AKSHAY KUMAR SINGHversusSTATE (NCT OF DELHI)

342                     [2019]
              SUPREME COURT    15 S.C.R. 342
                            REPORTS                     [2019] 15 S.C.R.


A                        AKSHAY KUMAR SINGH
                                      v.
                          STATE (NCT OF DELHI)
                Review Petition (Criminal) D No. 44603 of 2019
B                                     In
                    (Criminal Appeal Nos. 609-610 of 2017)
                            DECEMBER 18, 2019
               [R. BANUMATHI, ASHOK BHUSHAN AND
C                       A. S. BOPANNA, JJ.]
             Supreme Court Rules, 2013 – Or. XLVII, r.1 – Review in death
      penalty cases – Nirbhaya Case – Criminal appeal filed by the
      petitioner-accused (cleaner of the bus) was dismissed by the
      Supreme Court vide judgment dated. 05.05.2017 in Mukesh and
D     another v. State (NCT of Delhi) and Others reported as [2017] 6 SCR
      1 – Conviction and death penalty imposed upon the petitioner by
      the trial court and the High Court was confirmed – Review petition
      – Held: Scope of review is limited – Review in the criminal
      proceedings is permissible only on the ground of error apparent
      on the face of the record – Review petition is not a rehearing of
E     the appeal over again – Grounds raised by the petitioner in this
      review petition are identical to those raised by the co-accused in
      their review petitions which were considered and rejected by
      Supreme Court – Further, general contentions put forth against the
      capital punishment cannot be gone into in this review petition – A
F     party is not entitled to seek review of the judgment merely for the
      purpose of rehearing of the appeal and a fresh decision –
      Considering the manner in which the offence was committed,
      Supreme Court in the judgment dated. 05.05.2017 held that the
      case falls within “the rarest of rare cases”– In light of the
      aggravating circumstances and considering that the case falls
G     within the category of “rarest of rare cases”, the death penalty is
      confirmed – No error apparent on the face of the record in the
      appreciation of evidence or the findings of the judgment dated.
      05.05.2017 calling for review – Constitution of India – Arts.137,
      145 – Penal Code, 1860 – 120-B, 201, 302, 307, 365, 366,
H     376(2)(g), 377, 395, 397 and 412.
                                     342
     AKSHAY KUMAR SINGH v. STATE (NCT OF DELHI)                        343


      Constitution of India– Arts.137 and 145 – Power of Supreme       A
Court u/Art.137 – Held: Art.137 empowers the Supreme Court to
review any judgment pronounced or made, subject to the provisions
of any law made by the Parliament or any rule made u/Art.145.
      Dismissing the review petition, the Court
      HELD: 1.1 Scope of review is limited and review cannot           B
be entertained except in cases of error apparent on the face of
the record. Article 137 of the Constitution of India empowers
the Supreme Court to review any judgment pronounced or made,
subject, of course, to the provisions of any law made by the
Parliament or any rule made under Article 145 of the                   C
Constitution of India. Order XLVII Rule 1 of Supreme Court
Rules, 2013 dealing with review. Review is a not a rehearing of
the appeal over again. In a review petition, it is not for the Court
to re-appreciate the evidence and reach a different conclusion.
A review of the judgment is permitted only when it is shown that
judgment suffers from error apparent on the face of the judgment.      D
The grounds raised by the petitioner-accused in this review
petition are identical to that of the grounds raised by the co-
accused in their review petitions. Those grounds urged by the
co-accused in their review petitions were considered and
rejected by this Court. [Paras 8, 10, 12 and 14] [348-F-G; 349-        E
D-E; 350-H; 351-C-D]
      P.N. Iswara Iyer and Ors. v. Registrar, Supreme Court
      of India (1980) 4 SCC 680 – followed.
      Sow Chandra Kante and Another v. Sheikh Habib
      (1975) 1 SCC 674 ; Kamlesh Verma v. Mayawati and                 F
      Others (2013) 8 SCC 320 : [2013] 11 SCR 25 ; Vikram
      Singh alias Vicky Walia and Another v. State of Punjab
      and Another (2017) 8 SCC 518 : [2017] 8 SCR 177
      – relied on.
      Mukesh and another v. State (NCT of Delhi) and others            G
      (2017) 6 SCC 1 : [2017] 6 SCR 1 – referred to.
      1.2 Two grounds raised by the petitioner in this review
petition are (i) futility of awarding death sentence in Kalyug,
where a person is no better than a dead body; and (ii) that the
level of pollution in Delhi NCR is so great that life is short         H
344            SUPREME COURT REPORTS                    [2019] 15 S.C.R.


