHAN, A. S. BOPANNA, JJ.
Akshay Kumar Singh – Petitioner
Versus
State (NCT of Delhi) – Respondent
Review Petition (Criminal) D No.44603 of 2019 In Criminal Appeal Nos.609-610 of 2017
Decided On : 18-12-2019
(A) Indian Penal Code, 1860 – Sections 376(2)(g), 377 and 395 – Criminal Procedure Code, 1973 – Section 354(3) – Nirbhaya rape and murder case – Death penalty – Review petition – Three dying declarations – Accused misbehaved with prosecutrix and committed gang rape of prosecutrix in moving bus – They also committed unnatural offence and inserted iron rod in private parts of prosecutrix – In review petition, petitioner has again sought to assail merits of prosecution case and findings rendered thereon which cannot be permitted – Grounds raised by petitioner-accused in this review petition are identical to that of grounds raised by co-accused in their review petitions – Those grounds urged by co-accused in their review petitions were considered and rejected by this Court – General allegations have been made against investigating agency alleging extortion of confession and then create evidence to falsely implicate accused – Grounds raised in petition alleging improper investigation and manipulation of evidence are too general and not specific – In a criminal case, culpability or otherwise of accused are based upon appreciation of evidence adduced by prosecution and also evidence adduced by defence – Materials or news emerging in media and press as also news channels cannot be taken note of in arriving at a conclusion on culpability of accused or to test credibility of witness – Such events cannot be urged as a ground for review – Appreciation of evidence in rejecting plea of alibi does not suffer from any error apparent on face of record and this cannot be urged as a ground for review – A party is not entitled to seek review of judgment merely for the purpose of rehearing of appeal and a fresh decision – In light of aggravating circumstances and considering that case falls within the category of “rarest of rare cases”, death penalty confirmed – Review Petition dismissed. (Paras 2, 7, 14, 17, 20, 25, 27, 28, 30 and 31)
(B) Constitution of India – Articles 137 and 145 – Supreme Court Rules, 2013 – Order XLVII Rule 1 – Review petition – Scope and ambit – Scope of review is limited and review cannot be entertained except in cases of error apparent on face of record – Article 137 of Constitution of India empowers Supreme Court to review any judgment pronounced or made, subject to provisions of any law made by Parliament or any rule made under Article 145 of Constitution of India – Review in criminal proceedings is permissible only on the ground of error apparent on face of record – Review is a not a rehearing of appeal over again – In a review petition, it is not for Court to re-appreciate evidence and reach a different conclusion – Review of judgment is permitted only when it is shown that judgment suffers from error apparent on face of judgment. (Paras 8, 10 and 12)
Facts of the case:
Instant Review Petition has been preferred by petitioner-accused who was the cleaner of bus to review the judgment dated 05.05.2017 passed by this Court in Criminal Appeal Nos.609-610 of 2017 in and by which this Court confirmed the conviction and death penalty imposed upon petitioner by the trial court as well as by the High Court.
Findings of Court:
Mitigating circumstances elaborated upon by the defence by way of highlighting comparatively young age of the convicts, their socio-economic background, their unblemished antecedents and their chances of reformation, fade into insignificance.
Result : Review Petition dismissed.
JUDGMENT :
R. BANUMATHI, J.
1. This Review Petition has been preferred by the petitioner-accused Akshay Kumar Singh who was the cleaner of the bus to review the judgment dated 05.05.2017 passed by this Court in Criminal Appeal Nos.609-610 of 2017 in and by which this Court confirmed the conviction and death penalty imposed upon the petitioner by the trial court as well as by the High Court.
2. In the evening of 16.12.2012, the prosecutrix (since deceased) had gone for a movie with her friend, PW-1. At about 08:45 pm, both the prosecutrix and PW-1 left the movie theatre and reached Munirka bus stand and they boarded the bus bearing registration No. DL-1PC-0149. This bus was being driven by accused Ram Singh (since deceased) and the petitioner-Akshay Kumar Singh @ Thakur was the helper thereof. The accused misbehaved with the prosecutrix and have committed gang rape of the prosecutrix in the moving bus. They also committed unnatural offence and inserted iron rod in the private parts of the prosecutrix. The accused persons had beaten up PW-1 with iron rods and his clothes were torn off. The accused also took away all the belongings of the prosecutrix and PW-1 and thereafter, threw the prosecutrix and PW-1 in a naked/semi naked condition from the moving bus. The prosecutrix was treated at Safdarjung Hospital, Delhi where her three dying declarations were recorded. Since the condition of the prosecutrix became critical, she was shifted for further treatment on 27.12.2012 to Mt. Elizabeth Hospital, Singapore where, she died on 29.12.2012.
3. The trial court held that the complicity and guilt of the accused were proved and convicted the petitioner and other accused under Sections 120-B IPC, 376 (2)(g) read with Section 120-B IPC, 377 read with Section 120-B IPC, 365 and 366 read with Section 120-B IPC, 395 read with Section 120-B IPC, 397 read with Section 120-B IPC, 302 read with Section 120-B IPC, 307 read with Section 120-B IPC, 412 and 201 read with Section 120-B IPC and inter alia imposed death penalty upon them. Death penalty and other sentence of imprisonment imposed upon them was confirmed by the High Court. The accused had filed Criminal Appeal Nos.609-610 of 2017 before this Court.
4. Criminal appeal filed by the petitioner had earlier been dismissed by this Court vide its judgment dated 05.05.2017 in Mukesh and another v. State (NCT of Delhi) and others (2017) 6 SCC 1 on the basis of the following evidence which firmly established the presence of the petitioner at the scene of the incident and his involvement in the commission of rape on the prosecutrix :-
(i) evidence of PW-1/injured eye-witness who spoke about the occurrence in the bus; PW-1 identified the petitioner in the TIP conducted on 26.12.2012 as one of the persons who came out of the driver’s cabin from the bus and started abusing PW-1 and later, took the prosecutrix to the back side of the bus and raped her;
(ii) three dying declarations of the prosecutrix of which, in the second dying declaration (ExPW27/A), prosecutrix stated the incident in detail and that the accused persons were calling “Ram Singh, Thakur, Raju, Mukesh, Pawan and Vinay and in the third dying declaration, the prosecutrix wrote the names of the accused “Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju” including petitioner-Akshay Kumar Singh and other accused;
(iii) evidence of PW-81-Dinesh Yadav, owner of the bus in which he has stated that accused Ram Singh was the driver and petitioner was the helper in the bus in which the incident occurred;
(iv) Ex.PW71/C, report of PW-71-Dr. Ashith B. Acharaya who opined that one bite mark found on the prosecutrix could have been possibly caused by the petitioner; three other bite marks were caused by accused Ram Singh;
(v) DNA evidence – DNA profile generated from the blood-stained jeans and banian of the petitioner recovered at the behest of petitioner matched with the DNA profile of the prosecutrix; another set of DNA profile generated from jeans pant of the p
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