VINAY SHARMA & ANR.versusSTATE OF NCT OF DELHI

                        [2018] 7 S.C.R. 919                            919


                    VINAY SHARMA & ANR.                                A
                                 v.
                   STATE OF NCT OF DELHI
           (Review Petition (Crl.) Nos. 671-673 of 2017)
                                 In                                    B
           (Criminal Appeal Nos. 608 & 609-610 of 2017)
                            JULY 09, 2018
          [DIPAK MISRA, CJI, R. BANUMATHI AND
                      ASHOK BHUSHAN, JJ.]                              C
       Review – Nirbhaya Case – Gang rape and murder of a young
woman – All four accused convicted and sentenced to death by the
Trial Court – Death penalty confirmed by the High Court – Appeals
dismissed by the Supreme Court – Review petitions filed by the two
petitioners-accused – Held: In review petitions, petitioners cannot
                                                                       D
ask the Court to re-hear the appeals on merits which submissions
had already been noted, considered and rejected – Criminal appeals
filed by the petitioners against the judgment of the High Court were
heard by the Supreme Court giving them sufficient time for raising
all possible submissions and same were duly considered in the main
judgment – In instant case, no ground has been made out which          E
may furnish any ground to review the judgment – Supreme Court
Rules, 2013 – Or.XLVII, r.1 – Constitution of India – Art.137.
      Dismissing the Review Petitions, the Court
      HELD: 1. An application to review a judgment is not to be
lightly entertained and this Court could exercise its review           F
jurisdiction only when those grounds are made out as provided
in Order XLVII Rule 1 of the Supreme Court Rules, 2013 framed
under Article 145 of the Constitution of India. As per rule, review
in a criminal proceeding is permissible only on the ground of
error apparent on the face of the record. [Paras 20, 21][927-C-        G
D, F]
      2. The submission made by petitioners attacking the
evidence of PW-1 sole eye-witness, who was also injured in the
incident need not to be considered in these review petitions. All
submissions impeaching evidence of PW-1 were made when the             H
                                919
920            SUPREME COURT REPORTS                      [2018] 7 S.C.R.


A     appeals were heard on merit. This Court had considered all
      submissions attacking the evidence of PW-1 and after examining
      the relevant evidences had relied on evidence of PW-1. In the
      review petitions, petitioners cannot ask the Court to re-hear the
      appeals on merits which submissions had already been noted,
      considered and rejected. [Para 28][933-E-G]
B
            3. The submission of Petitioners that Bus Ex.P-1, has been
      falsely implicated is also stated to be rejected. All these
      submissions were considered by this Court while delivering the
      judgment in paragraphs 98-107. This Court has rejected the
      submission of the petitioners that it was a case of plantation of
C     Bus, the Bus was found to be involved in the incident from the
      evidence on record. [Para 29][933-G-H]
            4. All the contentions raised regarding the three dying
      declarations of the victim have been considered in detail.
      Considering all the three dying declarations, in the light of well-
D     settled principles, this Court held that all the three dying
      declarations are true, voluntary and consistent. [Para 35][935-
      E-F]
            5. The plea of alibi put forth by petitioner no.1 that he was
      present in the musical programme organised by the SCC Unit of
E     the Church in the DDA Park in his locality has been elaborately
      considered by this Court which has also referred to the evidence
      of PW-84 and PW-85 who have deposed that their church(es)
      never organised any musical programme/event in the DDA park.
      While considering the plea of alibi raised by petitioner no.1
F     referring to the evidence of DW-5 mother of petitioner no.1, DW-7
      and DW-9 this Court held that the plea of alibi raised by petitioner
      no.1 was not acceptable. [Para 39][936-G-H; 937-A-C]
            6. Plea of alibi raised by petitioner no.1 was also considered
      in the light of the footprints lifted from the bus (Ext.P/1). PW-46
G     Senior Scientific Officer (Fingerprints), CFSL, CBI examined the
      chance prints lifted from the bus marked as “Q.1” and “Q.4”
      was found identical with the left palmprint and right thumb
      impression of petitioner no.1. After referring to the evidence of
      PW-46 and the expert report (Ext. PW-46/D), this Court held
      that the evidence clearly establishes the presence of petitioner
H
         VINAY SHARMA v. STATE OF NCT OF DELHI                           921