A     anyhow and everyone is aware of what is happening in Delhi
      NCR in this regard and while so, there is no reason why death
      penalty should be awarded. It is unfortunate that such grounds
      have been raised in the matter as serious as the present case.
      The grounds raised in the petition alleging improper
      investigation and manipulation of evidence are too general and
B
      not specific. Each and every point raised by the petitioner-
      accused assailing the course of investigation was well considered
      by the trial court which had been gone through at the time of
      hearing of the criminal appeals. The same points cannot be urged
      again and again. [Paras 15, 17] [351-E; 352-A-B]
C
            2. Dying declaration – There were three dying declarations
      recorded from the prosecutrix. This Court considered the three
      dying declarations and found that the multiple dying declarations
      inspire the confidence of the Court and are credible. The plea
      of alibi taken by the petitioner-accused and the evidence
D     adduced by the petitioner was well-considered by this Court in
      Paras (247) to (269). Upon appreciation of evidence, this Court
      affirmed the findings of the trial court and the High Court
      rejecting the plea of alibi and held that plea of alibi taken by the
      petitioner is an afterthought. The appreciation of evidence in
E     rejecting the plea of alibi does not suffer from any error apparent
      on the face of the record and this cannot be urged as a ground
      for review. Elaborate submissions were made on the alleged use
      of iron rod and the same was rejected by well-considered
      reasonings in Paras (193) to (209) and (413) to (422) and the
      said findings thereon supported by the opinion of the medical
F     expert do not suffer from any error. The review petition is not
      for re-hearing of the appeal on reappreciation of the evidence
      over and over again. A party is not entitled to seek review of
      the judgment merely for the purpose of rehearing of the appeal
      and a fresh decision. [Paras 22, 25-27] [353-F; 354-D; 355-D-F;
G     356-B]
            3. Dismissal of the review petitions filed by the co-
      accused: The aggravating and mitigating circumstance and the
      affidavit filed by the petitioner was considered in detail in Para
      (324). The contention urged by the counsel for the parties and
H     learned amicus curiae were considered in paras (327) to (368)
     AKSHAY KUMAR SINGH v. STATE (NCT OF DELHI)                         345


and (511) to (518) of the judgment and the court observed that          A
the background and family circumstances cannot be taken as the
mitigating circumstances. Considering the manner in which the
offence was committed, in the judgment dated 05.05.2017, this
Court held that the case is falling within “the rarest of rare
cases”. It is not found that these findings suffer from any error
                                                                        B
apparent on the face of the record. The mitigating circumstances
elaborated upon by the defence by way of highlighting the
comparatively young age of the convicts, their socio-economic
background, their unblemished antecedents and their chances
of reformation, fade into insignificance. In light of the aggravating
circumstances and considering that the case falls within the            C
category of “rarest of rare cases”, the death penalty is
confirmed. No error apparent on the face of the record is found
in the appreciation of evidence or the findings of the judgment
dated 05.05.2017. None of the grounds raised in the review
petition call for review of the judgment dated 05.05.2017. The
                                                                        D
review petition is dismissed. [Paras 28-31] [356-D-G; 357-D]
      Mukesh v. State (NCT of Delhi) (2018) 8 SCC 149 :
      [2018] 7 SCR 898 ; Vinay Sharma and another v. State
      (NCT of Delhi) and others (2018) 8 SCC 186 : [2018]
      7 SCR 919 – referred to.
                                                                        E
                       Case Law Reference
[2017] 6 SCR 1                    referred to          Para 4
(1975) 1 SCC 674                  relied on            Para 9
[2013] 11 SCR 25                  relied on            Para 10          F
[2017] 8 SCR 177                  relied on            Para 11
(1980) 4 SCC 680                  followed             Para 12
[2018] 7 SCR 898                  referred to          Para 29
[2018] 7 SCR 919                  referred to          Para 29          G
      CRIMINAL APPELLATE JURISDICTION : Review Petition
(Criminal) Nos. 602-603 of 2019 In Criminal Appeal Nos. 609-610 of
2017.
     From the Judgment and Order dated 05.05.2017 passed in
Criminal Appeal Nos. 609-610 of 2017.                                   H
346            SUPREME COURT REPORTS                         [2019] 15 S.C.R.


