* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ DEATH SENTENCE REFERENCE NO.6/2013

STATE THROUGH REFERENCE ..... Petitioner

Through: Mr. Dayan Krishnan, Special Public
Prosecutor with Mr. Madhav
Khurana, Ms. Swati Goswami and
Ms. Manvi Priya, Advocates.
versus
RAM SINGH & ORS. ..... Respondents
Through: Mr. A.P. Singh, Advocate for Akshay
Kumar and Vinay Sharma.
Mr. M.L. Sharma, Advocate for
Mukesh and Pawan Kumar Gupta.

+ CRL. APP. NO.1398/2013

PAWAN KUMAR GUPTA ..... Appellant

Through: Mr. M.L. Sharma, Advocate.
versus
STATE ..... Respondent
Through: Mr. Dayan Krishnan, Special Public
Prosecutor with Mr. Madhav
Khurana, Ms. Swati Goswami and
Ms. Manvi Priya, Advocates.

+ CRL. APP. NO.1399/2013

MUKESH ..... Appellant

Through: Mr. M.L. Sharma, Advocate.
versus
STATE ..... Respondent
Through: Mr. Dayan Krishnan, Special Public
Prosecutor with Mr. Madhav
Khurana, Ms. Swati Goswami and
Ms. Manvi Priya, Advocates.

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+ CRL. APP. NO.1414/2013

VINAY SHARMA AND ANR. ..... Appellants

Through: Mr. A.P. Singh, Advocate
versus
STATE ..... Respondent
Through: Mr. Dayan Krishnan, Special Public
Prosecutor with Mr. Madhav
Khurana, Ms. Swati Goswami and
Ms. Manvi Priya, Advocates.

% Date of Decision : March 13, 2014

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI

JUDGMENT

: REVA KHETRAPAL, J.

1. In an epoch when sexual assaults and ravishments are the order

of day, when young men (and even old ones) revel in public
declaration of their promiscuous pursuits, when not only the streets
but schools, colleges and work-places are approached by the
vulnerable with trepidation and even the judge has to be sensitized to
gender issues, the rape of a young girl hardly out of her teens, would
have gone unnoticed as scores of other violations of infants, girls and
women, but for fact that a public outraged at the manner in which the
entrails of the ravished were culled out of her body, leaving her to die,
stripped of all human dignity, completely unattired, in the darkness of
a wintry night, on a thoroughfare, took to the streets in their quest for

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justice. This had the trigger effect of impelling the investigative
agencies into using such tools of investigation as had lain in their
tool-kit hitherto before practically unused, to nail the culprits. Did
they indeed manage to foist the guilt on the guilty is the subject
matter of the present death reference and appeals. But before delving
any further into this arena, it is deemed appropriate to delineate the
stark facts, as nearly as possible, in the order of their occurrence.
2. The victims are the complainant/eye-witness (PW-1) and the
prosecutrix who has not lived to recount her story, though has
chronicled the same in the form of dying declarations. The offenders
before the Court are the four convicts, namely Mukesh, Akshay @
Thakur, Pawan @ Kalu, and Vinay. Besides them is the fifth culprit,
Ram Singh, who allegedly snapped his own life chord, possibly on
account of the rigors and mortifications of trial and against whom the
proceedings have consequently abated. Lastly, there is a Juvenile in
Conflict with Law (JCL) whose case was dealt with before the
appropriate forum and need not detain us. Apart from these key
players, there is another player of some import who has thrown light
on the incident, he having suffered a robbery on the same ill-fated
bus on which the alleged offences were committed, at the hands of
the very same convicts, just a little before the prosecutrix and the
complainant ill-advisedly boarded the same. He is prosecution
witness Ram Adhar who after being divested of his meager
possessions was unceremoniously thrown out of the bus, the inmates
whereof apparently moved on in pursuit of fresh prey.

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3. The warp and weft of the case of prosecution is as under:-
(i) On 16.12.2012 accused Ram Singh, Mukesh, Akshay @ Thakur,
Pawan @ Kalu, Vinay and the JCL had dinner at the jhuggi of
accused Ram Singh. Thereafter, the accused persons conspired
to take bus bearing No. DL-1CP-0149, which was being
habitually driven by Ram Singh as an employee of Yadav
Travels and which was in his custody on the date of the incident,
and pick up passengers who they would rob and also pick up a
woman passenger to satiate their sexual appetite.
(ii) Pursuant to the conspiracy, the accused persons picked up Ram
Adhar on 16.12.2012 at about 8:30 PM, robbed him of all his
valuables and beat him before throwing him out of the bus.
(iii) The complainant and the prosecutrix had seen a movie at PVR
Select City Mall, Saket and then taken an auto-rickshaw till
Munirka Bus Stand. At Munirka Bus Stand, they boarded the
bus in which the crime took place. The accused persons took Rs.
10/- each as fare from both the victims.
(iv) A few minutes after boarding the bus, they switched off the
lights of the bus and three of the accused persons, namely, Ram
Singh, Akshay Kumar and JCL started misbehaving with the
complainant asking him why he was with the girl : Tu itni raat
ko ladki lekar kahan ghoom raha hai. Thereupon, an
altercation took place and the three of the accused persons then
started to slap and beat up the complainant, who retaliated.
Thereafter, the two other accused, namely, Vinay and Pawan

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 joined in hitting him with two iron rods and tore off all his
clothes.
(v) The accused then took away all the belongings of both the
victims viz. mobile phones, purse, credit card, debit card, etc.
(vi) Accused Ram Singh, Akshay @Thakur and the JCL then took
the girl to the rear of the bus, beat her up and raped her one by
one. During this time, accused Pawan @ Kalu and Vinay were
holding the complainant and had pinned him down, and Mukesh
was driving the bus.
(vii) Thereafter, accused Ram Singh, Akshay and the JCL held the
complainant while Pawan @ Kalu and Vinay raped the
prosecutrix.
(viii) Finally, accused Akshay @ Thakur took over the bus for a
while and during this time accused Mukesh who was driving the
bus came and raped the girl.
(ix) Throughout this period, they continued to assault the
complainant with iron rods.
(x) So far as the prosecutrix is concerned, the accused persons not
only raped her but also bit her all over her body and hit her
repeatedly. The accused persons then inserted rods and hands in
her rectal and vaginal region.
(xi) The accused persons with an intention to kill the prosecutrix and
to ensure that their identities remain concealed forever,
repeatedly inserted the iron rods and their hands into her
vagina as well as rectum pulling out the internal organs. The
nature of injuries, to say the least, was horrific, and without

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 doubt would have caused her death in the ordinary course of
nature.
(xii) The intention to kill the victims is further clear from the fact that
the crime committed, the accused persons attempted to throw the
victims from the back door of the bus but finding it to be
jammed, threw the victims from the front door of the moving
bus, and thereafter tried to run them over. The prosecutrix was
saved from the wheels of the bus on account of the fact that the
complainant was able to pull her away in time.
(xiii)The accused persons in order to ensure that they are not caught
and to further ensure that they leave no trace of the brutal
incident, systematically attempted to destroy all the evidence of
the incident. They first cleaned the bus with the clothes of both
the victims and then washed the bus with water and thereafter
burnt the clothes of the victims.
(xiv) After destroying the evidence in the aforesaid manner, the
accused persons divided the loot amongst themselves in the
following manner:
a. Accused Mukesh kept one Samsung mobile with him.
b. Accused Pawan @ Kalu kept one wrist watch & Rs. 1000/-.
c. Accused Vinay kept a Nokia mobile phone of the
prosecutrix & a pair of Hush Puppy shoes taken from the
complainant.
d. Accused Akshay kept two rings, i.e. one silver & one gold
taken from the complainant alongwith two metro cards.

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 e. The JCL kept a Nokia mobile phone, Rs. 1,100/- & one
ATM card.
f. Accused Ram Singh (since deceased) kept one debit card
with himself.
(xv) The intention of the accused persons was not only to commit
gang rape on the prosecutrix, but to also rob the complainant
and the prosecutrix and then to kill them and destroy all
incriminating evidence so that they could not be tracked down.
4. The prosecution, in order to substantiate its case, marshalled in
the witness-box 82 witnesses. Several documents and material objects
were exhibited in the course of the trial, which shall be adverted to at
the relevant stages.
5. For the preent, we straightway embark upon the exercise of
minutely examining the case of the prosecution to ascertain its
authenticity and with a view to ensure that truth prevails.
Setting into motion of the Criminal Law Machinery
6. The criminal law machinery was set in motion by one Raj
Kumar (PW-72) working with EGIS Infra Management India Pvt.
Ltd., a company engaged in patrolling NH-8. On the ill fated night,
Raj Kumar was on patrolling duty in the area from Vasant Vihar to
Kherki Daula at NH-8. At about 10:02 PM, while patrolling on his
motor cycle, along with Surender Singh, he heard shrieks of Bachao
Bachao from the left side of the road when he was proceeding from
the side of Mahipalpur to Vasant Vihar. The sound was coming from
the service road near milestone No. 17780, opposite Hotel 37. On
stopping the motor cycle, he saw on the left side a boy in naked and

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injured condition, having blood all around, sitting near the bushes
and also a girl in naked and injured condition lying nearby. She had
some clothes around her neck. At around 10:05 PM, he informed
his Control Room through his walkie-talkie about both the victims
and requested his Control Room to inform the PCR on 100 number.
He then gave his shirt to the boy to wear. Around the same time, a
Bolero belonging to the said patrolling company also arrived at the
site being driven by one Jeet Singh, who also informed the EGIS
Control Room on his walkie-talkie. The said Jeet Singh put his
sweater on the girl. The PCR van arrived at the spot after 10-15
minutes and the PCR officials brought a bed sheet and after tearing it
into two pieces, gave the same to each of the victims to cover
themselves.
7. PW-72 Raj Kumar having set the criminal law machinery in
motion, the momentum was maintained by Ram Pal Singh (PW-70),
another employee of EGIS Infra Management, who was on duty at the
Control Room situated at KM-24, Toll Plaza. In his testimony, Ram
Pal Singh (PW-70) deposed that at about 10:07 PM, he received an
information through walkie-talkie from their motor bike patrolling
staff No.2 comprising of Raj Kumar Singh (PW-72) and Surender
Singh that one boy and one girl were lying without clothes on the
service road coming from the side of Gurgaon towards Delhi near
Chainage No.17780 and that he should call at number 100. He
conveyed this information to number 100 through the Control Room
No.9717890175 and also instructed the EGIS staff patrolling on
Bolero, i.e., Jeet Singh to reach at the above stated place. After about

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10 minutes, Jeet Singh informed him that he had reached the spot and
this information was also conveyed by him (PW-70) at around 10:20
PM at number 100.
8. The testimony of Raj Kumar (PW-72) is thus corroborated by
the evidence of Ram Pal Singh (PW-70). It may be noted that there
has been no serious challenge to the testimony of Ram Pal Singh
(PW-70). Insofar as the testimony, of Raj Kumar (PW-72) is
concerned, he was subjected to elaborate cross-examination, but
notwithstanding, he stood by his testimony. A look now at the rescue
operations.
Rescue of the victims
9. Consequent to the information received from the EGIS Control
Room, the PCR emergency vehicles reached the spot. The
prosecution has in this regard marshalled the evidence of Head
Constable Ram Chander (PW-73). The relevant portion of the
testimony of Head Constable Ram Chander (PW-73) is extracted
hereunder:-
At about 10.24PM, I received an information from control
room of PCR that near the foot of Mahipal Pur flyover towards
Dhaula Kuan opposite GMR gate, a boy and a girl in a naked
condition are sitting and the crowd has gathered. Immediately
within 5/6 minutes we reached the spot from Sanjay T-
Point. When we reached at the spot, I found the boy was
sitting and was having a shirt on his person and that the girl was
having some clothes around her neck and had a sweater on her
body and she was lying. Both the boy and girl were bleeding
from different parts of the body. I immediately dispersed the
crowd to some distance and brought a bottle of water and a bed
sheet from hotel 37. I then tore the bed sheet into two parts
and gave one part to the boy and gave another part of the
bed sheet to the girl for covering themselves. I gave some
water to the boy and the girl and then put both of them in PCR
van and rushed to S.J. Hospital. I reached the hospital at about
11PM. I dropped the boy in the casualty and since the girl had

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 more injuries so I was asked to take her to the gynae
section/building and got them admitted there. They told their
names on the way to the hospital. On the way to the
hospital, they also told me that they boarded a bus from
Munirka and after some time, the occupants started
misbehaving with them and they had beaten the boy and
took the girl on the rear side of the bus and committed rape
with her and that thereafter they took off the clothes of the
boy and girl and threw them naked on the road.

10. In the course of the cross-examination of PW-73 Head

Constable Ram Chander, the witness was confronted with his
statement in terms of Section 161 Cr.P.C. to bring out certain
contradictions. A perusal of the cross-examination, however, shows
that the contradictions are of a minor nature, in that they are in respect
of who gave the police officer the bed sheet, the size of the bed sheet,
etc., and such contradictions arguably are to be ignored. But more
about this at a later stage when it is proposed to dwell upon the legal
position relating to contradictions, discrepancies, omissions,
embellishments and the like. Suffice it to note at this stage that in the
instant case the I.O. has not been asked any questions by the defence
as to whether she had put questions to Ram Chander (PW-73) about
who gave him the bed sheet, the size of the bed sheet and how long he
took to reach the spot.
11. Of far greater significance is to note that the evidence of H.C.
Ram Chander (PW-73) is heavily relied upon by the prosecution as
res gestae under Sections 6 to 9 of the Indian Evidence Act, 1872 as
the witness has, in his capacity of PCR Head Constable, deposed
about the victims description of the incident. The statements made
by the victims to the witness are thus sought to be pressed into service
as spontaneous and immediate and also contemporaneous with the

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acts which constitute the offence. The prosecution also claims that the
res gestae evidence of Ram Chander (PW-73) clearly corroborates the
version of the complainant PW-1 and the dying declarations of the
prosecutrix, but this aspect too needs examination and it is proposed
to examine it later on. Indisputably, however, Ram Chander (PW-73)
has given a clear and graphic description of rescue and has also
corroborated the time in respect of the rescue of the victims and their
admission to hospital. The defence has not been able to shake the
evidence of this witness in cross-examination.
Recording of the first statement of the complainant, PW-1 which culminated
in the registration of the First Information Report
12. Sub-Inspector Subhash Chand, P.S. Vasant Vihar (PW-74)
after ascertaining that the complainant was fit for recording his
statement proceeded to record the statement of the complainant/eye
witness (PW-1) at Safdarjung Hospital. It is proposed to advert to the
first statement of the complainant Ex.PW-1/A along with his
subsequent statements Ex.PW-80/D-1, Ex.PW-80/D-3 and Ex.PW-
1/B at length at the relevant juncture. For the present purposes, it
need only be stated that the first statement of the accused Ex.PW-1/A
recorded by S.I. Subhash Chand (PW-74) was treated as the
rukka/tehreer, on the basis of which the First Information Report was
registered. The said rukka/tehreer (Ex.PW-1/A) was sent by S.I.
Subhash (PW-74) through Constable Kirpal Singh (PW-65). On
receipt of the said rukka/tehreer, DD No.11-A, which is Ex. PW-
57/C, was recorded by A.S.I. Kapil Singh (PW-57) and thereafter an
FIR was registered, being FIR No.413/2012 at Police Station Vasant