no.1 in the bus. There is no merit in the contention that the plea       A
of alibi was not considered by this Court. [Para 40][937-C-E]
      7. Likewise, video clippings relied upon by petitioner no.1
(Ext.DW-10/1) was considered in the judgment wherein this Court
held that petitioners were not in the DDA District Park at 08:16
pm on 16.12.2012. [Para 41][937-F]                                       B
       8. The issue of juvenility of petitioner no.1 was considered
by the trial court and trial court on the basis of the materials on
record held that petitioner No.1 was not a juvenile. The trial court
on being fully satisfied that petitioner is not a juvenile has rightly
rejected the application for ossification test submitted by              C
petitioner No.1. [Para 42][937-G-H]
       9. The submission of the petitioner No.2 that he was
juvenile at the time of occurrence was also considered by the
trial court and rejected. The trial court on the basis of the material
placed before it had rightly concluded that petitioner No.2 was          D
not a juvenile. The respondent has rightly referred to the
proceedings of trial court dated 10.09.2013. In this respect this
submission also does not furnish any ground for review of the
judgment. [Para 43][938-A-B]
       10. The criminal appeals filed by the appellants (petitioners     E
herein) against the judgment of the High Court were heard by
this Court giving them sufficient time for raising all possible
submissions. The hearing in criminal appeals continued about 38
days. The appellants/petitioners had made elaborate submissions
which were all duly considered in main judgment. In these review
petitions no ground has been made out which may furnish any              F
ground to review the judgment. [Para 44][938-B-D]
      Kamlesh Verma v. Mayawati and 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 – relied on.                                               G
      Bachan Singh v. State of Punjab (1980) 2 SCC 684;
      Sow Chandra Kante and another v. Sheikh Habib
      (1975) 1 SCC 674 P.N. Eswara Iyer and others v.
      Registrar, Supreme Court of India (1980) 4 SCC 680:
      [1980] 2 SCR 889 – referred to.                                    H
922            SUPREME COURT REPORTS                          [2018] 7 S.C.R.


A                                Case Law Reference
              (1980) 2 SCC 684           referred to              Para 13
              (1975) 1 SCC 674           referred to              Para 20
              [1980] 2 SCR 889           referred to              Para 21
              [2013] 11 SCR 25           relied on                Para 22
B
              (2017) 8 SCC 518           relied on                Para 23
              CRIMINAL APPELLATE JURISDICTION: Review Petition
      (Criminal) Nos. 671 - 673 of 2017 in Criminal Appeal No. 608 & 609-
      610 of 2017.
              From the Judgment and Order dated 13.03.2014 of the High Court
C
      of Delhi at New Delhi in Criminal Appeal No. 1399 & 1414 of 2013 &
      Death Reference No. 6 of 2013.
              A. P. Singh, V. P. Singh, Ms. Geeta Chauhan, Ms. Pratima Rani,
      Pawan Trivedi, Ms. Surekha Srivastava, S. P. Singh, C. M. Sharma,
      Harshit Bhadauria for M. M. Kashyap, Advs. for the petitioners.
D             Sidharth Luthra, Sr. Adv., Ms. Supriya Juneja, Ms. Drishti
      Harpalani, Kumar Vaibhav, Mrinal Srivastava, Karan Khaitan, Sameer
      Chaudhary, Advs. for the respondent.
              The Judgment of the Court was delivered by
              ASHOK BHUSHAN, J. 1. These review petitions have been
E     filed by two applicants Vinay Sharma-accused No.1 and Pawan Kumar
      Gupta-accused No.2 to review the judgment of this Court dated
      05.05.2017 by which judgment this Court had dismissed the criminal
      appeals filed by the petitioners challenging the order of the High Court
      confirming the death reference and dismissing the criminal appeals filed
F     by the petitioners against the order of conviction and award of death
      sentence.
              2. Both the petitioners were tried for rape and murder of a 23
      years’ age lady -Nirbhaya (changed name). The trial court convicted
      the petitioners along with three others and awarded death sentence to
      all the four accused. Death reference No.6 of 2013 Was sent by the trial
G
      court to the High Court. Separate criminal appeals were also filed by
      the petitioners challenging the judgment of the trial court. Delhi High
      Court vide its judgment dated 13.03.2014 confirmed the death penalty to
      all the four convicts including petitioners, Vinay Sharma, appellant No.1
      in Criminal Appeal No. 609 of 2017, Pawan Kumar Gupta, appellant
H
          VINAY SHARMA v. STATE OF NCT OF DELHI                                   923
                   [ASHOK BHUSHAN, J.]

No.1 in Criminal Appeal Nos.608 of 2017. The appeals were dismissed               A
by the judgment of this Court dated 05.05.2017. The petitioners aggrieved
by the said judgment dated 05.05.2017 by which all the appeals were
dismissed have filed these review petitions praying for reviewing the
judgment dated 05.05.2017.
       3. We have heard the learned counsel, Shri A.P. Singh appearing            B
for the petitioners and Shri Sidharth Luthra, learned senior counsel for
the State.
       4. Shri A.P. Singh learned counsel for the peititoners in support of
the review petitions has urged several grounds. Shri Singh submits that
death penalty in India needs to be abolished. He submits that there are           C
several reasons for opposing death penalty which broadly speaking, they
fall under two categories, moral and practical. This also goes against the
principle of non-violence that India has advocated for decades. In the
year 1966, the Bill introducing death penalty abolition was passed by the
House of Parliament in England. He further submitted that in a large
number of countries death penalty has been abolished. In his submission           D
he has referred the names of several Latin American countries and
several Australian States.
       5. Apart from above, several other contentions have been advanced
by Shri A.P. Singh which we proceed to note in seriatim. Shri Singh
submits that investigation and trial has been carried out with the sole           E
purpose of survival of the prosecuting agency. The investigation is
engaged in maladroit effort to book the vulnerable and the innocent so
as to disguise and cover there inefficiency to catch the real culprits. The
political class is using investigating agencies as tools for partisan political
objective.                                                                        F
       6. PW.1, during his cross-examination was confronted with his
statement Ex.PW-1/A qua the factum of not disclosing the use of iron
rod, the description of Bus, the name of assailants either in MLC Ex.PW-
51/A or in his complaint Ex.PW-1/A. The Bus, Ex.P-1 has been falsely
implicated in the present case. CCTV footage was not properly examined
                                                                                  G
to check all possible Buses plying on the said route. The Bus was taken
to Tyagraj Stadium instead of the Police Station to avoid the media and
to facilitate the planting of evidence.
      7. That the three dying declarations have been contrived and
deserved to be kept out of consideration and the dying declarations do
                                                                                  H
924             SUPREME COURT REPORTS                           [2018] 7 S.C.R.