A           A.P. Singh, V.P. Singh, Ms. Geeta Chauhan, Ms. Richa Singh,
      Ms. Pratima Rani, Sadashiv, Advs. for the Appellant.
            Tushar Mehta, SG, Kanu Agrawal, Ms. Swati Ghildiyal, Adit
      Khorana, Manan Popli, Rajeev Ranjan, Varun Chugh, Bhuvan Kapoor,
      B.V. Balram Das, Chirag M.Shroff, Advs. for the Respondent.
B           The Judgment of the Court was delivered by
            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
C     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)
D     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
E     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
F     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.
G
            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,
H     302 read with Section 120-B IPC, 307 read with Section 120-B IPC,
     AKSHAY KUMAR SINGH v. STATE (NCT OF DELHI)                            347
                [R. BANUMATHI, J.]

412 and 201 read with Section 120-B IPC and inter alia imposed death       A
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       B
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       C
            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;
                                                                           D
       (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,             E
            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      F
             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;                   G
       (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 petitioner matched with the DNA profile       H
348            SUPREME COURT REPORTS                        [2019] 15 S.C.R.


A                  of PW-1 and DNA profile generated from breast swab of
                   the victim which was found consistent with the DNA
                   profile of the blood of the petitioner;
             (vi) recovery of metro card and silver ring of PW-1 recovered
                  at the behest of the petitioner and identified by PW-1.
B           5. We have heard Mr. A.P. Singh, learned counsel appearing for
      the petitioner-accused No.3. We have also heard Mr. Tushar Mehta,
      learned Solicitor General appearing for NCT of Delhi assisted by Ms.
      Supriya Juneja, learned counsel.
             6. The learned counsel Mr. A.P. Singh had taken us through the
C     various grounds urged in the review petition and prayed for review of
      the judgment. The learned Solicitor General Mr. Tushar Mehta submitted
      that the evidence adduced by the prosecution and the defence plea has
      been considered threadbare both by the trial court, High Court and also
      by this Court. The learned Solicitor General submitted that upon
D     appreciation of evidence, the High Court and the Supreme Court upheld
      the findings as to the guilt of the accused and also the sentence. The
      learned Solicitor General also submitted that the very same grounds
      were raised in the review petition by the co-accused and the same was
      dismissed by this Court vide judgments in Mukesh v. State (NCT of
      Delhi) (2018) 8 SCC 149 and Vinay Sharma and another v. State
E     (NCT of Delhi) and others (2018) 8 SCC 186.
             7. In this review petition, the petitioner prays for review of the
      judgment dated 05.05.2017. In the review petition before us, the
      petitioner has again sought to assail the merits of the prosecution case
      and the findings rendered thereon which cannot be permitted.
F
             8. It is no longer res integra that scope of review is limited and
      review cannot be entertained except in cases of error apparent on the
      face of the record. Article 137 of the Constitution of India empowers
      the Supreme Court to review any judgment pronounced or made,
      subject, of course, to the provisions of any law made by the Parliament
G     or any rule made under Article 145 of the Constitution of India. Order
      XLVII Rule 1 of Supreme Court Rules, 2013 dealing with review reads
      as follows:-
             “1. The Court may review its judgment or order, but no
            application for review will be entertained in a civil proceeding
H           except on the ground mentioned in Order 47 Rule 1 of the Code,
     AKSHAY KUMAR SINGH v. STATE (NCT OF DELHI)                               349
                [R. BANUMATHI, J.]