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Vihar at 5:40 AM. The said FIR is exhibited as Ex.PW-57/D. The
FIR and the original rukka/tehreer, with the endorsement of the Duty
Officer Kapil Singh (PW-57) as Ex.PW-57/E, was handed over to the
I.O. S.I. Pratibha Sharma (PW-80) for further investigation in the
case. The SHO Inspector Anil Sharma (PW-78) corroborates this and
states that on 17.12.2012 at about 5:40 AM, he entrusted the
investigation to W/S.I. Pratibha (PW-80), as reflected in DD Entry
No.11-A (Ex.PW-57/C). On receipt of the same, S.I. Pratibha (PW-
80) proceeded to the Hospital along with Constable Kirpal Singh
(PW-65) for investigation.
FIRST SEGMENT OF INVESTIGATION
13. Adverting to the initial stage of investigation, it is deemed
appropriate to refer first to the testimony of PW-74 S.I. Subhash
Chand, the said witness being a witness of some import in that it was
he who recorded the first statement of the complainant.
14. PW-74 S.I. Subhash Chand stated in Court that on the night
intervening 16 th/17th December, 2012, at about 1.15 am, he
received DD No.6-A (Ex.PW-57/A) at Munirka where he was
attending some other call. He proceeded from Munirka to
Mahipalpur on receipt of the said DD and as he was entering the
main road, he received yet another DD, being DD No.7-A
(Ex.PW-57/B), regarding admission of the two injured persons.
On receipt of DD No.7-A, instead of moving towards Mahipalpur,
he along with Constable Kirpal (PW-65) proceeded towards S.J.
Hospital where he met PW-59 W/Inspector Raj Kumari, A.T.O.,
PS Vasant Kunj and PW-62 SI Mahesh Bhargava, who had

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collected the MLCs of the prosecutrix and the complainant
respectively. The prosecutrix was declared unfit for statement
by the doctor as she was in the ICU and he was told by PW-59
W/Inspector Raj Kumari that she was not in a position to
speak. However, the complainant was declared fit for statement.
He (PW-74) accordingly proceeded to record the statement of the
complainant (Ex.PW-1/A), which bears his signatures at Point
B and his endorsement (Ex.PW-74/A) at Point C. He then
gave the rukka to Constable Kirpal (PW-65) and sent him at
5:10 AM to the Police Station for registration of FIR.
Thereafter, at about 6:30 AM/6:45 AM, PW-59 W/SI Pratibha
(IO) and PW-65 Constable Kirpal came to S.J. Hospital, where
he handed over a white colour bed sheet with which the
complainant had covered himself to PW-80 SI Pratibha, after
handing over a pant and a shirt to the complainant for being
worn. The white bed sheet was blood stained. It was converted
into a pulanda and sealed and seized vide seizure memo Ex.PW-
74/B, which bears his signature at Point B. The I.O. SI
Pratibha then collected the exhibits of the prosecutrix which
were sealed at the hospital vide memo Ex.PW-59/A and also her
MLC from W/Inspector Raj Kumari (PW-59).
15. The testimony of PW-74 SI Subhash Chand insofar as it
relates to the registration of the FIR is corroborated by PW-65
Constable Kirpal Singh.
16. PW-78 Inspector Anil Sharma, SHO of Police Station
Vasant Vihar further corroborated the fact that on 17.12.12 at

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about 5:40 AM, he received information about the registration
of the case from the Duty Officer (PW-57, ASI Kapil Singh).
PW-78, Inspector Anil Sharma testified that the investigation
was entrusted to W/SI Pratibha Sharma (PW-80), who
investigated the case from 5:40 AM on 17.12.2012 till
30.12.2012, when the investigation was taken over by him under
the orders of his senior officers.
17. It is proposed now to deal with the first statement made by the
complainant/eye-witness to SI Subhash Chand (PW-74) at 3:45 AM
on 17.12.2012. The complainant, Awninder Pratap (PW1), who
happened to be an engineer and was escorting the prosecutrix on the
ill-fated night and who could not save her despite his valiance,
narrated to the police the story of her woe as follows:
I reside at the aforesaid address and work as Sr.Engineer
Network at HCL Company, Sector 11, Noida. And I am
preparing for the IES, Jyoti named girl is my friend who had
come to me on 16.12.2012. We reached Munirka at about 9.00
p.m by Auto (TSR) after watching a movie at Select City Mall
Saket PVR when the show got over at 8.30 p.m. Just then a
white coloured chartered bus came from the IIT side and
stopped at Munirka bus stand and the conductor of the bus
started shouting Palam Mor-Dwarka-Dwarka. I and Jyoti
boarded the bus from the front gate. Four boys were sitting in
the cabin along with the driver and two boys were sitting at the
back of the cabin, one on the right side and another one was on
the left side. We sat on the second seat at the left side behind
them. The bus had started. No other passenger had boarded
from there. The bus conductor had collected twenty rupees from
me as the fare of both of us. The bus climbed the flyover of the
Malai Mandir and ran past Vasant Village and started climbing
the flyover of the Airport. At the same time, three boys came
from the cabin and asked me in a foul language, Where are
you going with the girl at night and they started swearing at me.
One of those boys slapped me and I too slapped him. Then all
the three started fighting with me. I too beat up all three of them.
Just then other two boys also came there. And all of them
started beating and hitting me jointly. I tried to save myself

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 between the seats of the bus that those boys pulled out an iron
rod and started hitting me from which I got injured in my head,
hand and legs. When Jyoti tried to save me, two boys pulled her
to the rear side of the bus and those boys snatched from me
two of my mobiles bearing Nos.9540034561 Samsung and
7827917720 Samsung Galaxy S-II and my purse containing
therein 1000/- Rs. ICICI Debit Card, City Bank Credit Card and
they also took out from my fingers one silver ring and another
golden ring and they also snatched all my clothes-khaki
coloured blazer, grey coloured sweater, black coloured jeans,
black coloured Hush puppies shoes. They thrashed me so
much that I fell unconscious. They also tore off all the clothes of
Jyoti and took turns to rape her in the moving bus at the rear
side of the bus. Jyoti had been shouting and crying very loudly.
Whenever I tried to go towards her, they started beating me and
held me at the front portion of the bus. Those boys asked the
bus driver to drive fast and the driver kept driving the bus fast
on the road. And those boys started throwing me from the rear
gate of the bus. But the rear gate of the bus could not open.
Later on they threw both of us from the moving bus at the road
side of NH-8, Mahipal Pur and moved away. All of those boys
were medium built in the age of 25-30 years. One boy with flat
nose was the youngest of all those boys and had been wearing
pants and shirt. One boy had been wearing red colored
baniyan. They had also snatched away Jyotis mobile bearing
No.9818358144. I had been waving my hand to seek help from
the vehicles passing by the road. Just then a police vehicle
reached there and brought from somewhere two white bed
sheets and gave us because those boys had thrown us stark
naked and in semi-conscious condition. The PCR van had
brought me and Jyoti to Safdarjung Hospital. There were many
injuries and biting marks on the body of Jyoti. I can identify all
those boys, the driver and the bus on confrontation. Strict legal
action may be initiated against all those.

18. On the same day i.e on 17-12-2012, at about 7.30 a.m, the
Complainant (PW-1) made another statement before the Investigating
Officer, SI Pratibha Sharma (Ex.PW 80/D-1), which for the
convenience of reference may be referred to as his first
supplementary statement, in which he described in vivid detail the
white coloured chartered bus in which the prosecutrix was destined to
take her ill-fated ride with him. In his said statement, he stated that
the bus had a blue and yellow colour line in the middle on the left side

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(conductors side). When they boarded the bus, he found that the seats
were of red coloured cloth and the curtains were yellow in colour.
There was a three seats row on the drivers side and a two seats row
on the conductors side in the bus. The door of the bus was next to
the front wheel and there was also a cabin in front of the bus. He
(PW-1) could identify the persons who had committed this crime with
him and his friend and could show the place where the incident took
place by accompanying the police.
19. At around 12 noon on the same day, i.e., on 17.12.2012, the
complainant (PW-1) made another statement to the I.O., which, for
the sake of convenience, may be referred to as his second
supplementary statement, and which is exhibited as Ex.PW 80/D-3.
The translated version of the said document reads as under:-
I corroborate my previous statement and further state
that I reached Munirka with you from S.J. Hospital. On
my pointing out, you (police) prepared the site plan of the
aforesaid place i.e. Munirka Bus Stand. Thereafter, I
reached near the Mahipalpur flyover with you where those
persons had thrown me and my friend out after
committing the crime. On my pointing out, you prepared
the site plan after inspecting the area near Mahipalpur
flyover. The Crime Team also reached there and initiated
the proceedings. You have taken some blood smeared
grass and leaves into possession. There were some
hotels and guest houses on the other side of the road
near that place. You enquired their staff. Some hotels
were equipped with CCTV cameras covering (footage of)
the road. The CCTV footage of one of those, hotel Airport
(?) was shown to me. Seeing the CCTV footage and
identifying the white colored bus on which the word
"Yadav" was printed in the Middle of the bus on the
conductor side and which was not having any wheel cover
on the front left side but having a white color wheel cover
on the rear wheel of the bus, I disclosed that it was the
same kind of the bus from which the accused had thrown
me and my friend out with the intention of killing us after
committing the crime and had fled from there taking the

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 bus along. During the crime many injuries had been
caused to me on my head, face, eyes, knees and on my
body. As soon as I entered the bus, I had seen a dark
complexion person, whom his companions were calling as
'Ram Singh'. At that time, three other boys were sitting in
the cabin other than the driver and outside the cabin, one
boy was sitting on the seat for two persons and another
one boy was sitting on the seat for three persons. At that
time, I thought those boys who were sitting outside (the
cabin) were passengers. Those three boys were
addressing themselves with the names of Raju, Pawan
and Vinay when they were talking with each other. The
name of the person, who was driving the bus, was
Mukesh or Ramesh. The boys who had taken the
Prosecutrix towards the rear side of the bus, were being
addressed with the names of Ram Singh and Thakur by
the other boys. They were committing rape with the
Prosecutrix by going towards rear side one-by-one. After
enquiry you have recorded my statement while sitting in
Airport Hotel. I have heard the statement and the same is
correct.

20. Apart from the aforesaid statements made by the complainant,

the complainant also gave his statement under Section 164 Cr.P.C. to
the Metropolitan Magistrate, PW-69 Shri Prashant Sharma. The
said statement is exhibited as Ex.PW-1/B and bears the certificate of
the Metropolitan Magistrate regarding its correctness, which is
Ex.PW-69/B. The application for recording of the said statement is
Ex.PW-69/A and the record of questions put to the complainant by
the concerned M.M. to satisfy himself as to the voluntariness of the
said statement is Ex.PW-69/D. As per the deposition of PW-69 Shri
Prashant Sharma, learned M.M., he recorded the statement of the
complainant verbatim. The English translation of the said statement
of the complainant (Ex.PW-1/B) recorded on 19.12.2012 at around
3:30 PM reads as under:-

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 Statement of Sh. Awninder Pratap Pandey under
Section 164 Cr.P.C
I and my friend (Prosecutrix) had come to Mall Select City Walk
located at Saket on 16.12.2012 (Sunday). We had come
there to watch the movie, "Life of Pi. The timing of the movie
was 6:40 p.m. We had come out at 8:30 PM after watching the
movie and had reached Munirka Bus Stand by a three wheeler.
As soon as we reached there, we saw a white colored bus
standing there. We had to go to Dwarka and a person from
inside the bus had been calling the passengers of Palam Mor
and those of Dwarka. "Yadav" was inscribed on the bus and
there were also green and yellow colored stripes on the bus.
That was a chartered bus. We had boarded the bus from
Munirka bus stand. I had seen in the bus that the seats were
red colored and its curtains were yellow colored. Just entering
the bus, I had seen a black colored person whom his friends
sitting in the bus itself were calling "Mukesh- Mukesh". We
sat on the two seated seat after entering the bus. I had
seen that at that time 3 boys were sitting in the cabin
besides the driver and outside the cabin one boy was
sitting on a two seated seat and another one was sitting
on a three seated seat. I had thought at that time that the
two boys who were sitting outside the cabin were
passengers. I had stood up and had asked the boy who
was calling (the passengers) what was the fare of
Dwarka, Sector-1 and he had taken Rs.10/- for each of us.
He had informed that the fare of one passenger was ten
rupees. After the fare being collected, the driver started the
bus. Then the bus crossed the flyover of Malai Mandir and
ran past Vasant Village. When the bus started climbing the
flyover of the Airport, the three boys came from the cabin
and reaching to us said, "Where are you roaming
around with the girl at such late
night?" Then they started swearing at me and (the
prosecutrix). Then all the three persons started beating
me. I had also beaten them during the fight. I and (the
prosecutrix) had been shouting at that time in order to
save ourselves. Then the boys who had been sitting
outside the cabin also came out of the cabin and
started beating me. They had hit me with the ro d. They
had hit me with the rod even while I was stark naked after
they had stripped me completely. They had snatched all our
articles. In the- meanwhile two of the boys had dragged (the
prosecutrix) to the rear seat of the bus and had taken turns to
gang rape her. Then the two boys who had gang raped (the
prosecutrix) had caught hold of me and the remaining three had
taken turns to gang rape her. During the same time, even
the bus driver had gang raped (the prosecutrix) in turns.

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 The articles which those boys had snatched from me
included my one 'Samsung Galaxy S-Duo mobile, another
Samsung make mobile, a purse containing therein Rs.
1000, City Bank Credit Card, ICICI Debit Card, Company
ID Card, Delhi Metro Smart Card besides my black colored
jeans, a silver ring, a golden ring and Hush Puppies
shoes. They had also snatched the Nokia mobile phone
and grey colored purse of (the prosecutrix). Those boys
had snatched even the wrist watches of both of us. During
that fight, the two boys who had dragged (the prosecutrix)
to the rear seat were being addressed by the remaining
boys in the names of Ram Singh and Thakur. I had been
trying very much to go to the rear side and save
(prosecutrix) but the three boys out of them had held me
forcibly there. Whenever those three boys talked amongst
- themselves, they addressed each other in the name of
Raju, Pawan and Vinay. At that time, I had heard those
boys saying, "this girl has died. Throw her out of the
bus". Those boys had hit me further with the rod at that
time. Then both of us were dragged to the rear gate of the
bus but the rear gate was closed. Those boys could not
open the rear gate even after trying too much. Then they
dragged us to the front door of the bus and threw us out of
the bus. During the whole incident the bus driver drove the
bus, fast and the remaining boys had told him to do so. After
being thrown from the bus, I had been a little conscious. After
throwing us from the bus, the bus driver had taken such a
turn that had I not pulled (the prosecutrix), the bus might
have passed over her. All these boys had gang raped (the
prosecutrix) and had hit me and had attempted to kill me.
Therefore, strict legal action may be taken against all these
boys.
21. PW-74 S.I. Subhash Chand has deposed at length with regard to
the aforesaid and testified that after recording of the statement of the
complainant (Ex. PW1/A) and his supplementary statements under
Section 161 of the Code of Criminal Procedure (Ex. PW-80/D-1 and
Ex. PW-80/D-3), the Investigating Officer was led to the spot by the
complainant, who pointed out the boarding point to the I.O., that is,
the Munirka bus stand as well as the spot at Mahipalpur flyover,
where he and his companion (the prosecutrix) were thrown off the
bus. The dumping point had already been secured by the police

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owing to the fact that the victims were rescued from there. The Crime
Team had also been called to the spot by the Investigating Officer
which had picked up various debris including blood stained grass,
mulberry leaves etc., which were seized vide memo Ex. PW74/C. The
Crime Team had also taken photographs of the dumping spot, which
are exhibited as Exbs. PW-43/A-1 to PW-43/A-9 (negatives) and PW-
38/D-1 to PW-38/D-9 (positives). The Investigating Officer, SI
Pratibha Sharma (PW-80) prepared a rough site plan of the boarding
point as Ex. PW-80/A and the place where the victims were dumped
as Ex. PW-80/B at the instance of the complainant.
22. PW-38, Head Constable Sonu Kaushik took rough notes and
measurements of the dumping spot at Mahipalpur flyover. at the
instance of the Investigating Officer, and thereafter of the boarding
point at Munirka bus stand. On the basis of the said rough notes and
measurements, he subsequently prepared scaled site plans of the
aforesaid places, exhibited as Ex. PW-38/A and Ex. PW-38/B.
23. Adverting to the statements made by the prosecutrix, what
might be aptly termed as her first dying declaration is the statement
made by the prosecutrix before the concerned doctor, viz., PW-49, Dr.
Rashmi Ahuja, on being admitted to the hospital, i.e. Safdarjung
Hospital.
24. PW-49. Dr. Rashmi Ahuja in her evidence states that on the
night of 16.12.2012 at about 11.15 PM, the prosecutrix was brought
to the casualty by a PCR Constable. As per PW-49 Dr. Rashmi
Ahuja, she recorded the history of the patient as given by the
prosecutrix in the Casualty/GRR paper in her own handwriting, which