A     not inspire confidence for variations in them relating to the number of
      assailants, the description of Bus, the identity of accused etc. If at all
      any dying declaration is to be relied on, it is first dying declaration made
      on 16.12.2012 and recorded by PW-49, Dr. Rashmi Ahuja, which dying
      declaration only states that there were 4 to 5 persons in the Bus.
B           8. In the statement recorded in MLC Ex.PW-49/A prosecutrix
      has neither named any of the accused nor mentioned the factum of iron
      rod being used by the accused persons. The prosecutrix could not have
      given such a lengthy dying declaration on 21.12.2012 when she was
      continuously on morphine. Third dying declaration recorded by the
      Metropolitan Magistrate, PW-30, on 25.12.2012, through gesture and
C     writings is controverted by allegations of false medical fitness certificate
      and absence of videography. The use of iron rod was not mentioned by
      PW-1 in his statement. Had the iron rod been really inserted through the
      vagina, it would have first destroyed the uterus before the intestines
      were pulled out. There were no rod related injuries in her uterus and
D     medical science too does not assist the prosecution in their claim.
            9. The DNA test can not be treated as accurate, since there was
      blood transfusion as the prosecutrix required blood and when there is
      mixing of blood, the DNA profile is likely to differ.
             10. The High Court has failed to appreciate that petitioner No.1,
E     Vinay Sharma on the date of incident and time was in a musical
      programme arranged by S.C.C. unit of Church in his locality and he was
      there from 8.15 p.m. to 11/12 p.m. on 16.12.2012. The presence of
      petitioner No.1 in musical show has been witnessed by defence witnesses
      who had deposed before the Court. Ram Babu,DW-10 had also
F     videographed the show from the mobile phone of petitioner No.1 which
      was produced before the trial court.
             11. The application for ossification test submitted by petitioner
      No.1 was wrongly turned down by the trial court. The petitioner was
      actually born on 01.03.1995 but his date of birth given by his father was
G     01.03.1994 which was only for the purpose of getting him admitted in
      the MCD School. The petitioner was only 17 years 8 months and 15
      days old at the time of incident.
            12. The real date of birth of petitioner No.2 is 08.10.1996 and he
      was also minor on the date of incident. The petitioners were not habitual
H
          VINAY SHARMA v. STATE OF NCT OF DELHI                                925
                   [ASHOK BHUSHAN, J.]

offenders. Number of dacoits have surrendered for the last several             A
decades and have reformed themselves.
       13. Shri Sidharth Luthra, learned senior counsel appearing for the
State refuting the submissions of the petitioners submitted that the
petitioners already in a long hearing of the appeals before this Court
have made all possible submissions which have been considered by this          B
Court while deciding the appeals on 05.05.2017, the review petition is
nothing but an effort by the petitioners to re-argue the appeals on merits
which is not permissible under the law. No grounds have been made out
to consider the review petitions. In so far as the submission of the learned
counsel for the petitioners that the death penalty be abolished in India,
Shri Luthra submits that the said submission need not to be gone into in       C
these review petitions. It is submitted that death penalty has already
been upheld by this Court by the Constitution Bench of this Court in
Bachan Singh vs. State of Punjab, (1980) 2 SCC 684. He submits
that death penalty being still in the statute book it is not open for the
petitioners to argue that the death penalty be abolished in this country.      D
The abolition of the death penalty is a legislative function and unless the
Parliament passes an amending Act it is not for the Courts to consider
the said submission.
       14. With regard to the submissions of the petitioners that
investigation was faulty and prosecuting agencies had roped in the             E
petitioners, it is submitted that prosecution was scientifically carried out
in efficient manner which has also been noted by this Court and any
person against the prosecution are unjustified and have to be ignored.
       15. The evidence of PW-1 and all infirmities which are sought to
be pointed out in these review petitions have already been considered          F
and gone into by this Court. Learned counsel has referred to in paragraphs
65 to 97 and 425 to 434 of the judgment where this Court has thoroughly
considered all submissions regarding evidence of PW-1 and this Court
has rejected the inconsistencies, shortcomings and omissions as being
pointed by the petitioners. Coming to the submission that the Bus, P-1
has been falsely implicated, Shri Luthra submits that apart from CCTV          G
footage where Bus was noticed twice passing in front of the hotel, there
were other evidences, namely finger prints, wound stains and other objects
obtained from the Bus which proved that the Bus was involved in the
incident. Shri Luthra has referred to paragraphs 104 and 105 where this
argument has been noted and rejected by this Court.                            H
926             SUPREME COURT REPORTS                            [2018] 7 S.C.R.