      and in a criminal proceeding except on the ground of an error           A
      apparent on the face of the record.”
      As per the Supreme Court Rules, review in the criminal
proceedings is permissible only on the ground of error apparent on the
face of the record.
      9. The jurisdiction of this Court under Article 137 of the              B
Constitution of India has been clearly stated in Sow Chandra Kante
and Another v. Sheikh Habib (1975) 1 SCC 674, wherein this Court
held as under:-
      “A review of a judgment is a serious step and reluctant resort to
      it is proper only where a glaring omission or patent mistake or         C
      like grave error has crept in earlier by judicial fallibility. A mere
      repetition through different counsel of old and overruled
      arguments, a second trip over ineffectually covered ground or
      minor mistakes of inconsequential import are obviously
      insufficient.”                                                          D
       10. Review is a not a rehearing of the appeal over again. In a
review petition, it is not for the Court to re-appreciate the evidence and
reach a different conclusion. The scope of review jurisdiction has been
elaborately considered by this Court in number of cases and the well
settled principles have been reiterated time and again. In Kamlesh Verma      E
v. Mayawati and Others (2013) 8 SCC 320, the Supreme Court held
as under:-
      “17. In a review petition, it is not open to the Court to
      reappreciate the evidence and reach a different conclusion, even
      if that is possible. Conclusion arrived at on appreciation of           F
      evidence cannot be assailed in a review petition unless it is shown
      that there is an error apparent on the face of the record or for
      some reason akin thereto. This Court in Kerala SEB v. Hitech
      Electrothermics & Hydropower Ltd. (2005) 6 SCC 654 held
      as under: (SCC p. 656, para 10)
                                                                              G
      “10. … In a review petition it is not open to this Court to
      reappreciate the evidence and reach a different conclusion, even
      if that is possible. The learned counsel for the Board at best
      sought to impress us that the correspondence exchanged between
      the parties did not support the conclusion reached by this Court.
      We are afraid such a submission cannot be permitted to be               H
350            SUPREME COURT REPORTS                          [2019] 15 S.C.R.


A           advanced in a review petition. The appreciation of evidence on
            record is fully within the domain of the appellate court. If on
            appreciation of the evidence produced, the court records a finding
            of fact and reaches a conclusion, that conclusion cannot be
            assailed in a review petition unless it is shown that there is an
            error apparent on the face of the record or for some reason akin
B
            thereto. It has not been contended before us that there is any
            error apparent on the face of the record. To permit the review
            petitioner to argue on a question of appreciation of evidence
            would amount to converting a review petition into an appeal in
            disguise.”
C
            11. Considering the scope of review under Article 137 of the
      Constitution of India and observing that normally in a criminal
      proceeding, review applications cannot be entertained except on the
      ground of error apparent on the face of the record, in Vikram Singh
      alias Vicky Walia and Another v. State of Punjab and Another
D     (2017) 8 SCC 518, the Supreme Court held as under:-
            “23. In view of the above, it is clear that scope, ambit and
            parameters of review jurisdiction are well defined. Normally in
            a criminal proceeding, review applications cannot be entertained
            except on the ground of error apparent on the face of the record.
E           Further, the power given to this Court under Article 137 is wider
            and in an appropriate case can be exercised to mitigate a manifest
            injustice. By review application an applicant cannot be allowed
            to reargue the appeal on the grounds which were urged at the
            time of the hearing of the criminal appeal. Even if the applicant
            succeeds in establishing that there may be another view possible
F
            on the conviction or sentence of the accused that is not a
            sufficient ground for review. This Court shall exercise its
            jurisdiction to review only when a glaring omission or patent
            mistake has crept in the earlier decision due to judicial fallibility.
            There has to be an error apparent on the face of the record
G           leading to miscarriage of justice to exercise the review jurisdiction
            under Article 137 read with Order 40 Rule 1. There has to be a
            material error manifest on the face of the record with results in
            the miscarriage of justice.”
             12. A review of the judgment is permitted only when it is shown
H     that judgment suffers from error apparent on the face of the judgment.
      AKSHAY KUMAR SINGH v. STATE (NCT OF DELHI)                                 351
                 [R. BANUMATHI, J.]