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is exhibited as Ex.PW-49/A and also prepared the MLC, which is
Ex.PW-49/B. The relevant portion of her evidence relating to the
recording of the MLC and the brief medical history of the prosecutrix
is extracted herein below:-
After examining the patient I prepared the MLC No.
37758 which is Ex. PW49/B and same is in my hand writing and
bears my signature at point A. This MLC contains the alleged
history as told by the prosecutrix herself and is recorded
verbatim. Same is at point A to A.
As per t he al leged h ist or y t old by t he pa t ient it
w as t he case of gang r ape in a m ovi n g bus by 4 - 5
m an w hile she w as com ing f r om a m ovie w it h her
boy f r ie nd. She w as slapped o n her f ace, kicked on
her abdom en and bi t t en over lips, cheek, breast and
vulval region. She remembers intercourse two time and
rectal penetration also. She was also forced to suck their penis
but she refused. All this continued for half an hour and then she
was thrown off from the moving bus with her boy friend.
It was the brief of the history which was told by the
patient. However in Ex. PW-49/A, I recorded the detail history
given by the prosecutrix . Same is as under:
The prosecutrix, 23 years old, brought to GRR with
PCR constable with alleged history of gang rape, as told by
the prosecutrix. According to her she went to watch movie
with her boy friend. She left the movie at about 8.45PM and
was waiting for bus at Munirka bus stand where a bus going
to Bahadurgarh stopped and both climbed the bus at around
9 PM. At around 9.05 to 9.10 PM , around 4-5 men in the bus
started misbehaving with the girl, took her to the rear side of
the bus while her boy friend was taken to front of the bus.
Both were beaten up badly. Her clothes were torn over, she
was beaten up, slapped repeatedly over her face, bitten over
lips, cheek, breast and mons veneris. She was also kicked
over her abdomen again and again. She was raped by a
minimum of two men, she does not remember intercourse
after that. She also had rectal penetration. They also forced
their penis into her mouth and forced her to suck which she
refused and she was beaten up instead. This continued for
half an hour and she was then thrown away from the moving
bus with her boy friend. She was taken up by the PCR Van to
the hospital.
This history is mentioned at point A to A of Ex. PW-49/A.

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 At the time of her examination the prosecutrix was
responding to verbal commands. She was having following
external injuries :
i. Bruise over left eye covering whole of the eye.
ii. Injury mark (abrasion) at right angle of eye.
iii. Bruise over left nostril involving upper lip.
iv. Both lips edematous.
v. Bleeding from upper lip present.
vi. Bite mark over right cheek.
vii. Left angle of mouth injured (small laceration).
viii. Bite mark over left cheek.
ix. Right breast bite marks below areola present.
x. Left breast bruise over right lower quadrant,
bite mark in inferior left quadrant.
Per abdomen :
i. Guarding & rigidity present
Local examination :
i. cut mark (sharp) over right labia present.
ii. A tag of vagina (6cm in length) hanging
outside the introitus.
iii. There was profuse bleeding from vagina.
Per vaginal examination :
i. A posterior vaginal wall tear of about 7 to 8
cm.
Per rectal examination :
i. Rectal tear of about 4 to 5 cm., communicating
with the vaginal tear.
The patient was prepared for OT and sent for an urgent
X-ray and urgent ultra sound. She was referred to OT for
complete perineal tear repair.
I may mention here that before examination, 20
samples (exhibits) were taken. The details of these exhibits
are mentioned in Ex. PW-49/A from portion B to B. These
samples in sealed condition sealed with the seal of hospital
along with sample seal were handed over to concerned
investigating officer Inspector Raj Kumari.
On 27.12.2012, SI Pratibha Sharma moved an application
for tendering the opinion regarding the nature of injuries . The
application is Ex. PW-49/C and my opinion is Ex. PW-49/D on
the said application.

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25. It is pertinent to note at this juncture that with regard to the
nature of the injuries suffered by the prosecutrix, PW-49 Dr. Rashmi
Ahuja opined that the Injuries to recto vaginal area are dangerous
in nature (Ex.PW-49/D).
26. It may also be noted that PW-49 Dr. Rashmi Ahuja in her
further testimony clarified that on 02.01.2013 an application Ex.PW-
49/E was moved by Inspector Anil Sharma (second IO) for seeking
clarification as to whether the victim herself had stated the facts
recorded on the MLC or otherwise, in response to which she gave her
comments at Point A to A of Ex.PW-49/E. A perusal of the said
document Ex.PW-49/E shows that the opinion rendered by PW-49
Dr. Rashmi Ahuja was as under:-
The assault history & related events were told by the
victim herself to me which I recorded on the MLC No.37758
dated 16/12/12 at 11.30 pm.

27. From the aforesaid, it clearly emerges that the prosecutrix had
herself narrated the assault history and related events and thus the
MLC (Ex.PW-49/B) may appropriately be termed as the first dying
declaration of the prosecutrix recorded by the medical practitioner
who attended upon her in the first instance.
28. On 21.12.2012, the concerned SDM, Ms. Usha Chaturvedi,
who appeared in the witness box as PW-27, recorded the second
dying declaration of the prosecutrix (Ex. PW-27/A) and forwarded
the same (vide letter Ex. PW-27/B) to the A.C.P. The prosecutrix in
the aforesaid dying declaration vividly describes the incident
including the insertion of rods in her private parts and further states
that the accused were calling each other Ram Singh, Thakur, Raju,

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Mukesh, Pawan and Vinay. The relevant portion of the statement is
extracted herein below:-
Q.09 Iske baad kya hua? Kripya vistaar se bataiye.
Ans.09 Paanch minute baad jab bus Malai Mandir ke pul
par chadi toh conductor ne bus ke darwaze bandh kar diye aur
andar ki batiya bujha di aur mere dost ke paas akar galiyan
dene lage aur marne lage. Usko 3-4 logo ne pakad liya aur
mujh ko baki log mujhe bus ke peechey hisey mein le gaye aur
mere kapde faad diye aur bari-2 se rape kiya. Lohey ki rod se
mujhe mere paet par maara aur poore shareer par danto se
kata. Is se pehle mere dost ka saman - mobile phone, purse,
credit card & debit card, ghadi aadi cheen liye. But total chhey
(6) log the jinhoney bari-bari se oral (oral) vaginal (through
vagina) aur pichhey se (anal) balatkar kiya. In logo ne lohe
ki rod ko mere shareer ke andar vaginal/guptang aur guda
(pichhey se) (through rectum) dala aur phir bahar bhi
nikala. Aur mere guptango haath aur lohe ki rod dal kar
mere shareer ke andruni hisson ko bahar nikala aur chot
pahunchayi. Chhey logo ne bari-bari se mere saath kareeb ek
ghante tak balatkar kiya. Chalti huyi bus mein he driver badalta
raha taaki woh bhi balatkar kar sake.

Q.10 Kya rastein mein kahin bus ruki?

Ans.10 Nahi.

Q.11 Aapne puri ghatna key dauran 100 number par

phone karne ki koshish ki ya police picket dekh kar chillaye?

Ans.11 Ghatna shuru hone se pehle ladai-jhagde ke

dauran hi un logon ne hamare phone cheen liye the isliye
phone karne ka mauka hi nahi mila. Main aur mera dost chilla
rahe the lekin shayad bahar kisi ne suna nahi.

Q.12 Is ghatna ke dauran aapne un logo ko aapas baat

cheet karte suna. Kya weh aapas mein naam le rahe they?
Aur kis tarah dikh rahe the?

Ans.12 Purey ghatna kram mein maine suna ki woh log

pakdo, kapdey fado maro, pichhey le chalo aur bhaddi galiyan
de rahe the. Weh Ram Singh, Thakur, Raju, Mukesh,
Pawan, Vinay adi naam le rahe the. Raat ka samay aur
andhera hone ki wajah se sare kale hi dikh rahe the. Bol chaal
ki bhasha aur unke appearance se weh anpad aur driver-
cleaner type prateet ho rahe the.

Q.13 Is purey ghatna kram ke dauran aap hosh mein

thi? Aapko pata lag raha tha ki aapke saath kya ho raha hain?

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 Ans.13. Aadhe time hosh tha uske baad behosh ho jaati
thi toh woh log laat aur ghuso se marney lagtey the. Jab mera
dost mujhe bachane ki koshish karta toh who log ussey pakad
kar rok lete the. Usse bhi lohe ki rod se peeta aur sir par bhi
maara issey woh bhi ardh-behoshi ki haalat mein tha.

Q.14 Is sab ke baad kya hua?

Ans.14 Mere dost ke bhi saare kapde utaar liye the aur
hum dono ko maraa hua samajh kar chalti huyi bus se sadak
par faink diya. Hum dono nagn awastha mein sadak ke kinare
pade huye the jise kisi gujarne wale vyakti ne dekh liya aur PCR
ko inform kar diya.

29. Adverting next to the third dying declaration made by the

victim to PW-30 Shri Pawan Kumar, learned Metropolitan
Magistrate, the application for recording of the said statement under
Section 164 Cr.P.C. was moved by the Investigating Officer on
24.12.2012, which is exhibited as Ex.PW-30/A and thereafter, the
learned Magistrate fixed the date for recording of the statement as
25.12.2012 at 9.00 AM at Safdarjung Hospital, vide his endorsement
at Point P to P-1 on Ex. PW-30/A.
30. The relevant part of the document Ex.PW-30/D is reproduced
hereunder for the sake of ready reference:-
25/12/2012 at 01.00 p.m.at ICU Safdarjung Hospital.

Statement of Prosecutrix (Name and Particulars

withheld)

As opined by the attending doctors the Prosecutrix is

not in position to speak but she is otherwise conscious
and oriented and responding by way of gestures, so I am
putting question in such a manner so as to enable to
narrate the incident by way of gesture or writing.

Ques. : When and at what time the incident happened?

i. 20/12/2012 2. 13/12/2012 3. 16/12/2012
Ans. : 16/12/12 (by writing after taking time)

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 Ques.: Have you seen the staff of the bus?
1. Yes 2. No
Ans. : 1 yes by gesture (nodding her head)

Ques.: Have you seen those people at that time?

1. Yes 2. No
Ans. : 1

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

writing)
Ans. : By iron rod which was long.

Ques.: What happened of your belongings means mobile etc.?

1. Fell down 2. Snatched by them 3. Dont know
Ans. : 2

Ques.: Besides rape where and how did you get the injuries?
(tried to answer by writing)
Ans. : Head, face, back, whole body including genital parts
(by gesture indication)

Ques.: By which names they were addressing to each other?

(tried answer by writing)
Ans. : 1. Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju.

Ques.: What did they do after rape?

1. Left at home 2. Threw at unknown place
3. Got down at some other bus stop.
Ans: 2.

31. Mr. A.P. Singh and Mr. M.L. Sharma, learned counsel for the
Appellants, assailed the dying declarations made by the prosecutrix
before the S.D.M. and the M.M. on a number of grounds to contend
that neither of the aforesaid dying declarations could form the basis of
conviction of the Appellants. It is proposed to deal with the said
contentions at the relevant time. Suffice it to state at this juncture that
the commonality in their respective contentions was with regard to the
first dying declaration of the prosecutrix, in that both counsel
vehemently contended that this was the only statement made by the

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prosecutrix which could be worthy of any credence and the Appellants
not having been named as the assailants in the said statement made by
the prosecutrix before the concerned doctor, the introduction of their
names in her subsequent statements was nothing but political
manipulation in conspiracy with the authorities concerned. But more
about this later.
SECOND SEGMENT OF INVESTIGATION
32. At the outset, we note that the presence of the complainant and
the prosecutrix at Saket till 8:57 PM is proved by the CCTV footage
produced by PW-25 Rajender Singh Bisht in a CD (Ex.PW-25/C-1
and PW-25/C-2) and the photographs (Ex.PW-25/B-1 to Ex.PW-
25/B-7). The certificate under Section 65B of the Indian Evidence
Act, 1872 with respect to the said footage is proved by PW-26 Shri
Sandeep Singh vide Ex.PW-26/A.
33. It is significant that the investigating agency got their first clue
on 17.12.2012 from the viewing of the CCTV footage at Hotel Delhi
Airport situated near the dumping spot. The said footage showed a bus
matching the description given by the complainant at 9:34 PM and
again at 9:53 PM. The said bus had the word Yadav on one side. Its
exterior was of white colour having yellow and green stripes and its
front tyre on the left side did not have a wheel cap.
34. The complainant (PW-1) in his testimony corroborates that he
had taken the I.O. to the place where he and the prosecutrix were
thrown by the accused persons from the moving bus. He further states
that the I.O. then made inquiries from the nearby hotels to obtain
CCTV footage and on seeing the CCTV footage at Hotel Delhi

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Airport, he identified a bus of the same description which he had
boarded with the prosecutrix. He further deposed that the said bus was
seen in the footage twice.
35. The pen drive containing the CCTV footage(Ex.P-67/1) and the
CD (Ex.P-67/2) were thereupon seized by the I.O. vide seizure memo
Ex.PW-67/A from PW-67 Pramod Kumar Jha, the owner of Hotel
Delhi Airport. The same are identified by PW-67 Pramod Jha, PW-
74 S.I. Subhash, and PW-76 Gautam Roy from CFSL (PW-76)
during their examination in Court. PW-78, the SHO, Inspector Anil
Sharma has testified that the said CCTV footage seized vide seizure
memo Ex.PW-67/A was sent to the CFSL through S.I. Sushil
Sawariya (PW-54) on 02.01.2013, and this part of the testimony of
PW-78 is corroborated by the testimony of PW-54 SI Sushil Sawaria
and PW-77, the MHC(M). Thereafter, on 03.01.2013, the report of
the CFSL was received.
36. It is significant that the CCTV footage shown in the pen drive
(PW-67/1) and the CD (PW-67/2) were played during the cross-
examination of PW-67 Pramod Jha before the learned trial court. The
observations of the learned trial court recorded in the evidence of PW-
67 are apposite, which read as follows:-
Court observation:

At this stage, at the instance of Ld. Defence counsel the pen

drive is used in the laptop and a white colour bus is seen
moving in front of hotel at 9.34PM and 9.53PM. The front wheel
cap of the same bus is also not there. The word YADAV is
written on the bus. However the registration number of the bus
is not appearing in pen drive.

At this stage the CD Ex. P-67/2 is also run in the court room on
the laptop and it is also shows a white colour bus on which the

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 word YADAV is written, moving in front of the hotel at 9.34PM
and 9.53PM.

37. PW-76 Gautam Roy, Sr. Scientific Officer and also the Head
of the Department Computer Forensic Division in CFSL, CBI
corroborates the fact that on 02.01.2013 he received two sealed
parcels sealed with the seal of PS and the seals tallied with the
specimen seals provided. A blue coloured pen drive was found in
parcel No.1, which he marked as Ex.1 and a Moserbear CD in the
second parcel, which he marked as Ex.2. There was also a
questionnaire with the parcels Ex.PW-76/A. PW-76 Gautam Roy
testified that he examined both the exhibits by playing them in the
compuer and the bus was seen twice, at 9:34 PM and 9:54 PM. The
bus shown in the exhibits had the word Yadav written on its body
and front wheel cover was missing and it had a dent on its rear side.
The witness further testified that he photographed all these three by
freezing the pen drive and the CD, and that these photographs were
compared by him with the photographs taken by the photographer
PW-79 P.K. Gottam which he had summoned. The witness proved on
record the three comparison charts prepared by him in this regard as
Ex.PW-76/B, PW-76/C and PW-76/D, and his detailed report as
Ex.PW-76/E.
38. It may be noted that Gautam Roy (PW-76) clarified that there
was a typographical mistake in his report (Ex.PW-76/E), where only
one time is written, i.e., 21:34, but in his observation and draft report
the bus is seen two times, i.e., at 21:34 and 21:54 and the said timings
are mentioned in the said photographs Ex.PW76/B, Ex.PW76/C and

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Ex.PW76/D. The witness proved the said draft report as Ex.PW-76/F.
It is also relevant to note at this juncture that in the course of cross-
examination of Gautam Roy (PW-76), the CCTV footage was once
again played in Court at the request of the defence counsel while PW-
76 Gautam Roy was in the box and a specific question was put to him
with regard to tampering, the answer to which is extremely
significant. The question and answer are accordingly extracted
below:-
Question: Is it correct that pictures, being played in the laptop
today are not clear as the same are not (sic.) tampered with?
Ans: There is no tampering in the CD or the pen drive. I
need to add that CCTV footage are always not clear. Vol.:
However this footage was clear in my system. Vol.: Even
today the picture is totally clear and we have a video
forensic software which make the pictures more clear.