A             16. On the submissions raised by the learned counsel for the
      petitioners regarding dying declarations, Shri Luthra submits that all
      arguments pertaining to dying declarations have been considered and
      dealt with by this Court in paragraphs 148 to 192 of the judgment dated
      05.05.2017 and petitioners cannot be allowed to reagitate the same which
      have already been considered and rejected by this Court. With regard to
B
      first dying declaration which was the case history recorded by Dr. Rashmi
      Ahuja, this Court has considered all aspects and had already held that
      there was no infirmity in noticing the facts as could be disclosed by the
      prosecutrix at that time when she had undergone traumatic experience
      immediately before.
C             17. The non-mention of use of iron rod in the MLC or PW-1’s
      statement has also been considered by this Court and this Court had
      held and found use of iron rod from the evidence. The statement of PW-
      1 pertaining to use of iron rod to injure the prosecutrix has also been
      considered and noticed by this Court. The DNA reports have been
D     examined in detail by this Court including blood transfusion which has
      also been considered in paragraphs 233-234. With regard to alibi of Vinay
      Sharma that he, at the relevant time, was in a musical programme, this
      Court in its judgment dated 05.05.2017 has considered and rejected the
      plea of alibi after consideration of Defence evidence. The same argument
      cannot be allowed to be raised in the review petition. In so far as the
E     argument that petitioner No.1, Vinay Sharma was a juvenile at the time
      of the commission of the offence, Shri Luthra mentioned order of the
      trial court dated 10.01.2013 which mentioned that age verification report
      of Vinay and Pawan have been received and they do not dispute the age
      verification report filed by the IO. The prosecuiton has placed the certified
F     copy of the admission register of the first attended school along with the
      certified copy of the admission form of the first class of accused-Vinay
      Sharma and trial court after considering all evidences had held that Vinay
      Sharma was more than 18 years of age at the time of commission of
      offence. On the claim that Pawan was a juvenile, Shri Luthra referred
      to the order dated 10.01.2013 where age verification report of Pawan
G     has been received and also certified copies had been filed on record.
      The report had referred to the written statement of the parents of both
      these accused where they have confirmed the age of their wards. There
      was no infirmity in the trial court taking decision that both were major
      and the trial court proceeded accordingly. There is no substance in the
H     submission raised by the learned counsel for the petitioners.
         VINAY SHARMA v. STATE OF NCT OF DELHI                                927
                  [ASHOK BHUSHAN, J.]

       18. We have considered the submissions of the parties and perused      A
the records.
       19. Before we enter into the submissions raised in these review
petitions, it is useful to recapitulate the scope and grounds available for
exercise of jurisdiction by this Court under Article 137. Order XLVII
Rule 1 of the Supreme Court Rules, 2013 dealing with review is as             B
follows:
      “i. The Court may review its judgment or order, but no application
      for review will be entertained in a civil proceeding except on the
      ground mentioned in Order XLVII, rule 1 of the Code, and in a
      criminal proceeding except on the ground of an error apparent on        C
      the face of the record.”
       20. An application to review a judgment is not to be lightly
entertained and this Court could exercise its review jurisdiction only when
those grounds are made out as provided in Order XLVII Rule 1 of the
Supreme Court Rules, 2013 framed under Article 145 of the Constitution        D
of India. This Court in Sow Chandra Kante and another v. Sheikh
Habib, (1975) 1 SCC 674 speaking through Justice V.R. Krishna Iyer
on review has stated the following in para 10:
      “10. A review of a judgment is a serious step and reluctant resort
      to it is proper only where a glaring omission or patent mistake or      E
      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.”
                                                                              F
       21. As per rule, review in a criminal proceeding is permissible
only on the ground of error apparent on the face of the record. This
Court in P.N. Eswara Iyer and others v. Registrar, Supreme Court
of India,(1980) 4 SCC 680 while examining the review jurisdiction of
this Court vis a vis criminal and civil proceedings had made the following
observations in paras 34 and 35:                                              G
      “34. The rule, on its face, affords a wider set of grounds for review
      for orders in civil proceedings, but limits the ground vis-a-vis
      criminal proceedings to “errors apparent on the face of the
      record”. If at all, the concern of the law to avoid judicial error
                                                                              H
928            SUPREME COURT REPORTS                          [2018] 7 S.C.R.


A           should be heightened when life or liberty is in peril since civil
            penalties are often less traumatic. So, it is reasonable to assume
            that the framers of the rules could not have intended a restrictive
            review over criminal orders or judgments. It is likely to be the
            other way about. Supposing an accused is sentenced to death by
            the Supreme Court and the “deceased” shows up in court and the
B
            court discovers the tragic treachery of the recorded testimony. Is
            the court helpless to review and set aside the sentence of hanging?
            We think not. The power to review is in Article 137 and it is
            equally wide in all proceedings. The rule merely canalises the
            flow from the reservoir of power. The stream cannot stifle the
C           source. Moreover, the dynamics of interpretation depend on the
            demand of the context and the lexical limits of the test. Here
            “record” means any material which is already on record or may,
            with the permission of the court, be brought on record. If justice
            summons the Judges to allow a vital material in, it becomes part
            of the record; and if apparent error is there, correction becomes
D
            necessitous.
            35. The purpose is plain, the language is elastic and interpretation
            of a necessary power must naturally be expansive. The substantive
            power is derived from Article 137 and is as wide for criminal as
            for civil proceedings. Even the difference in phraseology in the
E           rule (Order 40 Rule 2) must, therefore, be read to encompass the
            same area and not to engraft an artificial divergence productive
            of anomaly. If the expression “record” is read to mean, in its
            semantic sweep, any material even later brought on record, with
            the leave of the court, it will embrace subsequent events, new
F           light and other grounds which we find in Order 47 Rule 1, CPC.
            We see no insuperable difficulty in equating the area in civil and
            criminal proceedings when review power is invoked from the same
            source.”
             22. The scope of review jurisdiction has been considered by this
G     Court in a number of cases where well settled principles have been
      reiterated time and again. It is sufficient to refer to judgment of this
      Court in Kamlesh Verma vs. Mayawati and others (2013) 8 SCC
      320, where this Court has elaborately considered the scope of review.
      In paras 17, 18, 20.1 and 20.2 following has been laid down:

H
   VINAY SHARMA v. STATE OF NCT OF DELHI                                 929
            [ASHOK BHUSHAN, J.]

“17. In a review petition, it is not open to the Court to reappreciate   A
the evidence and reach a different conclusion, even if that is
possible. Conclusion arrived at on appreciation of evidence cannot
be assailed in a review petition unless it is shown that there is an
error apparent on the face of the record or for some reason akin
thereto. This Court in Kerala SEB v. Hitech Electrothermics &
                                                                         B
Hydropower Ltd. held as under: (SCC p. 656, para 10)
 “10. … In a review petition it is not open to this Court to
 reappreciate the evidence and reach a different conclusion, even
 if that is possible. The learned counsel for the Board at best
 sought to impress us that the correspondence exchanged between
 the parties did not support the conclusion reached by this Court.       C
 We are afraid such a submission cannot be permitted to be
 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             D
 assailed in a review petition unless it is shown that there is an
 error apparent on the face of the record or for some reason akin
 thereto. It has not been contended before us that there is any
 error apparent on the face of the record. To permit the review
 petitioner to argue on a question of appreciation of evidence
 would amount to converting a review petition into an appeal in          E
 disguise.”
18. Review is not rehearing of an original matter. The power of
review cannot be confused with appellate power which enables a
superior court to correct all errors committed by a subordinate
court. A repetition of old and overruled argument is not enough to       F
reopen concluded adjudications. This Court in Jain Studios Ltd.
v. Shin Satellite Public Co. Ltd., held as under: (SCC pp. 504-
505, paras 11-12)
 “11. So far as the grievance of the applicant on merits is
 concerned, the learned counsel for the opponent is right in             G
 submitting that virtually the applicant seeks the same relief which
 had been sought at the time of arguing the main matter and had
 been negatived. Once such a prayer had been refused, no review
 petition would lie which would convert rehearing of the original
 matter. It is settled law that the power of review cannot be            H
930      SUPREME COURT REPORTS                           [2018] 7 S.C.R.


A      confused with appellate power which enables a superior court
       to correct all errors committed by a subordinate court. It is not
       rehearing of an original matter. A repetition of old and overruled
       argument is not enough to reopen concluded adjudications. The
       power of review can be exercised with extreme care, caution
       and circumspection and only in exceptional cases.
B
       12. When a prayer to appoint an arbitrator by the applicant herein
       had been made at the time when the arbitration petition was
       heard and was rejected, the same relief cannot be sought by an
       indirect method by filing a review petition. Such petition, in my
       opinion, is in the nature of ‘second innings’ which is impermissible
C      and unwarranted and cannot be granted.””
      20.1. When the review will be maintainable:
       (i) Discovery of new and important matter or evidence which,
       after the exercise of due diligence, was not within knowledge of
D      the petitioner or could not be produced by him;
       (ii) Mistake or error apparent on the face of the record;
       (iii) Any other sufficient reason.
      The words “any other sufficient reason” have been interpreted in
      Chhajju Ram v. Neki and approved by this Court in Moran Mar
E
      Basselios Catholicos v. Most Rev. Mar Poulose Athanasius to
      mean “a reason sufficient on grounds at least analogous to those
      specified in the rule”. The same principles have been reiterated in
      Union of India v. Sandur Manganese & Iron Ores Ltd.
      20.2. When the review will not be maintainable:
F
       (i) A repetition of old and overruled argument is not enough to
       reopen concluded adjudications.
       (ii) Minor mistakes of inconsequential import.
       (iii) Review proceedings cannot be equated with the original
G      hearing of the case.
       (iv) Review is not maintainable unless the material error, manifest
       on the face of the order, undermines its soundness or results in
       miscarriage of justice.
       (v) A review is by no means an appeal in disguise whereby an
H
         VINAY SHARMA v. STATE OF NCT OF DELHI                                  931
                  [ASHOK BHUSHAN, J.]

       erroneous decision is reheard and corrected but lies only for            A
       patent error.
       (vi) The mere possibility of two views on the subject cannot be
       a ground for review.
       (vii) The error apparent on the face of the record should not be
       an error which has to be fished out and searched.                        B