In P.N Iswara Iyer and Others v. Registrar, Supreme Court of India               A
(1980) 4 SCC 680, while considering Order XL Rule 1 of the Supreme
Court Rules, 1996, the Constitution Bench of the Supreme Court
observed that Order XL Rule 1 affords the wider set of grounds for
review of orders in civil proceedings, but limits the grounds vis-à-vis
criminal proceedings to errors apparent on the face of the judgment.
                                                                                 B
       13. Applying the above parameters of the review jurisdiction, it
is to be seen whether the petitioner has made out any ground indicating
error apparent on the face of the record warranting review of our
judgment dated 05.05.2017.
       14. Even at the outset, it is to be pointed out that the grounds          C
raised by the petitioner-accused in this review petition are identical to
that of the grounds raised by the co-accused in their review petitions.
Those grounds urged by the co-accused in their review petitions were
considered and rejected by this Court in Mukesh v. State (NCT of
Delhi) (2018) 8 SCC 149 and Vinay Sharma and another v. State
                                                                                 D
(NCT of Delhi) and others (2018) 8 SCC 186.
        15. At this juncture, we would like to point out two grounds raised
by the petitioner in this review petition viz., (i) futility of awarding death
sentence in Kalyug, where a person is no better than a dead body;
and (ii) that the level of pollution in Delhi NCR is so great that life is
                                                                                 E
short anyhow and everyone is aware of what is happening in Delhi NCR
in this regard and while so, there is no reason why death penalty should
be awarded. According to the petitioner, in view of the above, he should
be spared of the death sentence. We find it unfortunate that such
grounds have been raised in the matter as serious as the present case.
                                                                                 F
        16. The petitioner has also raised the plea that death penalty is
the ultimate denial of human rights and that it violates the right to life;
it also goes against the principle of non-violence. In the review petition,
the petitioner has put forth the general case against the capital
punishment by stating that only the poor and downtrodden are more
likely to be sentenced with death sentence. Such general contentions             G
put forth against the capital punishment cannot be gone into in this
review petition.
       17. The petitioner has raised the plea as to the lack of professional
skills of the investigating agency and the need for an unbiased
investigation. In the petition, general allegations have been made               H
352            SUPREME COURT REPORTS                          [2019] 15 S.C.R.