39. PW-79 P.K. Gottam from CFSL, CBI in respect of the

photographs aforesaid testified that on 17.12.2012 and 18.12.2012, he
took photographs of the bus bearing No.DL-1P-C-0149 parked at
Thyagraj Stadium, INA, New Delhi from different angles as per the
requirements of finger print and biology experts. He further testified
that he handed over the positives of the said photographs Mark B1 in
Ex.PW-76/B, photographs Mark C1 and C2 in Ex.PW-76/C, and
photograph Mark D1 in Ex.PW-76/D to Shri Gautam Roy (PW-76) as
per his requisition. He deposed that there was no possibility of
tampering with the photographs as the software used for developing
them was tamper proof.
40. A look now at the CFSL report, which is marked as Ex.PW-
76/E. The opinion given by the CFSL is that there was no

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tampering or editing in both the exhibits (Ex.P-67/1 and Ex.P-
67/2), and that a bus having identical patterns as the one parked
in Thyagraj Stadium is seen in the CCTV footage, which includes
the word Yadav written on one side, back side dent (left) and
absence of wheel cover on the front left side. As already noted, the
said report is proved by its author PW-76 Gautam Roy, Senior
Scientific Officer and also Head of the Department, Computer
Forensic Division in CFSL, CBI and is even otherwise per se
admissible under Section 299 Cr.P.C.
41. In the course of hearing, we have also viewed the CCTV
footage which starts at 21:00 hours and ends at 22:00 hours. It was
noted by us that the bus is first sighted at 21:34 hours and thereafter
for the second time at 21:53:56 hours. Thus, the CCTV footage
showing the bus moving twice with the word Yadav written on it
and with its left front wheel cover missing is clearly identifiable. Be
that as it may, the seizure of the CCTV footage was a prelude to the
subsequent events as this was the vital clue which unravelled the
sequence of events leading to the seizure of the bus and the arrest of
the culprits.
42. Apparently, on the same day, that is, on 17.12.2012, on receipt
of secret information, the Investigating Officer, SI Pratibha Sharma
(PW-80) with SI Subhash (PW-74) and Constable Kirpal Singh (PW-
65), went to Ravi Dass Camp at R.K. Puram, where they saw a bus
matching the description seen in the CCTV footage identified by the
complainant, parked near the Gurudwara.

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43. PW-74, SI Subhash testifies that when they reached near the
bus, one person got down from it and after seeing them, he started
running. He chased that person and apprehended him with the help of
Constable Kirpal (PW-65). On inquiry, that person disclosed his
name as Ram Singh (since deceased), r/o Ravi Dass Camp, Sector 3,
R.K. Puram. After apprehending Ram Singh (since deceased), he and
the Investigating Officer, SI Pratibha (PW-80) checked the bus. The
bus had red coloured seat covers and yellow coloured curtains. The
description given by the complainant was matching with the
description of the said bus. The seats of the bus were found wet.
Some blood was visible on the corner of the wall touching the ceiling
as well as on the floor of the bus. He had also noticed that Ram Singh
(since deceased) was wearing a green and black coloured T-shirt and
its collar was torn. The said T-shirt had blood stains on it. He also
noticed blood stains on Ram Singhs brown coloured chappals. Ram
Singh (since deceased) on being asked by S.I. Pratibha about the
blood stains in the bus as well as on his T-shirt and chappals and also
qua the condition of the bus, could not give any satisfactory reply.
44. On further interrogation by SI Pratibha (PW-80), Ram Singh
(since deceased) admitted the incident and was arrested vide memo
Ex. PW-74/D. [The arrest memo shows the time of his arrest to be
4.15 p.m. on 17.12.2012] His personal search was conducted vide
memo Ex. PW-74/E and the accused made disclosure statement vide
Ex. PW-74/F. Ram Singh also got recovered two iron rods from
the tool box of the drivers cabin, which were seized and sealed
vide memo Ex. PW-74/G. From the tool box, he also took out one

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Debit Card of Indian Bank in the name of Asha Devi (PW-75), which
was seized by SI Pratibha vide memo Ex. PW-74/H. The driving
licence of Ram Singh and other documents relating to the bus were
seized vide memo Ex. PW-74/I and the keys of the said bus vide
memo Ex. PW-74/J. The bus Registration No. DL-1PC-0149 was
seized vide memo Ex. PW-74/K.
45. As per the further deposition of PW-74, SI Subhash Chand, the
word Dineshwas written on the back side of the bus, Ex. P-1. The
entry gate of the bus was ahead of the front left wheel. The rear wheel
had a white coloured cap but the front wheel towards entry gate was
without wheel cover. The t-shirt and chappals of Ram Singh which
were blood-stained were seized vide memo Ex. PW-74/L bearing his
signatures at Point A. Ram Singh then led the raiding party to a
place where they had burnt the clothes of the victims. They found
some ashes and partly burnt clothes there, which were put in a paper
bag and then sealed and seized vide memo Ex. PW-74/M. SI Pratibha
(PW-80) prepared a site plan of the place where the bus was found
parked, and where the burnt ashes were found on the side of Venktesh
Road near the cap/cover of the nala. The said site plan was Ex. PW-
74/N. Thereafter, Ram Singh was sent to the Police Station with
Constable Kirpal (PW-65). Constable Suresh (PW-42) was called to
the spot and the bus taken by him to the Thyagraj Stadium at around
5.45 p.m. The CFSL team reached Thyagraj Stadium at around 6.00
p.m. for inspection of the bus and lifted some exhibits and handed
them over to SI Pratibha (PW-80), who sealed the said exhibits
separately vide memo Ex. PW-74/P. Seal after use was handed over

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to him (PW-74 SI Subhash Chand). PW-74, SI Subhash Chand was
subjected to extensive cross-examination but withstood the same and
nothing emerged therefrom to dis-credit his testimony in any manner.
46. PW-38, H.C. Sonu Kaushik then prepared sketch of the bus
bearing Registration No. DL-1P-0149 while it was parked at Thyagraj
Stadium (Ex.PW-38/C), which he states he handed over to the I.O.,
S.I. Pratibha Sharma.
47. The fact that bus bearing Registration No. DL-1PC-0149 was
one of the buses hired by Birla Vidya Niketan School, Pushp Vihar,
New Delhi and the driver of the bus at the relevant time was Ram
Singh is sought to be proved by the prosecution through the testimony
of PW-16 Rajeev Jakhmola, Manager (Administration) of the said
school. The witness testified that one Dinesh Yadav (PW-81) had
provided to the school seven buses including bus bearing No. DL-
1PC-0149 for the purpose of ferrying the children of the school.
The driver of this bus was one Ram Singh s/o Mange Lal. The
documents relating to the bus including photocopies of the agreement
between the School and the bus contractor, copy of the driving licence
of Ram Singh and letter of termination dated 18.12.2012 with Yadav
Travels were furnished by him to the Investigating Officer, SI
Pratibha vide his letter dated 25.12.2012, exhibited as Ex. PW-16/A
(colly.).
48. Thus, according to the prosecution, from the evidence of PW-
16 Rajeev Jakhmola, it stands proved that the bus in question was
routinely driven by Ram Singh. The testimony of PW-16, Rajeev
Jakhmola is corroborated by the testimony of PW-81, Dinesh Yadav,

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who was the owner of the bus in question. PW-81, Dinesh Yadav
testified on the same lines as PW-16, Rajeev Jakhmola, and stated that
accused Ram Singh was the driver of the bus Ex.P.1 in the month of
December, 2012 and one Akshay was the helper in the said bus. He
further testified that on 25.12.2012 he had handed over the documents
relating to the bus to the police, which were seized vide Ex. PW-80K
and P-81/1 (colly.). Significantly, PW-81, Dinesh Yadav further
testified:
This bus was being parked by accused Ram Singh near
his house because this bus was attached with the school
and also with an office as a chartered bus and that the
accused used to pick up the students early in the
morning.

49. Significantly also, the learned trial court after recording the
examination-in-chief of this witness noted:
The identity of the bus is not disputed by the learned
defence counsels for the accused persons.

50. In his disclosure statement Ex.PW-74/F, Ram Singh admitted to

the commission of the offence along with certain other persons and
stated that he could tell about their whereabouts: Apne sathio ko
talash karke unke thikano se unko pakadwa sakta hun. It is the case
of the prosecution that co-accused Vinay, Pawan and the JCL were
arrested pursuant to the disclosure made by accused Ram Singh.
Accused Ram Singh further disclosed that he had used two iron rods
to hit the complainant: Maine cabin se do rod lohey ki nikali aur
meine ladke ke sir par lohey ki rod se vaar kar diya. and that he had
taken a debit card from amongst the articles looted from the victims:
Maine bhi aik debit card shopping ke liye rakh liya tha.

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51. PW-75 Asha Devi, mother of the prosecutrix identified the said
debit card as the one belonging to her during her testimony in Court.
She stated that the said ATM Card was of Indian Bank and was issued
in her name which she had given to her daughter, the prosecutrix, for
use. This part of her testimony is corroborated by PW-4 Ms. Agila,
Manager, Indian Bank who proved the statement of account of Bank
Account No.424561737 which was in the name of Asha Devi as
Ex.PW-4/A, the requisite certificate under Section 65B of the Indian
Evidence Act, 1872 as Ex.PW-4/B and the letter of the Chief
Manager, Janak Puri Branch addressed to the I.O. certifying that debit
card No.5044339142323735808 was issued on 07.04.2010 to Smt.
Asha Devi as Ex.PW-4/C.
52. In his disclosure statement, Ram Singh further disclosed that
on the night of 16/17.12.2012 he had burnt the clothes of the victims
outside the gate of Ravi Dass Mandir, Sector-3, R.K. Puram. Iske
baad ladka-ladki ke kapde jinse bus main khoon va gandagi saaf kee
thi va purse tatha kuchh cards ko 16, 17.12.2012 kee raat ko hi
Sector-3 R.K. Puram Ravidass Mandir ke gate ke bahar road par jala
diya tha. PW-74 SI Subhash testifies that accused Ram Singh had
led them to the place where ashes and partly burnt clothes were seized
vide seizure memo Ex.PW-74/M by the I.O. This part of the
testimony of PW-74 is corroborated by the testimonies of two
independent witnesses, namely, PW-13 Brijesh Gupta and PW-14
Jiwat Shah. Both the said witnesses testified on the same lines and
also identified accused Mukesh and accused Ram Singh present in the
Court on that day. Thus, the factum of the burning of the clothes of

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the victims stands proved through the testimonies of two
independent witnesses, namely, PW-13 and PW-14.
53. The further case of the prosecution is that on the following day,
on the pointing out of accused Ram Singh, the IO, SI Pratibha Sharma
arrested accused Pawan Kumar @ Kalu and accused Vinay Sharma.
PW-60 Head Constable Mahabir of Police Station Vasant Vihar
was a witness to the said arrest made near Ravi Das Temple. The
relevant portion of his testimony reads as under:-
At about 1 PM, accused Ram Singh pointed out towards
accused Vinay and accused Pawan who were standing near a
Municipal Tap and told us about their involvement. I
apprehended accused Pawan and whereas SI Vishal
apprehended accused Vinay. Accused Pawan and Vinay are
present in the court today and correctly identified by the
witness. IO had prepared the arrest memo of both the accused
which are Ex.PW60/A and Ex.PW60/B respectively. The
personal search of both the accused were conducted vide
memos Ex.PW60/C and Ex.PW60/D respectively.

54. PW-60 further testified that accused Pawan Kumar on

18.12.2012 was interrogated by the I.O. in his presence and made the
disclosure statement Ex. PW-60/G, the admissible portion of which
reads as under:-
Apradh ke samay pehne hue apne kaprey aur jootey bus mein
ladke se looti gayi mere hisey mein ayi haath ghadi aur ek
hazar rupey meine apni jhuggi mein chhupa rakhe hain jinko
mein aap ke saath chal kar baramad karwa sakta hun.

55. PW-68 SI Mandeep has deposed regarding the recoveries

made pursuant to the disclosure statement of Pawan. The testimony
of PW-68 in this regard is as under:-
Thereafter accused Pawan led the police party to his jhuggi at
J-64 and from this jhuggi he took out his clothes which he was
wearing at the time of incident i.e. a black colour sweater with
grey strips on it and further that Aberconbie & Fitch was written

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 on it, a coco cola colour pant having bloodstains (sic), one
brown colour under wear having bloodstains, and one pair of
Columbus shoes. These items were converted into a parcel
and were sealed with the seal of PS. This parcel was seized
vide Ex. PW-68/F. Thereafter accused Pawan took out one
wrist watch make Sonata and two currency notes of Rs.500
each from under the mattress. The wrist watch was converted
into a parcel and sealed with the seal of PS and then seized
vide memo Ex. PW68/G bears my signature at point A. The seal
after use was given to me. The rough site plan was prepared.
Same is Ex. PW-68/H which bears my sign at point A.

56. The wrist-watch (Ex. P-3), which was seized vide seizure
memo Ex. PW-68/G, as testified by SI Mandeep (PW-68), was
identified by PW-1 (the complainant) in the test-identification
proceedings conducted by PW-30 Shri Pawan Kumar, learned
Metropolitan Magistrate on 25.12.2012 (Ex. PW1/C). PW-1 further
identified the said wrist-watch (Ex. P-3) which is of make SONATA
(Titan) during his testimony in Court and the two currency notes of
denomination Rs.500/- each (Ex. P-7) recovered from the mattress
from the jhuggi of accused Pawan during his testimony in court.
57. As noted above, the prosecution alleges that accused Vinay was
arrested on the same day as accused Pawan, i.e., 18.12.2012 at 1:30
PM on the pointing out of accused Ram Singh from in front of Ravi
Dass Mandir Road, Sector-3, R.K. Puram, New Delhi, vide arrest
memo Ex.PW-60/B.
58. H.C. Mahabir (PW-60) has testified that accused Vinay was
interrogated in his presence and his disclosure statement recorded,
which is Ex.PW-60/H in which he stated that he could get recovered
the clothes and chappals worn by him at the time of the incident and
the looted articles from his jhuggi. Apparently however, on further

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investigation by the I.O. on the following day, i.e., on 19.12.2012, he
changed his stand.
59. S.I. Mandeep (PW-68) testified in Court about the further
interrogation of accused Vinay on 19.12.2012 and the recoveries made
by the I.O. in his presence. The relevant portion of the testimony of
the witness is as under:-
In my presence, interrogation was made from accused Vinay.
His supplementary disclosure statement Ex. PW-68/A was
recorded which bears my signature at point A. Accused
disclosed that he is wearing the same clothes which he was
wearing at the time of incident i.e. one blue colour jean, one
black colour sport jacket, one t-shirt of full sleeve and one pair
of rubber chappal. These items were converted into a pulanda
and then were sealed with the seal of PS and thereafter it was
seized vide memo Ex. PW-68/B which bears my signature at
point A. Thereafter both the accused led the police party to the
area of Ravi Dass Camp and accused Vinay led the police party
to his jhuggi J-105, Ravi Dass Camp. Accused Vinay produced
one pair of leather shoes make Hush Puppy by saying that
these shoes are of the complainant. This pair of shoes was
sealed in a parcel with the seal of PS and this parcel was
seized vide memo Ex. PW-68/C which bears my signature at
point A. From the same jhuggi, he took out one polythene
from a portion of the jhuggi behind the door and from this
polythene, accused took out one NOKIA mobile phone
Model 3110. The IMEI of this mobile was checked. This
IMEI was tallying with the IMEI number of the prosecutrix.
This mobile phone was seized vide memo Ex. PW-68/D which
bears my sign at point A. The IMEI no. of the phone was noted
down in the seizure memo itself. Investigating officer prepared
the rough site plan of the place of recovery which is Ex. PW-
68/E bears my signature at point A.