       (viii) The appreciation of evidence on record is fully within the
       domain of the appellate court, it cannot be permitted to be advanced
       in the review petition.
       (ix) Review is not maintainable when the same relief sought at           C
       the time of arguing the main matter had been negatived.”
       23. This very Bench speaking through one of us (Justice Ashok
Bhushan) had occasion to consider the ambit and scope of the review
Jurisdiction in a criminal proceeding in Vikram Singh alias Vicky Walia
and another vs. State of Punjab and another (2017) 8 SCC 518. In                D
para 23 of the judgement following has been stated:
      “23. In view of the above, it is clear that scope, ambit and
      parameters of review jurisdiction are well defined. Normally in a
      criminal proceeding, review applications 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 on the            F
      conviction or sentence of the accused that is not a sufficient ground
      for review. This Court shall exercise its jurisdiction to review only
      when a glaring omission or patent mistake has crept in the earlier
      decision due to judicial fallibility. There has to be an error apparent
      on the face of the record leading to miscarriage of justice to
                                                                                G
      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.”
      24. We first take up the submission of Shri A.P. Singh regarding
the abolition of death penalty in this counrty. The Constitution Bench of
                                                                                H
932             SUPREME COURT REPORTS                           [2018] 7 S.C.R.


A     this Court in Bachan Singh (supra) examined the constitutional validity
      of death penalty as provided under Section 302 of IPC. After elaborately
      considering the existence of death penalty in the Penal Code, constitutional
      provisions of Articles 19 and 21, and international covenant on civil and
      criminal rights, this court held that death penalty as contained in Penal
      Code is constitutionally valid. In paragraph 132 following was held:
B
              “132. To sum up, the question whether or not death penalty
            serves any penological purpose is a difficult, complex and
            intractable issue. It has evoked strong, divergent views. For the
            purpose of testing the constitutionality of the impugned provision
            as to death penalty in Section 302, Penal Code on the ground of
C           reasonableness in the light Of Articles 19 and 21 of the
            Constitution, it is not necessary for us to express any categorical
            opinion, one way or the other, as to which of these two antithetical
            views, held by the Abolitionists and Retentionists, is correct. It is
            sufficient to say that the very fact that persons of reason, learning
D           and light are rationally and deeply divided in their opinion on this
            issue, is a ground among others, for rejecting the petitioner’s
            argument that retention of death penalty in the impugned provision,
            is totally devoid of reason and purpose. If, notwithstanding the
            view of the Abolitionists to the contrary, a very large segment of
            people, the world over, including sociologists, legislators, jurists,
E           judges and administrators still firmly believe in the worth and
            necessity of capital punishment for the protection of society, if in
            the perspective of prevailing crime conditions in India,
            contemporary public opinion channelized through the people’s
            representatives in Parliament, has repeatedly in the last three
F           decades, rejected all attempts, including the one made recently, to
            abolish or specifically restrict the area of death penalty, if death
            penalty is still a recognised legal sanction for murder or some
            types of murder in most of the civilised countries in the world, if
            the! framers of the Indian Constitution were fully aware as we
            shall presently show they were of the existence of death penalty
G           as punishment for murder, under the Indian Penal Code, if the
            35th Report and subsequent Reports of the Law Commission
            suggesting retention of death penalty, and recommending
            revision of the Criminal Procedure Code and the insertion of the
            new Sections 235(2) and 354(3) in that Code providing for pre-
H           sentence hearing and sentencing procedure on conviction for
          VINAY SHARMA v. STATE OF NCT OF DELHI                                933
                   [ASHOK BHUSHAN, J.]

      murder and other capital offences were before the Parliament             A
      and presumably considered by it when in 1972-1973 it took up
      revision of the Code of 1898 and replaced it by the CrPC, 1973, it
      is not possible to hold that the provision of death penalty as an
      alternative punishment for murder, in Section 302, Penal Code is
      unreasonable and not in the public interest. We would, therefore,
                                                                               B
      conclude that the impugned provision in Section 302, violates
      neither the letter or the ethos of Article 19.”
      25. The submission of Mr. Singh that death penalty has been
abolished by the Parliament of U.K. in the year 1966 and several Latin
American countries and Australian States have also abolished death
penalty is no ground to efface the death penalty from the statute book of      C
our country. So far the death penalty remains in the Penal Code the
Courts cannot be held to commit any illegality in awarding death penalty
in appropriate cases.
      26. In view of the above, no ground to review judgment is made
out on the strength of the above submissions.                                  D

      27. Now, coming to the submissions made by Shri Singh attacking
the investigation and prosecution agencies, suffice it to say that
submissions and arguments are general in nature and not based on any
substantial ground so as to point out any such error in the trial so as to
furnish any ground to review any judgment.                                     E

       28. The submission made by Shri Singh attacking the evidence of
PW-1 sole eye-witness, who was also injured in the incident need not to
be considered in these review petitions. All submissions impeaching
evidence of PW-1 were made when the appeals were heard on merit.
This Court had considered all submissions attacking the evidence of            F
PW-1 in paragraphs 65-97 and 425 to 434. This Court after examining
the relevant evidences had relied on evidence of PW-1. In the review
petitions, petitioners cannot ask the Court to re-hear the appeals on merits
which submissions had already been noted, considered and rejected.
       29. The submission of Shri Singh that Bus Ex.P-1, has been falsely      G
implicated is also stated to be rejected. All these submissions were
considered by this Court while delivering the judgment in
paragraphs 98-107. This Court has rejected the submission of the
petitioners that it was a case of plantation of Bus, the Bus was found to
be involved in the incident from the evidence on record.
                                                                               H
934             SUPREME COURT REPORTS                             [2018] 7 S.C.R.