A     against the investigating agency alleging extortion of confession and then
      create evidence to falsely implicate the accused. The grounds raised
      in the petition alleging improper investigation and manipulation of
      evidence are too general and not specific. It is to be pointed out that
      each and every point raised by the petitioner-accused assailing the
      course of investigation was well considered by the trial court which
B
      we have gone through at the time of hearing of the criminal appeals.
      The same points cannot be urged again and again.
             18. So far as the dying declaration is concerned, the
      petitioner has raised the same contention which was raised earlier that
      is, according to the petitioner, only the first dying declaration (Ex.PW49/
C
      A) recorded by PW-49-Dr. Rashmi Ahuja where the prosecutrix has
      neither named nor mentioned the name of any of the accused persons,
      has to be relied upon. Contention of the petitioner is that the second
      dying declaration (Ex.PW27/A) recorded by PW-24-Dr. Usha
      Chaturvedi, SDM on 21.12.2012 could not have been recorded as the
D     victim was under the life support and she could not have given four
      pages of dying declaration. Further contention of the petitioner is that
      the third dying declaration recorded by PW-30-Pawan Kumar,
      Metropolitan Magistrate where the victim has named the petitioner and
      other accused was a tutored version and cannot be relied upon.
E            19. Mr. A.P. Singh, learned counsel appearing for the petitioner-
      accused has contended that investigation in the present case is flawed
      and unreliable. It was submitted that insofar as the recording of the
      statement of witnesses under Section 161 Cr.P.C., manner of arrest of
      the accused, conduct of test identification parade are doubtful. Various
      contentions assailing the course of investigation have been raised both
F
      before the trial court as well as before the High Court and this Court
      which have been considered threadbare and were rejected. We do
      not find any merit in the contention of the learned counsel for the
      petitioner assailing the investigation.
             20. The learned counsel submitted that because of the media
G     pressure, the petitioner and other accused have been falsely implicated.
      Taking us through the averments made in para 3(f) of the review
      petition, the learned counsel submitted that PW-1-Awninder Pratap Singh
      had taken heavy amount as bribe and this has been highlighted in some
      of the news channels which affect the credibility of the evidence of
H     PW-1. It was submitted that in this regard, Heera Lal Gupta, father
      AKSHAY KUMAR SINGH v. STATE (NCT OF DELHI)                               353
                 [R. BANUMATHI, J.]

of co-accused Pawan Gupta had filed a complaint vide Diary No.26A              A
on 02.11.2019 before SHO, PS R.K. Puram, Sector-12, New Delhi and
also before Deputy Commissioner of Police, Vasant Vihar. The
averments made in para 3(f) of the review petition are subsequent
events unsupported by any material. In a criminal case, culpability or
otherwise of the accused are based upon appreciation of evidence
                                                                               B
adduced by the prosecution and also the evidence adduced by the
defence. The materials or the news emerging in the media and press
as also the news channels cannot be taken note of in arriving at a
conclusion on the culpability of the accused or to test credibility of the
witness. Such events cannot be urged as a ground for review.
       21. The learned counsel appearing for the petitioner-accused has        C
taken us through the averments made in para 3(g) of the review petition
and also the clippings of book titled “Black Warrant” written by Sunil
Gupta, a former law officer of Central Jail, Tihar, Delhi who served
long time in Tihar jail. The learned counsel submitted that in the book
written by the above officer, the officer has expressed his opinion that       D
Ram Singh, accused No.1 was murdered in Tihar jail on 11.03.2013.
Here again, the opinion of the said former law officer Sunil Gupta is
only his opinion which is not supported by any material. If the former
law officer had any doubt regarding death of Ram Singh, the said officer
could have offered himself to appear as a defence witness or he could
have filed an affidavit before any of the courts, either trial court or High   E
Court or before the Supreme Court. The opinion of the said officer
Sunil Gupta which is not supported by any material, cannot be a ground
for reviewing our judgment.
      22. As pointed out in the judgment, there were three dying
declarations recorded from the prosecutrix:-                                   F

         (i) in the first dying declaration (Ex.PW-49/A) recorded by
             Dr. Rashmi Ahuja (PW-49) on 16.12.2012 at 11.15 pm, the
             prosecutrix has stated that more than two men committed
             rape on her after which, she does not remember the sexual
             intercourse; the prosecutrix also stated that she was             G
             subjected to unnatural sex and she was bitten over her lips,
             cheeks and breast;
        (ii) in the second dying declaration (Ex.PW-27/A) recorded by
             PW-27-Usha Chaturvedi, SDM on 21.12.2012 at 09.00 pm,
             the prosecutrix has narrated the entire incident in great         H
354             SUPREME COURT REPORTS                         [2019] 15 S.C.R.