60. In his subsequent testimony, PW-68 S.I. Mandeep identified the

Hush Puppy shoes of the complainant (Ex.P-2) which were seized in
his presence vide seizure memo Ex.PW-68/C. The complainant (PW-
1) also identified the pair of Hush Puppy shoes (Ex.P-2) belonging to
him recovered from accused Vinay in TIP proceedings conducted by

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the I.O. by moving an application (Ex.PW-30/G) before Shri Pawan
Kumar, learned MM, PW-30. Shri Pawan Kumar (PW-30) has
proved the said application as well as the TIP proceedings, which are
Ex.PW-1/C.
61. On the same day on which accused Pawan and Vinay were
arrested at Delhi, i.e., on 18.12.2012, accused Mukesh was
apprehended from his native village in Karoli District, Rajasthan
on 18.12.2012 after accused Ram Singh, brother of accused
Mukesh, disclosed his involvement and possible whereabouts. He
was, after his apprehension at Rajasthan, brought before the
Investigating Officer S.I. Pratibha at Safdarjung Hospital, where, on
confirmation of the fact that he had with him the complainants
mobile phone and the IMEI number of the said mobile phone
matched the IMEI number of the mobile of the complainant, he
was arrested vide memo Ex.PW-58/B on 18.12.2012 at 6:30 PM.
62. PW-58 S.I. Arvind Kumar testified that on apprehension of
accused Mukesh, he had seized a Samsung Galaxy Duos mobile
phone from him vide seizure memo Ex.PW-58/A, which was
identified in Court by the complainant (PW-1) during his testimony as
the mobile phone belonging to him. The said mobile phone apart
from being identified by S.I. Arvind Kumar (PW-58) was also
identified by H.C. Mahabir (PW-60), who testified that the same was
given by S.I. Arvind Kumar to the I.O. at Safdarjung Hospital in his
presence. PW-56 Sandeep Dabral, Manager of Spice Mobile Hot
Spot Shop at Munirka also testified that a Samsung S-7562 dual SIM
phone with IMEI No. 354098053454886 was sold in the name of the

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complainant on 09.11.2012 vide bill Ex.PW-56/A. In the cross-
examination of this witness, a copy of the photo-credit card of the
complainant has also been exhibited as Ex.PW-56/D-1.
63. PW-60 H.C. Mahabir has testified that accused Mukesh was
interrogated in his presence where he made certain disclosures,
marked as Ex.PW-60/I. The relevant portion of disclosure statement
of accused Mukesh, admissible under Section 27 of the Evidence Act,
is extracted hereinbelow:
Maine ghatna ke samay pehne kapde mere bhai Suresh ke
kamre mein Saket mein chhipa kar rakhe hue hain ko baramad
kara sakta hun. Mere paas se loot ka mobile, mere kabze se
baramad ho gaya hai.

64. Accused Mukesh further disclosed that:

Jis road par vaardaat ke samay bus chalayi un rodon ki
pehchaan kara sakta hun. Aur vaardaat mein shaamil Akshay
Thakur va (JCL) ko talaash karke unke thikaano se pakadwa
sakta hun.

65. Pursuant to the aforesaid disclosure made by accused Mukesh,

the clothes worn by him at the time of the incident were recovered
from the house of Suresh (brother of the accused) from garage No.2,
Anupam Apartment, Saket, at the instance of the accused. PW-48
H.C. Giri Raj has delineated the manner in which the recovery was
made in his testimony and the clothes of the accused seized vide
seizure memo Ex. PW-48/B and states that the seal after use was
handed over to him.
66. On 21.12.2012, at 9:15 PM accused Akshay Kumar was
arrested from village Karmalang, P.S. Tandwa, District Aurangabad,
Bihar, vide arrest memo Ex.PW-53/A.

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67. PW-53 S.I. Upender testified in Court in respect of the
apprehension and arrest of accused Akshay Kumar as under:
On 18.12.2012, I was posted at PS Saket as SI....
A team comprising Inspector Ritu Raj, SHO of PS Saket, SI
Jeet Singh of special staff, ASI Ashok Kumar of Special staff
and myself was constituted. The owner of the bus who had
already been examined, disclosed about the native place of
accused Akshay which was at village Kamaralangh, PS
Tandwa, Distt. Aurangabad, Bihar. Accordingly I along with the
team members named above, departed for Aurangabad, Bihar
and reached there. We reported at PS Tandwa around
11.40AM on 19.12.2012. The area was naxalite prone. So,
bullet proof vehicles and assistance of local police was sought
and the same were provided. We all along with local police
reached village Kamaralangh in the house of accused Akshay
Kumar. A raid was conducted but accused Akshay was not
found present there. Upon local inquiry, it was revealed that
accused may be present at village Gongo, Jharkhand, where
his in laws are residing. As this area was also naxalite prone so
the information from local resident were gathered about his
presence. On 21.12.2012, it was informed to us that accused
Akshay had come to his house at village Kamaralangh.
Immediately we all rushed to the said village. A raid was
conducted. Accused Akshay was found present in his house.
He was apprehended and was interrogated. Accused Akshay
today is present in court and witness has correctly identified the
accused Akshay. Accused Akshay was arrested vide memo
Ex. PW-53/A bearing my signature at point A. The grounds and
information about the arrest of accused was conveyed to his
father vide memo Ex. PW-53/B, the personal search of accused
was conducted vide memo Ex. PW-53/C, both these memo
bear my signature at point A. The disclosure statement of
accused Akshay was recorded by me is Ex. PW-53/D.

68. The testimony of PW-61 SI Jeet Singh corroborates the

testimony of PW-53 SI Upender and further describes in detail the
events leading to apprehension and arrest of accused Akshay and his
disclosure statement recorded vide Ex. PW-53/I leading to the
recovery of his blood stained jeans, the complainants silver ring and
blue coloured metro card.

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69. PW-68 S.I. Mandeep has proved the recovery and seizure of
the said silver ring during his testimony, the relevant portion of which
reads as under:-
On 27.12.12, I again joined the investigation of this case with
SI Pratibha. I along with her and Ct. Om Prakash came to
Saket Court and the custody of accused Akshay Thakur present
in court was taken. In my presence, he led the police party to
House No. 1943, Gali No. 3, Rajeev Nagar, Gurgaon. It was the
room of his brother and from this room he took out one silver
colour ring on which alphabet A was engraved and two metro
cards, which he had taken out from a trunk, lying inside the
room. These items were sealed in parcel with the seal of PS
and then seized vide memo Ex. PW-68/M bears my signature at
point A.

70. On 28.12.2012, an application for conducting TIP was moved

by the I.O. for identification of the articles, which is Ex.PW-9/A. The
TIP proceedings were conducted by PW-9 Shri Lokesh Kumar
Sharma, learned ACMM, South East where the complainant (PW-1)
identified the silver ring (Ex.P-4) recovered from accused Akshay.
The TIP proceedings recorded by PW-9 are Ex.PW-1/D. The
application to obtain a copy of the TIP proceedings moved by the I.O.
is proved on record as Ex.PW-9/B. The complainant (PW-1)
identified the ring (Ex.P-4). The complainant also identified metro
card Ex.P-5 as the one belonging to him and on which he had written
his mobile number and name, and further testified that the other metro
card recovered from accused Akshay belonged to the prosecutrix.
71. PW-53 SI Upender further testified in Court that accused
Akshay Kumar, consequent to his disclosure, took the police party to
Village Naharpur, District Gurgaon, where he led them to the house of
one Tara Chand. It was a three-storyed house where his brother

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Abhay stayed on the ground floor as tenant in one room. The room
was found locked and his brother was not there. The witness further
testified that accused Akshay Kumar took out the key from under one
brick lying adjacent to the door and opened the door. He then took
out one black coloured bag which contained a blue coloured jeans and
stated that he was wearing the said jeans during the incident. The
witness has testified that the said jeans had blood stains on it. PW-61
SI Jeet Singh in his testimony corroborates the above recovery and
also identifies the recovered articles.
72. Further, accused Akhay also got recovered the NOKIA mobile
phone he was using at the time of the incident from Village Naharpur,
Gurgaon. S.I. Upender (PW-53) has testified in Court that he noted
down that the IMEI number and the SIM card number of the mobile
phone on its seizure memo and seized the phone vide seizure memo
Ex. PW-53/H. He identified the blue black coloured Nokia phone
(Ex. P-53/1) during his testimony in Court. PW-61 SI Jeet Singh in his
testimony in Court corroborated the above and also identified the
mobile phone (Ex. P-53/1).
TEST IDENTIFICATION PARADES
73. On 18.12.2012, the Investigating Officer S.I. Pratibha Sharma
moved an application requesting conduct of TIP of accused Ram
Singh in the Court of Sh. Namrita Aggarwal, learned M.M., Saket
Courts vide application exhibited as Ex.PW-17/A. The TIP
proceedings were recorded by PW-17 Mr. Sandeep Garg,
Metropolitan Magistrate and the record of TIP proceedings proved
as Ex.PW-17/B. In the course of his cross-examination, PW-17

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stated that Ram Singh refused to participate in the TIP
proceedings on the ground that he was shown to the witnesses in
the police station. In this context, it deserves to be noted that S.I.
Subhash (PW-74) testified that at the time of the apprehension/arrest,
making of disclosure and consequential recoveries, accused Ram
Singh was kept in muffled face. The witness has specifically testified
that after conducting the personal search of accused Ram Singh, he
was sent to the police station with Constable Kirpal in muffled face.
74. In the light of the aforesaid facts, the prosecution claims that an
adverse inference must be drawn against accused Ram Singh
(deceased) for his refusal to participate in the TIP. In view of the fact
that accused Ram Singh is no more, this aspect need not detain us any
further.
75. On 19.12.2012, PW-17 Mr. Sandeep Garg initiated TIP
proceedings for accused Vinay and Pawan; both the accused refused
to participate in the TIP. It would be apposite to refer to the relevant
portion of the testimony of PW-17 Mr. Sandeep Garg which reads as
under:-
. accused Pawan Kumar @ Kalu and
accused Vinay, both refused to participate in the TIP
proceedings and stated that they had committed a horrible
crime. I recorded their refusal and gave certificate.

76. The cross-examination of PW-17 Sandeep Garg, M.M., on

behalf of accused Vinay shows that the only issue raised is whether
the learned M.M. had enquired at the time of conducting the TIP that
the accused had legal aid in the nature of assistance by a counsel.
This issue, to our mind, is wholly irrelevant in the context of a Test

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Identification Parade and, therefore, need not be dwelt upon. In the
cross-examination of the witness on behalf of accused Pawan, a
suggestion was made by counsel that accused Pawan was shown to
the complainant prior to the TIP, which, however, was strongly
refuted by PW-17 Mr. Sandeep Garg by stating that accused Pawan
had not stated that he had been shown to the complainant prior
to his production before the witness.

77. Thus, insofar as accused Pawan and Vinay are concerned, it is

not even their case that they had been shown to the complainant prior
to the conduct of Test Identification Parade proceedings.

78. In the light of the above, the prosecution claims that adverse
inference is liable to be drawn for the refusal of accused Vinay and
Pawan to participate in TIP without giving any reason whatsoever.

79. The TIP of accused Mukesh was conducted on 20.12.2012

at Tihar Jail by PW-17 Shri Sandeep Garg where PW-1
Awninder Pratap Singh identified the accused. During his
testimony in Court, the complainant (PW-1) has identified his
signature at Point A in the TIP proceedings with respect to accused
Mukesh (Ex.PW-1/E). The application moved by the I.O. S.I.
Pratibha to obtain a copy of the said proceedings is Ex.PW-17/F. It
deserves to be noted that there is no serious challenge to the TIP
proceedings of accused Mukesh in the cross-examination of the
learned Metropolitan Magistrate (PW-17) or even the I.O. (PW-80).
80. On the basis of the evidence relating to the TIP of accused
Mukesh, the prosecution claims that the evidence of identification

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of accused Mukesh in the test identification proceedings
corroborates the dock identification by the eye
witness/complainant, leaving no scope for the false implication of
accused Mukesh as is sought to be contended by the defence.
81. The TIP of accused Akshay was conducted on 26.12.2012 at
Central Jail No.4, Tihar Jail Complex, where the complainant/eye
witness (PW-1) identified accused Akshay. The complainant (PW-
1) has corroborated that he had gone to Tihar Jail for TIP of accused
Akshay on 26.12.2012 and identified his signature at point A in the
TIP proceedings of accused Akshay, exhibited as Ex.PW-1/F.
82. On the basis of the evidence adduced by it as
aforementioned, the prosecution claims that in view of the fact
that accused Akshay voluntarily participated in the TIP, this
evidence against him corroborates the dock identification by the
eye witness/complainant.
THIRD SEGMENT OF INVESTIGATION
83. The case of the prosecution is that in addition to the
identification of the accused by traditional methods viz., dock
identification and identification by TIP, the investigating agency
adopted scientific methods for conclusively proving the identity of the
accused persons, such as DNA analysis, fingerprint and bite mark
analysis. It is proposed to discuss elaborately each of the scientific
methods adopted by the investigation to nail the culprits in view of
the fact that one of the main issues involved in the present case raised
by the defence is the identification of the accused.

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84. With regard to the matching of DNA, PW-45 Dr. B.K.
Mohapatra in his report after analysis of the DNA profiles generated
from the known samples from the prosecutrix, the complainant, and
each of the accused concluded that:
An analysis of the above shows that the samples were
authentic and established the identities of the persons
mentioned above beyond reasonable doubt.

85. Once the identities of each of the persons was established

through DNA analysis, the DNA profiles generated from the
remaining samples, where the identity of biological material found
thereon needed to be ascertained, were matched with the DNA
profiles of the prosecutrix, the complainant and the accused,
generated earlier from known samples. This analysis not only
resulted in linking each of the accused with the victims but also the
scene of the crime. A table summing up the findings of DNA analysis
as set out in the reports of Dr. B.K. Mohapatra (PW-45) in respect of
each of the accused is placed below:-
Serial Name of the Findings of DNA Analysis
No. accused
1. Ram Singh i. Rectal swab from the
prosecutrix contained DNA of
male origin, which matched
the DNA developed from
blood sample of accused Ram
Singh.
ii. The DNA profile developed
from the blood stains from the
underwear of accused Ram
Singh matched with the DNA

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 of the prosecutrix.
iii. The DNA profile developed
from the blood stains found on
the T-shirt and slippers of
accused Ram Singh matched
the DNA profile of the
prosecutrix.
2. Vinay i. The DNA profile developed
from the sample of the blood
of the prosecutrix matched the
DNA profile developed from
stains from under garments of
Vinay.

ii. The DNA profile developed

from blood stains from jacket
of Vinay matched the DNA
profile developed from the
sample of the blood of the
prosecutrix.
iii. A separate DNA profile
developed from blood stains
from jacket of Vinay matched
the DNA profile developed
from the sample of the blood
of the complainant.
iv. The DNA profile developed
from the sample of the blood
of the prosecutrix matched the
DNA profile developed from
the blood stains on the pair of
slippers of Vinay.
3. Pawan i. The DNA profile developed
from the sweater of Pawan

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 matched the DNA profile
developed from the sample of
the blood of the prosecutrix.
ii. A separate DNA profile
developed from the sweater of
Pawan matched the DNA
profile developed from the
sample of the blood of the
complainant.
iii. The DNA profile developed
from the sample of the blood
of the prosecutrix matched
the DNA profile developed
from pair of shoes of Pawan.
4. Mukesh i. The DNA profile developed
from the sample of the blood
of the prosecutrix matched the
DNA profile developed from
blood stains of the pants, T-
shirt and jacket recovered
from accused Mukesh.
5. Akshay i. Breast swab from the
prosecutrix contained DNA
of male origin which matched
the DNA of Akshay.
ii. The first DNA profile
developed from the jeans of
Akshay matched the DNA
profile developed from the
sample of the blood of the
prosecutrix.
iii. The second DNA profile
developed from the jeans of
Akshay matched the DNA
profile developed from the

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 sample of the blood of the
complainant.