A            30. Contention of Mr. V.K. Singh is that the bus No. DL 1 PC
      0149 (Ext. P/1) has been falsely implicated and the CCTV Footage
      cannot be relied upon and this aspect is not properly considered by this
      Court. The exact points now raised by Mr. Singh in para (M) of the
      review petition were considered by this Court in paras (98) to (113) and
      paras (435) to (439). In para (101), this Court has referred to the evidence
B
      of PW-76 Gautam Roy, HoD, Computer Cell, Forensic Division who
      has examined the CCTV Footage received by him in a Pen Drive in two
      sealed parcels. In paras (98) to (113), this Court has referred to the
      evidence regarding retrieval of CCTV Footage in the presence of PW-
      67 Pramod Kumar Jha, owner of the hotel at Delhi Airport and the
C     photographs taken thereon to prove the involvement of the bus No. DL
      1 PC 0149 (Ext. P/1).
             31. To show the involvement of the bus No. DL 1 PC 0149 (Ext.
      P/1), in paras (108) to (113), this Court has also elaborately considered
      the evidence of PW-81, Dinesh Yadav, owner of the bus and PW-16
D     Rajeev Jakhmola, Manager (Admn.) of Birla Vidya Niketan School,
      Pushp Vihar who have stated that the bus No. DL 1 PC 0149 (Ext. P/1)
      was routinely driven by Ram Singh (deceased accused) and he was the
      driver of the bus.
             32. Involvement of the bus No. DL 1 PC 0149 (Ext. P/1) was
E     also held to be substantiated by matching of DNA profile of the material
      objects lifted from the bus No. DL 1 PC 0149 (Ext. P/1) which were
      found consistent with that of the victim and the complainant. In paras
      (431) and (438), the same has been well-considered. Matching of DNA
      profile developed from the articles seized from the bus like ‘hair’
      recovered from the third left row of the bus and the blood-stained seat
F     cover of the bus and the bunch of hair recovered from the floor of the
      bus with the DNA profile of the victim was held to be unimpeachable
      evidence establishing the involvement of the bus in the commission of
      the offence. The oral and scientific evidence has been elaborately
      considered by this Court in upholding the findings of the High Court as to
G     the involvement of the bus. The petitioner/accused cannot reagitate the
      same point again.
             33. Mr. Singh has inter alia made various submissions regarding
      reliability of the three dying declarations:- (i) failure to disclose the names
      of any of the accused in the first dying declaration (Ext.PW-49/A) and
H
          VINAY SHARMA v. STATE OF NCT OF DELHI                                 935
                   [ASHOK BHUSHAN, J.]

therefore, the second and third dying declarations are tutored; (ii) the        A
three dying declarations cannot be relied upon due to variations and
improvements; and (iii) sudden appearance of the name of ‘Vipin’ (in
the third dying declaration) makes it doubtful and no explanation is offered.
       34. The victim made three dying declarations:- (i) statement
recorded by PW-49 Dr. Rashmi Ahuja immediately after the victim was             B
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            C
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            D
parts, description of the bus, robbery committed and throwing of both
the victims out of the moving bus in naked condition. On 25.12.2012 at
1:00 p.m., PW-30 Pawan Kumar, Metropolitan Magistrate recorded the
statement by putting multiple choice questions to the victim and by getting
answers through gestures and writing. While making the third
declaration, the victim also tried to reveal the names of the accused by        E
writing in her own handwriting viz. “Ram Singh, Mukesh, Vinay, Akshay,
Vipin, Raju”.
       35. All the contentions raised regarding the three dying declarations
have been considered in detail in paras (148) to (192) and paras (395) to
(417). Considering all the three dying declarations, in the light of well-      F
settled principles, this Court held that all the three dying declarations are
true, voluntary and consistent. Insofar as third dying declaration, this
Court, in paras (408) to (412) held that the dying declaration made through
signs, gestures or by nods are admissible as evidence and that proper
care was taken by PW-30 Pawan Kumar, Metropolitan Magistrate and                G
the third dying declaration recorded by in response to the multiple-choice
questions by signs, gestures made by the victim are admissible as
evidence. In the third dying declaration, the victim also wrote the names
of the accused persons “Ram Singh, Mukesh, Vinay, Akshay, Vipin,
Raju”. So far as the name of accused Vipin written by the prosecutrix
                                                                                H
936            SUPREME COURT REPORTS                           [2018] 7 S.C.R.