A                  detail, specifying the role of each of the 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. Prosecutrix also stated that the accused
                   were calling each other “Ram Singh, Thakur, Raju,
B
                   Mukesh, Pawan and Vinay”; and
              (iii) in the third dying declaration (Ex.PW-30/D) recorded on
                    25.12.2012 at 1.00 p.m by PW-30-Pawan Kumar,
                    Metropolitan Magistrate by putting multiple choice
                    questions to the victim and getting answers by gestures and
C
                    writing. While giving third dying declaration, prosecutrix
                    revealed the names of the accused by writing in her own
                    handwriting viz. “Ram Singh, Mukesh, Vinay, Akshay, Vipin,
                    Raju”.
             This Court considered the three dying declarations in the light of
D
      the well-settled principles and found that the multiple dying declarations
      inspire the confidence of the Court and are credible. The above
      contentions were earlier raised and were considered by this Court in
      paras (148) to (164), (186) to (192) and (395) to (417) of the judgment
      and rejected. While so, the petitioner cannot raise the same plea.
E
             23. So far as the plea of alibi, contention of the petitioner is that
      he was not present in Delhi on the night of 16.12.2012 and that he
      accompanied his sister-in-law Sarita Devi (DW-15) along with her son
      Kundan. He boarded Mahabodhi Express on 15.12.2012 and left for
      Aurangabad, Bihar from Platform No.9, New Delhi Railway Station.
F     Contention of the petitioner that the evidence adduced by the petitioner
      to prove his presence in the Karmalahang, P.S. Thandva, District-
      Aurangabad, that is the evidence of DW-1, local auto driver, DW-12-
      Sarju Singh who has spoken about the petitioner reaching his house in
      his native village on 16.12.2012 and DW-13-Rajmohan, father-in-law
      of petitioner and DW-14-Punita Devi, wife of petitioner who have
G
      deposed that the petitioner came to their house in the native village
      Karmalahang along with Sarita Devi (DW-15), would show that the
      petitioner was not present in Delhi on the night of 16.12.2012. It was
      submitted that though the defence has showed booked ticket details of
      Mahabodhi Express from New Delhi to Aurangabad on 15.12.2012 to
H     prove the departure of the petitioner, this aspect was not appreciated
      AKSHAY KUMAR SINGH v. STATE (NCT OF DELHI)                              355
                 [R. BANUMATHI, J.]

by the court and the petitioner’s plea of alibi was erroneously turned        A
down.
       24. To substantiate the plea of alibi, the petitioner has examined
DW-11-Chavinder, Auto Driver who has taken the petitioner and his
family members from Anugrah Narayan Railway Station, District-
Aurangabad, Bihar to his native village, Karmalahang. DW-12-Sarju             B
Singh, DW-13-Rajmohan, father-in-law of petitioner and DW-14-wife
of the petitioner have spoken about the presence of petitioner in the
village. DW-15-Sister-in-law of petitioner whom the petitioner claims
had accompanied her on 15.12.2012. Considering the evidence of DWs
12, 14 and 15 in Para (256), this Court has observed that DWs 12, 14
and 15 are all relatives of accused Akshay Kumar Singh alias Thakur           C
and that as observed by both the courts, they tried to wriggle the
petitioner out of the messy situation as is the natural instinct of the
family members.
       25. The plea of alibi taken by the petitioner-accused and the
evidence adduced by the petitioner has been well-considered by this           D
Court in Paras (247) to (269). Upon appreciation of evidence, this
Court affirmed the findings of the trial court and the High Court rejecting
the plea of alibi and held that plea of alibi taken by the petitioner is
an afterthought. We do not find any error apparent on the face of the
record in consideration of evidence and rejection of the plea of alibi.       E
The appreciation of evidence in rejecting the plea of alibi does not suffer
from any error apparent on the face of the record and this cannot be
urged as a ground for review.
       26. The next contention urged by the petitioner is the use of iron
rod and absence of injury to the uterus on the alleged insertion of the       F
iron rod in the private parts of the victim. Elaborate submissions were
made on the alleged use of iron rod and the same was rejected by well-
considered reasonings in Paras (193) to (209) and (413) to (422) and
the said findings thereon supported by the opinion of the medical expert
do not suffer from any error.
                                                                              G
      27. The other contentions viz. (i) CCTV footage of Hotel Delhi
Airport was not properly examined; (ii) the bus bearing registration
No.DL-1PC-0149 was falsely implicated; (iii) PW-81-owner of the bus
was in judicial custody for six months before his examination in the court
and he was so detained in custody only to bring pressure upon him to
depose in favour of the prosecution; and (iv) the petitioner-accused was      H
356            SUPREME COURT REPORTS                          [2019] 15 S.C.R.