86. A table summing the DNA analysis of biological samples lifted

from the material objects such as the bus, the iron rods, and the ash

and unburnt pieces of clothes is placed below:-

Serial Identity of the Findings of DNA Analysis

No. victim
1. Complainant i. The DNA profile developed
from burnt clothes pieces was
found to be of male origin
and was consistent with the
DNA profile of complainant.

ii. The DNA profile developed

from hair and blood stained
pieces of paper recovered
from the bus matched with the
DNA profile of complainant.

iii. The DNA profile developed

from blood stained dried
leaves collected from the
place where both the victims
were thrown matched with the
DNA profile of complainant.
2. Prosecutrix i. The DNA profile developed
from blood stains from both the
iron rods recovered at the
instance of accused Ram Singh
from bus is of female origin

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 and was consistent with the
DNA profile of prosecutrix.

ii. The DNA profile developed

from blood stains from curtains
matched with the DNA profile
of prosecutrix.

iii. The DNA profile

developed from blood stains
from seat covers matched with
the DNA profile of prosecutrix.

iv. DNA profile developed

from blood stains from the
bunch of the hair recovered
from floor of the bus below
sixth row seat, blood stains
prepared from the roof of the
bus near back gate, blood stains
prepared from the floor of the
bus near back gate, blood stains
taken from side of back stairs
of the bus, blood stains taken
from the inner side of the back
door of the bus matched with
the DNA profile of prosecutrix.
87. In his cross-examination, Dr. B.K. Mohapatra (PW-45) clearly
stated that all the experiments were conducted as per the guidelines
and methodology documented in the Working Procedure Manuals of
the laboratory, which have been validated and recommended for use
in the laboratory. The expert witness in the course of his cross-
examination stated that once a DNA profile is generated, its
accuracy is 100%. It may be worthwhile to note at this juncture that

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there is no serious challenge in his cross-examination to the findings
of DNA analysis nor any serious challenge was raised before us by
learned defence counsel in the course of hearing.
88. Another scientific method adopted by the investigating agency
in the instant case to establish the identity of the accused is the age
old fingerprint technology. It emerges from the record that on
17.12.2012 and 18.12.2012, a team of experts from the CFSL had
lifted chance prints from the bus in question (Ex.P-1) at Thyagraj
Stadium. On 28.12.2012, PW-78 Inspector Anil Sharma of P.S.
Vasant Vihar, the then S.H.O. of Police Station Vasant Vihar,
requested the Director, CFSL for taking digital palm prints and foot
prints of all the accused persons vide his letter Ex.PW-46/C.
Pursuant to the said request made by PW-78 Inspector Anil Sharma,
the CFSL on 31.12.2012 took the finger/palm prints and foot prints of
the accused persons at Tihar Jail. After comparing the chance prints
lifted from the bus with the finger prints/palm prints and foot prints
of all the accused persons, PW-46 Shri A.D. Shah, Senior
Scientific Officer (Finger Prints), CFSL, CBI submitted his report
Ex.PW-46/D.
89. As per the report Ex.PW-46/D the result of the aforesaid
examination of the Finger Print Division of the CFSL:CBI:New Delhi
was that the chance prints of accused Vinay Sharma were found
on the bus in question. The relevant portion of the report is as
under:-

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 8. RESULT OF EXAMINATION:

I. The chance print marked as Q.1 is identical with left

palmprint specimen of Vinay Sharma S/o Sh.Hari Ram
Sharma marked here as LPS-28 on the slip marked here as
S.28 (Matching ridge characteristics have been found in their
relative positions in the chance palmprint and specimen palm
print. This forms the basis of the opinion that these prints are
identical. Eight of them have been marked with projected red
lines with their detailed description are placed at Annexure-1)

II. The chance print marked as Q.4 is identical with right

thumb impression of Vinay Sharma S/o Sh.Hari Ram
Sharma marked here as RTS-23 on the slip marked here as
S.23 (Matching ridge characteristics have been found in their
relative positions in the chance print and specimen finger print.
This forms the basis of the opinion that these prints are
identical. Eight of them have been marked with projected red
lines with their detailed description are placed at Annexure-2).

90. From the aforesaid, the prosecution claims that the identity
of the Appellant Vinay Sharma as one of the perpetrators of the
crime stands clearly established.
91. Yet another method adopted by the investigation in the instant
case to establish the identity of the accused persons was bite mark
analysis, which is done through comparison of bite marks found on
the body of a victim with the dental models of the suspects. Suffice it
to note that this method of identification is scientific and widely relied
upon. In the well-known book on Medical Jurisprudence and
Toxicology (Law, Practice and Procedure) by Dr. K.S. Narayan
Reddy, Third Edition, 2010, Chapter VIII page 268, human bites,
their patterns, the manner in which they should be lifted with a swab,
moistened with sterile water and the manner in which such swabs
need to be handled is delineated along with their usefulness in
identification. The last aspect is dealt with as follows:-

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 They are useful in identification because the alignment of teeth
is peculiar to the individual. Bite marks may be found in
materials left at the place of crime e.g., foodstuffs, such as
cheese, bread, butter, fruit, or in humans involved in assaults,
when either the victim or the accused may show the marks,
usually on the hands, fingers, forearms, nose and ears.

92. After making the aforesaid observations, the author dwells

upon the various methods used for bite mark analysis including the
photographic method, which method was utilized in the instant case.
The photographic method is described as under:-
Photographic method: The bite mark is fully photographed
with two scales at right angle to one another in the horizontal
plane. Photographs of the teeth are taken by using special
mirrors which allow the inclusion of all the teeth in the upper or
lower jaws in one photograph. The photographs of the teeth are
matched with photographs or tracings of the teeth. Tracings can
be made from positive casts of a bite impression, inking the
cutting edges of the front teeth. These are transferred to
transparent sheets, and superimposed over the photographs,
or a negative photograph of the teeth is superimposed over the
positive photograph of the bite. Exclusion is easier than positive
matching.

93. In the present case, a number of bite marks were found on the
body of the prosecutrix and, therefore, bite mark analysis was
undertaken by the investigation to establish the identity of the accused
persons. The result of the analysis, as detailed hereunder, proved
that at least three bite marks were caused by accused Ram Singh,
whereas one bite mark has been identified to have been most
likely caused by accused Akshay.
94. Reference in this context may be made to the report of PW-71
Dr. Ashith B. Acharya. The said witness in his report (Ex. PW-
71/C) stated that:
. There is absence of any unexplainable
discrepancies between the bite marks on Photograph No. 4 and

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 the biting surfaces of one of the accused person's teeth, namely
Ram Singh. Therefore, there is reasonable medical certainty
that the teeth on the dental models of the accused person
named Ram Singh caused the bite marks visible on
Photograph No 4; also the bite marks on Photograph
Nos.1 and 2 show some degree of specificity to this
accused persons teeth by virtue of a sufficient number of
concordant points, including some corresponding
unconventional/individual characteristics. Therefore, the teeth
on the dental models of the accused person with the name
Ram Singh probably also caused the bite marks visible on
Photograph Nos.1 and 2..
x x x x x x x x
The comparison also shows that there is a concordance
in terms of general alignment and angulation of the biting
surfaces of the teeth of the lower jaw on the dental models of
the acused person with the name Akshay and the
corresponding bite marks visible on Photograph No.5. In
particular, the comparison revealed concordance between the
biting surface of the teeth on the lower jaw of the dental models
of the accused person with the name Akshay and the bite mark
visible on Photograph No.5 in relation to the rotated left first
incisor whose mesial surface pointed towards the tongue.
Overall, the bite mark shows some degree of specificity to the
accused persons teeth by virtue of a number of concordant
points, including one corresponding unconventional/individual
characteristic. There is an absence of any unexplainable
discrepancies between the bite mark and the biting surfaces of
this accused persons teeth. Therefore, the teeth on the
dental models of the accused person with the name
Akshay probably caused the bite marks visible on
Photograph No.5..

95. It may be noted at this juncture that the prosecution has sought
to establish the chain of custody for the generation of samples in
respect of bite marks by examining the photographer PW-66 Asghar
Hussain, who testified that on the instructions of the I.O. S.I.
Pratibha, he had taken 10 photographs of different parts of the body
of the prosecutrix at SJ Hospital on 20.12.2012 between 4:30 PM and
5:00 PM., which were marked as Ex.PW-66/B (Colly.) [10
photographs of 5 x 7 each] and Ex.PW-66/C (Colly.) [10

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photographs of 8 x 12 each]. PW-66 also proved in Court the
certificate provided by him in terms of Section 65B of the Evidence
Act in respect of the photographs (Ex. PW-66/A).
96. PW-18 S.I. Vishal Choudhary testified to the fact he had
collected the photographs and the dental models from Safdarjung
Hospital on 01.01.2013 and duly deposited the same in the malkhana,
after he (PW-18) had handed them over to the SHO Anil Sharma
(PW-78). The same were thereafter entrusted to S.I. Vishal
Choudhary (PW-18) on 02.01.2013, which is proved vide RC
No.183/21/12, which is exhibited as Ex.PW-77/V. S.I. Vishal
Choudhary (PW-18) further proves taking the said forensic material
to SDM College of Dental Science in Karnataka on the same day and
returning with the report on 09.01.2013. The testimony of this witness
is corroborated by the SHO Inspector Anil Sharma (PW-78).
97. In view of the aforesaid evidence on record and in view of the
further fact that no serious challenge has been raised by the defence to
this evidence, the prosecution alleges that the identification of bite
marks found on the body of the prosecutrix further prove the
involvement of accused Ram Singh and accused Akshay in the
incident.
98. Another scientific tool resorted to by the prosecution for
inculpating the accused is call detail analysis of the mobile numbers
of the complainant, the prosecutrix and accused Ram Singh, Pawan
and Vinay to show the presence of the complainant and the
prosecutrix in Saket and their movement towards Munirka. The
analysis further shows the movement of the accused persons along

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with the complainant and the prosecutrix in the bus to Munirka and
then to Mahipalpur where both the victims were thrown out of the
bus.
99. The Call Detail Records (hereinafter referred to as CDR) of
the mobile number of the prosecutrix (9818358144) are proved by
PW-19 Vishal Gaurav, Nodal Officer, Bharti Airtel vide Ex.PW-
19/B, and analysis of the same shows that the prosecutrix had
received a message and a call at 21:09:26, i.e., at 9:09 PM which was
covered by the cell tower corresponding to Cell ID No.115-52171
which is located at Lado Sarai. The Cell ID chart which corroborates
the same was initially proved vide Ex.PW-19/D, which however
mistakenly shows the site address location to be Firoz Shah Kotla.
Subsequently, PW-19 filed an updated Cell ID chart exhibited as
Ex.PW-19/E, which shows the site address to be Lado Sarai. The
witness categorically stated that the site address mentioned in Ex.PW
19/E is exact and correct whereas in Ex.PW-19/D the said site
location was due to non-updating of the data and because of human
error. The requisite certificate as required under Section 65B, Indian
Evidence Act was proved by him as Ex.PW-19/C.
100. It may be noted that PW-75, Asha Devi, the mother of the
prosecutrix has proved through her deposition that the prosecutrix
was in fact using the mobile number in question and this part of her
testimony has not been seriously challenged.
101. As regards the ownership of mobile phone number
9868612958, the same has been proved by way of customer
application form in the name of Ram Singh along with its related

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documents by PW-24 Rakesh Soni, Nodal Officer, MTNL vide
Ex.PW-24/D (Colly.).
102. The CDR analysis of the call records for the aforesaid mobile
number, exhibited as Ex.PW-24/A, shows that at 21:16:20 i.e. at 9:16
PM the accused Ram Singh (since deceased) received a call in the
area of Hauz Khas, which was covered by the tower having Cell ID
No.3091 proved vide Ex.PW-24/C. The said call, as per the
prosecution, was received by Ram Singh at the time when the accused
including Ram Singh had already committed the offence recorded in
FIR No.414/12, P.S. Vasant Vihar. The certificate under Section 65B
in respect of the CDR is proved vide Ex.PW-24/B.
103. The call detail records proved by the prosecution further reflect
the movement of the bus from Munirka to Mahipal Pur.
104. The ownership of phone No.9711927157 is proved by PW-23
Deepak, Nodal Officer, Vodafone vide Ex.PW-23/A as belonging to
accused Pawan Kumar. The analysis of the call detail records vide
Ex.PW-23/B shows that he had received a call at 21:32:11, i.e., at
9:32 PM, which shows movement of the bus from Naval Officers
Mess to Mehram Nagar being covered by Cell ID Nos.12602991-
16654591 vide Ex.PW-23/D. The certificate under Section 65B with
respect to the mobile phone number given by the witness in his
capacity as Nodal Officer of the service provider is Ex.PW-23/C.
105. That the aforesaid call was received by accused Pawan Kumar
on mobile No.9711927157 is corroborated by the testimony of an
independent witness, namely, PW-12 Santosh Kumar, who, in his
testimony, stated that at around 9 PM on 16.12.2012, at the instance

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of the mother of the accused Pawan @ Kalu, who is having a shop
adjacent to the shop of his father, he had made a call from his mobile
phone No.9873540952 to her son Pawan @ Kalu.
106. It further emerges from the evidence that mobile phone
No.7827917720 belonged to the complainant. PW-20 Col. A.K.
Sachdeva, Nodal Officer from Reliance Communication Ltd.
appeared in the witness box to prove the customer application form
and other documents relating to the ownership of the said mobile
connection as Ex.PW-20/A (Colly). The witness also proved on
record the call detail records in respect of the same as Ex.PW-20/B
(Colly) which show that at 21:35:40 i.e. at 9:35 PM when the mobile
phone belonging to the complainant was in the possession of the
accused, a call was received on his number which was covered by the
tower at Mahipalpur Extension showing Cell ID No.1154-3. The
requisite certificate under Section 65B with respect to the said
number is proved vide Ex.PW-20/C.
107. Further, PW-22 Shishir Malhotra, Nodal Officer, Aircel in his
deposition proved that mobile connection No.8285947545 (which
was being used by accused Vinay) was registered in the name of Smt.
Champa Devi, the mother of accused Vinay Sharma, vide customer
application form and documents Ex.PW-22/A (Colly). The witness
further proved on record the CDR of this phone number Ex.PW-22/B
which shows that he (Vinay) made a call at 21:55:21, i.e., 9:55 PM
which was recorded by the tower at NH-8, near IGI Airport,
Mahipalpur having Cell ID No.55043 Ex.PW-22/D (wrongly
marked as Ex.PW-22/C which is the certificate under Section 65B of

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the Indian Evidence Act). The fact that the said number was being
used by the accused at the time of the incident also finds support
from the fact that an application was subsequently filed by the
accused Vinay before the learned trial court for getting the said
phone back, which had been seized from him at the time of his
arrest. Not only this, in the cross-examination of PW-78 Inspector
Anil Sharma a suggestion was put to the witness to the effect that the
said mobile phone number was being used by accused Vinay and the
witness was shown the footage of a musical programme by accused
Vinay, taken on his aforesaid mobile bearing No.8285947545. The
CDR Ex.PW-22/B further shows that prior to 9:55 PM, i.e., at 7:58
PM and 8:19 PM (19:58:30 and 20:19:37) calls were made by him
which got covered by the tower located at Sector-3, Ravi Dass Camp,
R.K. Puram having cell ID No.13-5613. The analysis thus shows that
after this only one call was made at 9:55 PM, referred to above, which
shows his presence at NH-8, near IGI Airport, Mahipalpur and belies
his claim of not being present at the spot alongwith with his co-
accused.
108. The further analysis of CDR of phone No.9868612958
belonging to Ram Singh shows that at 22:04:57 and 22:06:25, i.e., at
10:04 PM and 10:06 PM, he received two calls which were got
recorded by the towers having Cell Id Nos.47541 and 47633, which
further shows the movement of the bus from Vasant Gaon towards
Munirka. The location of the first call is shown to be at Vasant Gaon
and the second call is shown to have been received at Munirka vide
Ex.PW-24/C.