A     in the third dying declaration has been elaborately considered by this
      Court in paras (150) and (188) of the judgment.
             36. Non-mention of use of iron rod in MLC, Ex.PW-49/A has
      also been noticed by this Court in its judgment and this Court has given
      reasons for not finding any fault in the MLC, Ex.PW-49/A. The
B     submissions of Shri Singh that on 21.12.2012 the prosecutrix was not fit
      to record her dying declaration has also been rejected. With regard to
      the morphine injection which was given to prosecutrix, the statement of
      Doctor, the time of injection and the effect of morphine was categorically
      noted and considered and no fault was found with the second dying
      declaration. The submission having been noted, considered and dealt
C     with by this Court in the judgment, the petitioners cannot be allowed to
      reagitate the same issue again and again. Non-mention of use of iron
      rod in the statement of PW-1 has also been noted in detail by this Court.
      That in second dying declaration on 21.12.2012 the prosecutrix has
      mentioned the use of iron rod by which she was injured which is also
D     noted by the Court. This Court noted the injuries and medical evidence
      and has concluded that accused had used iron rod. Those submissions
      having been raised, dealt with by this Court in the main judgment, the
      petitioners cannot be allowed to raise the same again.
             37. With regard to reports regarding DNA, this Court elaborately
E     considered the whole concept of DNA and reports received. The attack
      of the petitioners on the ground of blood transfusion and other submissions
      on DNA report having been considered and has rightly been relied on by
      this Court, the submissions pertaining to DNA are nothing but repitition
      of submissions which have been noted and rejected by this Court in the
      main judgment.
F
             38. Contention of Mr. V.K. Singh is that accused Vinay Sharma
      raised the plea of alibi that he had attended a musical programme
      arranged by SCC Unit of the Church in his locality and he was there
      from 08:15 pm to 11.00/12.00 pm on 16.12.2012 and he has produced
      the video clipping to prove his presence there in the programme and the
G     same has not been considered by this Court.
             39. The plea of alibi put forth by accused Vinay Sharma that he
      was present in the musical programme organised by the SCC Unit of
      the Church in the DDA Park in his locality has been elaborately considered
      in paras (258) to (269). In para (267) of the judgment, this Court referred
H
          VINAY SHARMA v. STATE OF NCT OF DELHI                                 937
                   [ASHOK BHUSHAN, J.]

to the evidence of PW-83 Shri Angad Singh, Deputy Director                      A
(Horticulture), DDA who has deposed that no permission was granted
by any authority to organise any function in the evening of 16.12.2012 in
the DDA District Park, Hauz Khas, New Delhi. This Court has also
referred to the evidence of PW-84 Father George Manimala of St.
Thomas Church and PW-85 Brother R.P. Samuel, Secretary, Ebenezer
                                                                                B
Assembly Church who have deposed that their church(es) never
organised any musical programme/event in the DDA District Park, Hauz
Khas in the evening of Sunday i.e. on 16.12.2012. While considering
the plea of alibi raised by Vinay Sharma in paras (258) to (269) referring
to the evidence of DW-5 Smt. Chamba Devi, mother of accused Vinay
Sharma, DW-7 Kishore Kumar Bhat and DW-9 Manu Sharma, this                      C
Court held that the plea of alibi raised by accused Vinay Sharma was
not acceptable. Petitioner/accused Vinay Sharma now cannot reagitate
the same point.
      40. Plea of alibi raised by accused Vinay Sharma was also
considered in the light of the footprints lifted from the bus (Ext.P/1).        D
PW-46 A.D. Shah, Senior Scientific Officer (Fingerprints), CFSL, CBI
examined the chance prints lifted from the bus marked as “Q.1” and
“Q.4” was found identical with the left palmprint and right thumb
impression of accused Vinay Sharma. After referring to the evidence
of PW-46 and the expert report (Ext. PW-46/D), this Court held that the
evidence clearly establishes the presence of accused Vinay Sharma in            E
the bus. There is no merit in the contention that the plea of alibi was not
considered by this Court.
      41. Likewise, video clippings relied upon by accused Vinay Sharma
(Ext.DW-10/1) was considered in para (263) of the judgment wherein
this Court held that accused Vinay Sharma and accused Pawan Gupta               F
were not in the DDA District Park at 08:16 pm on 16.12.2012.
       42. Now, coming to the submission regarding juvenility of petitioner,
Vinay Sharma. The issue of juvenile was considered by the trial court
and trial court on the basis of the materials on record held that petitioner
No.1 was not a juvenile. Learned counsel for the respondent has referred        G
to the order of the trial court dated 10.01.2013 which fully supports his
submission. The trial court on being fully satisfied that petitioner is not a
juvenile has rightly rejected the application for ossification test submitted
by petitioner No.1. There is no substance in this submission and no ground
is made out to review the judgment.                                             H
938                SUPREME COURT REPORTS                       [2018] 7 S.C.R.


A            43. Now, coming to the submission of the learned counsel for
      petitioner No.2 that he was juvenile at the time of occurrence. The said
      issue was also considered by the trial court and rejected. The trial court
      on the basis of the material placed before it had rightly concluded that
      petitioner No.2 was not a juvenile. Learned counsel for the respondent
      has rightly referred to the proceedings of trial court dated 10.09.2013. In
B
      this respect this submission also does not furnish any ground for review
      of the judgment.
            44. Before closing we need to reiterate that criminal appeals filed
      by the appellants (petitioners herein) against the judgment of the High
      Court were heard by this Court giving them sufficient time for raising all
C     possible submissions. The hearing in criminal appeals continued about
      38 days. The learned counsel for the appellants/petitioners had made
      elaborate submissions which were all duly considered by us in our main
      judgment. In these review petitions no ground has been made out which
      may furnish any ground to review the judgment. We, thus, find no merit
D     in these review petitions and consequently, the review petitions are
      dismissed.


      Ankit Gyan                                          Review Petitions dismissed.

E




F




G




H