A     photographed earlier and the same was shown to PW-1 to enable him
      to identify the petitioner-accused in the test identification parade. These
      contentions and other contentions assailing the case of the prosecution
      were all raised earlier and upon consideration of evidence, the same
      were rejected by this Court. The review petition is not for re-hearing
      of the appeal on reappreciation of the evidence over and over again.
B
      A party is not entitled to seek review of the judgment merely for the
      purpose of rehearing of the appeal and a fresh decision.
             28. On the question of award of death sentence, the Court has
      considered the aggravating and mitigating circumstances. In Paras (322)
      to (368) and (511) to (518) of the judgment, while considering the
C
      question of death sentence, opportunity was granted to the petitioner
      accused and also other accused to file their affidavits as to their family
      background, criminal antecedents, possibility of reformation and such
      other relevant factors. The petitioner accused through his counsel, Mr.
      A.P. Singh has filed an affidavit stating his family background and stating
D     that he has no criminal antecedent and that his case is not falling under
      “the rarest of rare cases” to affirm the death sentence, which contention
      was considered and rejected. The aggravating and mitigating
      circumstance and the affidavit filed by the petitioner was considered
      in detail in Para (324). The contention urged by the counsel for the
E     parties and learned amicus curiae were considered in paras (327) to
      (368) and (511) to (518) of the judgment and the court observed that
      the background and family circumstances cannot be taken as the
      mitigating circumstances. Considering the manner in which the offence
      was committed, in the judgment dated 05.05.2017, this Court held that
      the case is falling within “the rarest of rare cases”. We do not find
F     that these findings suffer from any error apparent on the face of the
      record. The mitigating circumstances elaborated upon by the defence
      by way of highlighting the comparatively young age of the convicts,
      their socio-economic background, their unblemished antecedents and
      their chances of reformation, fade into insignificance. In light of the
G     aggravating circumstances and considering that the case falls within
      the category of “rarest of rare cases”, the death penalty is confirmed.
            29. Insofar as the submission of learned counsel for the petitioner-
      accused that the death penalty has been abolished in UK and several
      other Latin American countries and Australian States, the same
H     contentions were raised by Mr. A.P. Singh in the earlier review petitions
      AKSHAY KUMAR SINGH v. STATE (NCT OF DELHI)                                357
                 [R. BANUMATHI, J.]

and the same were dismissed. [vide Mukesh v. State (NCT of Delhi)               A
(2018) 8 SCC 149 and Vinay Sharma and another v. State (NCT
of Delhi) and others (2018) 8 SCC 186]
       30. Dismissal of the review petitions filed by the co-
accused: The review petition filed by the co-accused were dismissed
as having no merit, on 09.07.2018 Mukesh v. State (NCT of Delhi)                B
(2018) 8 SCC 149. The court observed that the submissions urged
by the other accused were already considered while delivering the
judgment and were rejected. The same points were earlier raised in
the review petitions filed by other co-accused. The grounds raised in
the present review petition are almost repetition of the arguments raised
in the earlier review petitions which were rejected and in our view,            C
cannot be raised again and again.
       31. We do not find any error apparent on the face of the record
in the appreciation of evidence or the findings of the judgment dated
05.05.2017. None of the grounds raised in the review petition call for
review of the judgment dated 05.05.2017. The review petition is                 D
dismissed.


Divya Pandey                                       Review petition dismissed.

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