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109. The learned Special Public Prosecutor contends that the above
electronic analysis of the mobile phones of the victims and the
accused persons clearly shows how the victims and the accused
persons moved from different directions and converged at Munirka
and their movement thereafter from Munirka to Mahipalpur, where
after committing the offence both the victims were thrown out of the
bus. The further call analysis of Ram Singh according to the
prosecution shows the movement of the accused persons in the bus
back to the area towards Ravi Dass Camp where they were residing.
The electronic evidence when cross-referenced with the route map
prepared on the pointing out of the accused Mukesh on 24.12.2012 by
the Investigating Officer (Ex.PW-80/H), which, it is stated, is
admissible under Section 27 of the Indian Evidence Act, shows the
movement of the bus from Munirka bus stop to Mahipalpur flyover
twice and when seen in conjunction with the CCTV evidence it puts
the route map beyond any shadow of doubt.
110. The following chart is sought to be pressed into service to
demonstrate that the electronic evidence on record completely
corroborates the route of the bus and location of the accused and
victims:-

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 ELECTRONIC EVIDENCE CORROBORATING THE ROUTE,
LOCATION OF ACCUSED AND VICTIMS
Witness Evidence/Phone Time Cell ID Location
No.
Rajinder Singh CCTV Footage, 6:15 P.M. to NA Saket Select
Bisht (PW-25) and Saket 8:57 P.M. City Mall
Sandeep Singh
(PW-26)
Select City Mall,
Saket
Vishal Gaurav, 9818358144 9:09 P.M. 52171 Lado Sarai
Airtel (PW-19) [Being used by the (SMS)
Note: Asha Devi prosecutrix]
(PW-75) proves
that this phone
was being used by
the prosecutrix.
Rakesh Soni, 9868612958 9:16 P.M. 3091 Hauz Khas
Dolphin (PW-24) [Registered in the (13 seconds)
name of accused
Ram Singh]
Deepak, Vodafone 9711927157 9:32 P.M. 2991- Naval
(PW-23) [Registered in the (54 seconds) 4591 Officers
Note: Santosh name of accused Mess-
(PW-12) Pawan] Mehram
corroborates this Nagar
call.
Col. A.K. 7827917720 9:34 P.M. 11541 Mahipalpur
Sachdeva, GSM, [Registered in the (2 seconds) Extension
Reliance (PW-20) name of the
complainant (PW-
1)]

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Pramod Jha (PW- CCTV Footage, 9:34 P.M. Mahipalpur
67) Hotel Delhi and 9:53/54
Airport P.M.

Shishir Malhotra, 8285947545 9:55 P.M. 55043 NH-8, Near

Aircel (PW-22) [Registered in the (58 seconds) IGI,
name of Champa Mahipalpur
Devi and was
admittedly being
used by accused
Vinay]
Rakesh Soni, 9868612958 10:04 P.M. 47541- Vasant
Dolphin (PW-24) [Registered in the (51 seconds) 47633 Gaon-
name of accused and 10:06 Munirka
Ram Singh] (25 seconds)
P.M.

111. Suffice it to note at this juncture that no flaw or error could be

pointed out by the defence in the aforesaid chart or even the CDR
analysis placed on record. Thus, according to the prosecution, it may
safely be presumed that the route chart (Ex.PW-80/H) prepared at the
instance of accused Mukesh and the CDR Analysis refered to
hereinabove as well as the CCTV footage complement and
supplement each other, and cumulatively taken the aforesaid
electronic evidence substantiates the case of the prosecution.
Medical Evidence
112. It is proposed next to deal with the medical evidence relating to
the prosecutrix who was treated in the first instance by PW-49 Dr.
Rashmi Ahuja on her arrival at Safdarjung Hospital. The relevant
portion of the testimony of Dr. Rashmi Ahuja (PW-49) has already
been reproduced hereinabove and her opinion vide Ex.PW-49/D,

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opining that the injury to the recto-vaginal area of the victim was
dangerous in nature.
113. The only issue which was raised in the cross-examination of
PW-49 Dr. Rashmi Ahuja was as to why the medical history and
MLC had the thumb impression of the prosecutrix and not her
signature. The doctor has clearly explained it by stating that the
patient was cold and clammy due to vaso-constriction and was
shivering and had to be given IV line and warm saline. PW-49 Dr.
Rashmi also explains that after giving initial treatment and stablising
her, the patient was shifted to the operation theatre.
114. PW-50 Dr. Raj Kumar Chejara delineated the various
surgeries conducted by him on the prosecutrix showing the nature of
injuries and the damage to her internal organs. The first surgery was
performed in the early hours of 17.12.2012 at approximately 4 AM,
which the doctor describes as a damage control surgery. The record of
the said surgery is in the OT Note running into two pages, exhibited
as Ex.PW-50/A, and the noting made by Dr. Raj Kumar Chejara
(PW-50) is Ex.PW-50/B. As per the notings of the doctor in Ex.PW-
50/B, the condition of the small and large bowel was extremely
bad for any definitive repair. As regards the OT notes Ex.PW-
50/A, he testified:-
These OT notes were prepared by Dr. Gaurav under my
supervision. As per this record the diagnosis of surgery team
was blunt trauma abdomen with sexual assault with complete
perineal tear with hemoperitoneum & small and large bowel
injuries. The operative findings were as under:

a. Collection of around 500 ml of blood in peritoneal cavity.

b. stomach pale,

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 c. Duodenum contused.

d. Jejunum contused & bruised at whole of the length and

lacerated & transected at many places. First transection
was 5cm away from D J junction. Second was 2 feet from
the D.J., after that there was transection and laceration at
many places. Jejunal loop was of doubtful viability. Distal
ileum was completely detached from the mesentry till ICJ
(ileocaecal junction). It was completely devascularized.

e. Large bowel was also contused bruised and of doubtful

viability. Descending colon was lacerated vertically
downward in such a manner that it was completely open.

f. Sigmoid colon & rectum was lacerated at many places

linearly, mucosa was detached completely at places, a
portion of it around 10cm was prolapsing through perineal
wound.

g. Liver and spleen was normal.

h. both sides retro peritoneal (posterior wall of the abdomen)

haematoma present.

i. Mesentry & omentum was totally contused and bruised.

j. Vaginal tear present, recto vaginal septum was

completely torn.

Gut was totally bruised and contused in such a manner that it

could not be repaired so proximal jejunostomy was made. `

Laparostomy (abdomen was left open) was made.

115. According to PW-50 Dr. Raj Kumar Chejara, after performing

the operation, the patient was shifted to ICU. Since the first surgery
was damage control surgery, she was taken up for a second surgery
on 19.12.2012. In the said surgery, doctors from the surgical,
gynaecological and anaesthetic teams were associated. The findings
were as follows:-
Abdominal findings:
i. Rectum was longitudinally torn on anterior aspect in
continuation with perineal tear. This tear was continuing upward
involving sigmoid colon, descending colon which was splayed
open. The margin were edematous. There were multiple

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 longitudinal tear in the mucosa of recto sigmoid area.
Transverse colon was also torn and gangrenous. Hepatic
flexure, ascending colon & caecum were gangrenous with
multiple perforations at many pleaces. Terminal ileum
approximately one and a half feet loosely hanging in the
abdominal cavity, it was avulsed from its mesentry and was non
viable. Rest of the small bowel was non existent with only
patches of mucosa at places and borders of the mesentry was
contused. The contused mesentry borders initially appeared
(during 1st surgery) as contused small bowel.
ii. Jejunostomy stoma was gangrenous for approximately
2cm.
iii. Stomach and duodenum was distended but healthy.

Surgical procedure:
1. Resection of gangrenous terminal ileum, caecum
appendix, ascending colon, hepatic flexure and transverse
colon was done.
2. Resection of necrotic jejunal stoma with closure of DJ
flexure in two layers by 30 vicryl.
3. Diverting lateral tube duodenostomy (viz 18f foleys
catheter) brought through right flank.
4. Tube gastrostomy was added as another decompressive
measure (28 size portex tube was used). Tube gastrostomy
was brought from previous jejunostomy site.
5. Abdominal drain placed in pelvis.
6. Rectus sheath closed by using no. 1 prolene,
interrupted suture.
7. Skin closed by using 1 0 nylon.
8. Perineal wound packed with Betadine soaked gauze
piece.
9. Dressing was done.

116. PW-50 Dr. Raj Kumar Chejara further testified that the clinical
notes Ex.PW-50/C formed part of the summoned medical record and
were in the hand writing of Dr. Pintu, Sr. Resident, who was in his
team and these notes were prepared under his supervision. During
this surgery the notes prepared by the gynaecology team in his
presence were Ex.PW-50/D which bear the signature of Dr. Rekha.
According to PW-50, after the surgery the prosecutrix was shifted
back to ICU and remained critical and on 23.12.2012 she had to be re-

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operated (peritoneal lavage and placement of drain under general
anaesthesia). He deposed that the clinical notes prepared on
23.12.2012 (Ex.PW-50/E) were in his handwriting and were signed
by him. As per his further deposition, on 26.12.2012 the condition of
the patient was again examined by a team of doctors and it was
decided to shift her abroad for further management. The note
prepared in this regard was proved by him as Ex.PW-50/F which he
stated bears his signatures and also bears the signatures of the four
other doctors, namely, Dr. Sunil Kumar, Dr. Aruna Batra, Dr. P.K.
Verma and one other doctor. On the following day, i.e., on
27.12.2012, an application being Ex.PW-49/C was moved by the I.O.
S.I. Pratibha for an opinion regarding the nature of the injuries and he
(PW-50) opined that the abdominal injuries were sufficient to cause
death in the ordinary course of nature. His opinion in this regard
was Ex.PW-50/G. After tendering this opinion, he forwarded this
application to HOD (Gynae) for opinion about perineal injuries.
117. PW-50 Dr. Raj Kumar Chejara further testified that thereafter,
on 02.01.2013, Inspector Anil Sharma (PW-78) moved an application
being Ex.PW-49/F for obtaining opinion from the doctors regarding
the weapons of offence. On examination of the weapons viz., the iron
rods after the same were unsealed before him and the other doctors,
including Dr. Sunil Kumar, Dr. Arun Batra, Dr. Rashmi Ahuja,
Dr.Sachin Bajaj and Dr.Dheeraj Sharma who were treating the
prosecutrix, the opinion of their team was that the injuries on the
body of the prosecutrix could be caused by the weapons examined.
Further, it was opined by them that the perineal injury was severe

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and there was a complete tear involving lower 2/3rd of posterior
vaginal wall, recto vaginal septum, anus, anal canal, anterior rectal
wall extending upwards into adjoining large intestine. This injury
could have been caused by thrusting of blunt rod like object forcibly
through vagina and/or anus. Also, as per their opinion: During
the struggle and withdrawal of rod like structure from abdomen,
intestines, prolapsed/herniated which led to irreparable damage,
loss and severe injuries to large and small intestine.
118. It is relevant to point out that the rods (Ex. P-49/1 and Ex. P-
49/2) were shown to Dr. Rashmi Ahuja (PW-49), Dr. Chejara (PW-
50) and Dr. Sachin Bajaj (PW-51), who identified the same during
their examination in Court.
119. It may also be noted that two issues were raised in the cross-
examination of PW-50 Dr. Raj Kumar Chejara. The first issue on
which the witness was cross-examined was with regard to the reason
for transporting the prosecutrix to Singapore and the second was that
the cause of death was not the injuries, but the unhygienic conditions
in the hospital. As regards the first issue, Dr. Chejara opined that the
reason for the shift was on account of the need for critical care and
the transplant of organs and since the effort was to provide the best
medical aid to the prosecutrix, so she was sent abroad. As far as the
second issue is concerned, the witness categorically denied the
suggestion put to him that the prosecutrix suffered from septiceamia
due to presence of any bacteria or due to mishandling such as leaving
of foreign body in her body and clearly explained that the entire basis
of the sufferings of the prosecutrix, which led to her untimely death,

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was on account of the injuries caused, including the injuries to the
rectum and colon and the nature of the weapons used for causing the
said injuries.
120. At this juncture, it is relevant to notice the evidence of the
Medical Superintendent, Safdarjung Hospital, Dr. B.D. Athani (PW-
64).
121. On 20.12.2012, the I.O. moved an application before PW-64
Dr. B.D. Athani seeking the summary of the patients medical status
(Ex.PW-64/A), which was marked by PW-64 to the CMO, In-charge,
Medical Record Department, SJ Hospital vide his endorsement
Ex.PW-64/B. After getting the necessary inputs from the medical
team, PW-64 Dr. B.D. Athani prepared the summary of the patients
medical status. The report itself is Ex.PW-64/C, which explains that
on the date on which the said report was given the patient had
suffered damage to the intestines and several life threatening injuries,
which have been detailed in the evidence of Dr. Chejara (PW-50).
Significantly, Dr. Athani (PW-64) on being cross-examined stated
that the inherent danger of septicaemia was seeded right at the
time of the crime. He also clarified that Dr. Trehan had visited the
hospital in order to help in transporting the patient by air ambulance.
He further clarified that the decision to shift the patient to Mount
Elizabeth Hospital was on account of the organ transplant facility
available there. PW-64 Dr. Athani further stated that Dr. P.K. Verma
(PW-52) had accompanied the patient to Singapore.
122. PW-52 Dr. P.K. Verma, who was in-charge of the ICU, in the
course of his testimony explained that he had accompanied the patient

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to Singapore and in the course of cross-examination stated that not
even one intestinal transplant had taken place in India so far and for
that purpose and for managing her critical condition, the prosecutrix
had to be shifted to Singapore. In further cross-examination, he
clearly stated that the purpose of shifting was to give her advanced
critical care and at a later stage organ transplant. He repeatedly stated
that intestinal transplant has not taken place in any of the hospitals in
India.
123. As regards the death of the prosecutrix at Singapore, PW-34,
Dr. Paul Chui, Forensic Pathologist, Health Sciences Authority,
Singapore deposed that the certified cause of death as given in his
report was sepsis with multi-organ failure following multiple
injuries. The post mortem report was exhibited as Ex.PW-34/A and
scanned copy thereof as Ex.PW-34/B. The witness in his cross-
examination stated that he found that the septiceamia was due to
the injuries sustained by her and explained that his examination is
detailed at pages 11 and 12 of the postmortem report Ex.PW-34/B.
He also deposed that the prosecutrix was admitted to Mount Elizabeth
Hospital on 27.12.2012 at about 8:30 to 9:05 AM and was treated by
the team headed by Dr. Dennis Nyam. He categorically denied the
suggestion that the patient was brought dead to Singapore.
124. A histopathological report was also tendered along with the
postmortem report by Dr. Anjula Thomas, Medical Director and
Consultant Pathologist, Parkway Laboratory Services Limited,
Singapore (PW-35) and her report is Ex.PW-35/A.

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125. After the postmortem, the body of the prosecutrix was returned
to India by an Air India special flight on 30.12.2012. The relevant
airway bills and manifest by which the same were handed over to the
police are proved on record by PW-63, Shri Satish Kumar,
Assistant Manager, Air India as Ex.PW-63/A to Ex.PW-63/C and that
the consignee was the father of the victim who had signed the airway
bill Ex.PW-63/A. He further proved on record the no objection
certificate of the Government of India, the travel documents of the
prosecutrix and permission to export her coffin (Ex.PW-63/D Colly.).
126. An attempt was made by the defence in the cross-examination
to suggest to PW-63 Shri Satish Kumar that the coffin did not contain
the body of the prosecutrix. Suffice it to state that the mother of the
prosecutrix, PW-75 Ashadevi in her testimony clearly states that the
coffin with the dead body of her daughter was handed over to her.
Furthermore, PW-78 Inspector Anil Sharma also proved on record the
various documents including the death report, copy of passport of the
prosecutrix, embalming certificate and letter of permission to
transport the coffin (Ex.PW-63/D-1, Ex.PW-63/D-2, Ex.PW-78/A
and Ex.PW-78/B). As per him, all these documents were seized vide
seizure memo Ex.PW-78/C, which bears his signatures. He further
stated that he returned to IGI Airport in the same flight in which the
coffin containing the dead body of the prosecutrix was transported.
127. From a cumulative reading of the evidence on record, including
the evidence of Indian doctors as well as the Singapore doctors, it
emerges that the prosecution has proved its case that certain organs of
the prosecutrix had become gangrenous and had to be surgically

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removed and analysis of the medical evidence would also clearly
show, beyond any reasonable doubt, that the injuries sustained by the
prosecutrix were extremely severe and would cause death in the
ordinary course of nature, and that death ensued on account of her
injuries and not due to any other cause, as alleged, such as unhygienic
conditions in the hospital.
128. It is also relevant to note at this juncture that the evidence of
the postmortem doctors has been recorded through video
conferencing, for which purpose the service of summons has been
effected through the MLAT process (Mutual Legal Assistance Treaty)
and the note verbale confirming the same has been placed on record.
This has been done in terms of the guidelines laid down by the
Honble Supreme Court in State of Maharashtra v. Praful Desai,
(2003) 4 SCC 601 and the proviso to Section 275(1) Cr.P.C.
129. Adverting next to the injuries suffered by the complainant, the
complainant was treated by PW-51 Dr. Sachin Bajaj and his MLC is
Ex.PW-51/A, which shows wounds over the scalp, left upper leg and
right knee. PW-51 further proves that on 02.01.2013, Inspector Anil
Sharma (PW-78) moved an application (Ex.PW-51/B) for obtaining
an opinion regarding the weapon of offence. The doctor (PW-51) in
his opinion (Ex.PW-51/C), has stated that the injuries on the body of
the complainant could be caused by the said weapons of offence viz.,
iron rods.
130. As regards the medical examination of the accused, suffice it to
note that the sexual potency test of accused Ram Singh was done vide
Ex.PW-2/DA which need not detain us as Ram Singh has since died.

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The sexual potency test of accused Mukesh and collection of samples
was done by PW-3 Dr. Chetan Kumar, who has proved on record
his report Ex.PW-3/A; that of Vinay Sharma was done by PW-6 Dr.
Kulbhushan Prasad, who has proved his report as Ex.PW-6/A; that
of Akshay Thakur, was done by PW-7 Dr. Shashank Pooniya, who
has proved his report as Ex.PW-7/A; and that of accused Pawan was
done by PW-10 Dr. Mohit Gupta, who has proved his report as
Ex.PW-10/A. The aforesaid medical reports clearly prove that all the
accused were capable of performing sexual intercourse. This apart,
PW-7 Dr. Shashank Pooniya proves in his report Ex.PW-7/A injuries
on accused Akshay Thakur, which are suggestive of a struggle; in his
report Ex.PW-7/B that the injuries present on the body of accused
Pawan Kumar were about 2-3 days old and in his report Ex.PW-7/C
that the injuries present on the body of accused Vinay Sharma were
suggestive of a possible struggle.
131. On the basis of the aforesaid evidence on record, the
prosecution contends that the evidence on record corroborates the fact
that the prosecutrix was forcibly subjected to violent sexual assault by
all the accused persons who were capable of performing sexual
intercourse.
Statements of the accused and Defence Evidence
132. Before adverting to the evidence of the defence, a look first at
the stand adopted by the accused persons in their respective
statements recorded under Section 313 of the Code of Criminal
Procedure.

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133. Accused Mukesh in his statement recorded under Section 313
Cr.P.C. has corroborated the case of the prosecution in the following
material particulars:-
(i) In answer to Question No.3, accused Mukesh admitted that he
was driving the bus and that he stopped the bus when the
complainant showed his hand to stop it. He further stated that
it was the 3x2 sitter (seater) bus. One of the boys was sitting
on the back side of the driver on the row of three seats whereas
four boys were sitting in the drivers cabin with him.
(ii) In answer to Question No.4, he stated that accused Pawan and
accused Vinay were sitting on the back side of the drivers seat
whereas accused Akshay was sitting in the drivers cabin while
his brother Ram Singh (since deceased) was asking for
passengers.
(iii) In answer to Question No.5, he admitted as correct that the
windows of the bus Ex.P-1 were having black film on it. He
also admitted that his brother Ram Singh used to drive the bus
daily and on that day since he was drunk heavily so he had
gone to Munirka to bring him to his house and hence he was
driving the bus on that day.
(iv) In answer to Question No.8, he admitted that a quarrel took
place between the complainant and the other accused persons.
(v) In answer to Question No.10, he stated that the other accused
persons put off the lights inside the bus at the flyover of Malai
Mandir and thereafter he did not know what they had done with
the prosecutrix or the complainant.

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(vi) In answer to Question No.11, he stated that at about 12:30 AM
he found torn clothes and other material inside the bus.
Accused Akshay and the JCL had washed the bus which he had
parked in front of Ravi Dass Mandir, Sector 3, Ravi Dass
Camp, R.K. Puram, New Delhi.
(vii) In answer to Question No.17, he stated that the prosecutrix and
the complainant were thrown out by stopping the bus at the
spot near Mahipalpur flyover, though added that he did not
know who had thrown them out of the bus as the light inside
the bus was put off.
(viii) In answer to Question Nos.42 and 43 and on being asked as to
whether he was taking water in cans inside the bus for the
purpose of washing the bus from inside, he replied that he was
only standing outside the bus.
(ix) In answer to Question Nos.55 and 56, he admitted that he was
carrying his mobile phone No.9540967311 on that night and it
was on this phone that accused Ram Singh had called him to
Munirka and he had gone there with his nephew.
(x) In answer to Question No.67, he again admitted that he was
driving the bus when it was boarded by the prosecutrix and her
friend from Munirka while his brother Ram Singh and the JCL,
(name withheld), were calling for passengers by saying
Palam/Dwarka Mod. He further admitted that the windows
of the bus Ex.P-1 had black film; that Ram Singh used to drive
the bus daily and on that day since he was drunk heavily he had
gone to Munirka and was driving the bus and that the other

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 boys along with Ram Singh had already taken the bus from
R.K. Puram.
(xi) In answer to Question Nos.68 and 69, he again admitted that he
was driving the bus at that time.
(xii) In answer to Question No.149, he admitted that he had pointed
out the place from where the victims had boarded the bus Ex.P-
1 and the place where both were thrown out of the moving bus
though stated that he had shown the said places to Inspector
Ram Sahai and S.I. Gajender (PW-55) and not to S.I. Pratibha
Sharma (PW-80).
(xiii) In answer to Question No.200, he stated that he had taken only
one round while driving the bus Ex.P-1. He had taken the bus
from Munirka to Dwarka and took a U-turn underneath a
flyover at Palam and then drove the bus at NH-8 and then they
went to Mahipalpur and from Mahipalpur he drove the bus to
Munirka and then to R.K. Puram. To be noted that he does not
say that the bus did not take two rounds.
(xiv) In answer to Question No.211, he admitted that PW-82 Shri
Ram Adhar had boarded the bus Ex.P-1 on 16.12.2012 prior to
the boarding of the bus Ex.P-1 by the complainant and the
victim and in answer to Question No.213, he admitted that he
was driving the bus at that time. He stated that PW-82 boarded
the bus from Sabzi Mandi at Sector 4 of R.K. Puram on the
main road, but stated that he did not know PW-82 was beaten
by any of the co-accused as he was in the drivers cabin and
driving the bus. His co-accused however brought PW-82 to the

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 front door of the bus Ex.P-1, saying that PW-82 should get
down since he had no money to pay the bus fare.
134. Accused Pawan in his statement under Section 313 Cr.P.C. in
response to Question No.3 and Question No.4 categorically stated
that he was not in the bus Ex.P-1 at the time of the incident. In
answer to Question No.58 pertaining to his mobile phone bearing
No.9711927157, he admitted that the said mobile phone belonged to
him, but stated that on 16.12.2012 he had taken liquor while he was in
his jhuggi, and that in the late evening, while he was waiting outside
his jhuggi, he met accused Vinay who was going to a musical party
and he also accompanied him to the said musical party. There he
again took liquor. Because of taking liquor heavily, he had
convulsion and lay down on a bench; he lost his mobile phone
there. In answer to Question No.61 to the effect that the call detail
records (Ex.PW-23/B) of mobile No.9711927157, registered in his
name, reflect that on 16.12.2012 at 9:32 PM, he had received a call
which shows the movement of the bus from the Naval Officers Mess
to Mehram Nagar, being covered by Cell ID Nos.12602991-
16654591, he reiterated that the said mobile phone belonged to him
and repeated the story narrated by him in answer to Question No.58
with regard to the manner in which he had lost the said mobile phone.
The very same story was again reiterated by him with embellishments
in answer to Question No.219. He stated:
In the evening when I came out of my jhuggi I saw the quarrel
between accused Vinay and accused Ram Singh since
deceased. I returned to my jhuggi since I had taken liquor. After
sometime I again came out of my jhuggi and I saw accused
Vinay with his mother, sister and a neighbour, going to a

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 musical party. I accompanied them. In the musical party I took
more liquor and got intoxicated. I lay down on a bench and my
mobile phone was lost.

135. It may be noted at this juncture that in his supplementary

statement recorded on 16.08.2013 under Section 313 Cr.P.C., accused
Pawan took a complete somersault from the stand taken by him in his
aforesaid statement recorded under Section 313 Cr.P.C. as is evident
from the answer given by him to Question No.9. In direct
contradiction to what he had earlier stated, he stated that he did not
know if he had accompanied accused Vinay to the DDA District
Park on that evening. On the next day, his mother told him that his
father had lifted him from the said park in the night.
136. A look now at the statement of accused Vinay Sharma
recorded under Section 313 Cr.P.C. in which he introduced his
plea of alibi that he was not present in bus Ex.P-1 as he had gone
to attend a musical party at a park in Green Park and made a bid
to explain the struggle marks detected on his person by PW-6 Dr.
Kulbhushan Prasad during his medical examination. On being
asked vide Question No.32 about his medical examination
pursuant to his arrest, the accused introduced a case of fight with
accused Ram Singh on 16.12.2012, at about 8:30 P.M. as Ram
Singh had misbehaved with his sister. He further stated that both
accused Mukesh and Ram Singh had threatened to implicate him
in a false case. It may be noted that this is in direct contradiction
to his answer to Question No.7 wherein he stated that he did not
know accused Thakur or accused Mukesh. Further, as per him,

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after the fight he had gone to attend a party. On being
questioned with regard to his mobile phone vide connection
No.8285947545 in the name of Champa Devi (his mother),
resident of J-105, Ravi Dass Camp (Question No.57), he gave the
following significant answer:-
Though the phone no. 8285947545 belongs to my mother but
its sim was lost prior to 16-12-2012. My friend had concealed
my phone and when he returned it, it was not having sim card
and the memory card.

137. On being queried about the call detail records of the aforesaid
mobile phone (Ex.PW-23/B), which showed that on 16.12.2012 at
9:55 PM, he had made a call which was recorded by the tower at NH-
8 near IGI Airport, Mahipal Pur having Cell ID No.55043, he stated
that he did not know anything about the call as his SIM had been lost.
He had not filed any complaint but had telephoned the customer care
to deactivate the SIM card. It may be noted at this juncture that he
neither chose to summon any witness from the customer care nor
summoned the records to show that he had asked for deactivation of
the SIM card. Subsequently, in answer to Question No. 217, he took
a complete somersault on his statement that the SIM Card was lost
prior to 16.12.2012, as under:-
Q.217: It is in evidence against you Vinay that at the time
of your arrest a Nokia black colour mobile phone bearing IMEI
No. 35413805830824/8 was recovered from your personal
search, seized vide memo Ex.PW60/D, which you later got
released on superdari. What do you have to say?

Ans: It is correct that the said phone belongs to me

but on 16-12-2012 at about 9:30 PM while I was in the party,
one Vipin, a friend of accused Ram Singh, had taken my
phone for making a call and left the party. Later on 17-12-
2012, he returned my above phone on charging Rs.200/-

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 from me but without sim card. The recording of the party,
prior to 9:30 PM, was in the said mobile phone, which I
wanted to show to SI Pratibha Sharma and SI Mandeep but
they did not look into it. It was not recovered in my
personal search. The police had recovered this mobile
phone from my house.

138. Finally, in answer to Question No.221, he gave his version with

regard to the events which took place on 16.12.2012 as under:-
Q.221: Do you have anything else to say?
Ans: On 16-12-2012 I was working in the Sab-fitness
Gym at Srifort Complex, Khel Gaon Marg, New Delhi. I left
the said gym at about 2:30 PM. At about 4:30/5 PM my
friend told me that Ram Singh had teased my sister when
she was going to purchase milk from the market. I along
with my brother then went to find out Ram Singh but he did
not meet us as he was not in the camp. Again at about
8/8:30 PM we again went to meet him and we found Ram
Singh near his bus Ex.P1 near the Gurudwara of our Camp.
He was drunk at that time and he started abusing us.
Thereafter, we had a scuffle and we exchanged fist blows
and blood started oozing out from my face. Even my clothes
were torn. One of his friends, who was with Ram Singh, had
also beaten me. Thereafter I returned to my jhuggi as I
became afraid because one of the brothers of accused Ram
Singh was also involved in a similar matter of rape and
there being a criminal record of his brother. I then left for a
musical party in a park at Green Park, New Delhi. I met
Pawan and that my friend Ram Babu had prepared a
video in that function. My sister and mother had also
accompanied to the said park. My other friends were also
enjoying the said party. At about 11/11:30 PM I returned to
my jhuggi and informed my parents about the scuffle I had
with accused Ram Singh. I am innocent and I have not
committed any crime. I have not done anything. I have
been involved in this case because of the enmity with
accused Ram Singh and his brother.

139. Adverting to the statement of accused Akshay Kumar Singh

@ Thakur, he too introduces his plea of alibi in his statement under
Section 313 Cr.P.C. by stating in answer to Question No.2 that he
had left Delhi on 15.12.2012. Again, in answer to Question No.70,
he states that his name is not Thakur but is Akshay Kumar Singh

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and he was not in Delhi on 16.12.2012, having left Delhi for his
village on 15.12.2012 from New Delhi Railway Station, in
Mahabodhi Express. It is his case that he was arrested from Tandwa
in Bihar. In answer to Question No.122, he states so. The said
question and answer being apposite are reproduced hereunder:-
Q.122: It is in evidence against you that on 21.12.2012 it
was informed that you accused Askhay had come to your house
at village Kamaralangh. A raid was conducted and you were
found present in your house. Your were apprehended,
interrogated and arrested vide arrest memo Ex.PW-53/A. The
information about your arrest was conveyed to your father vide
memo Ex.PW-53/B ; your personal search was conducted vide
memo Ex.PW-53/C and your disclosure Ex.PW53/D was also
recorded. What do you have to say?

Ans: On 21-12-2012 I had come to my house from

the house of my Bua as the police had apprehended my father
and he was made to sit in the police station Tandwa. I reached
P.5 Tandwa at about 8:30 PM of 21-12-2012, where I was
apprehended by the police. The timings of 9:15 PM of 21-12-
2012, of my arrest, as shown in the arrest memo, are wrong.

140. Significantly, in his statement under Section 313 Cr.P.C.,

accused Akshay @ Thakur does not dispute that he was working as a
helper in bus Ex.P-1 owned by Shri Dinesh Yadav. On being
questioned about the same, he concedes:-
It is correct that I was working as a helper in the
bus Ex.P1. I joined Ram Singh, since deceased as helper on 3-
11-2012 but I left the company of Ram Singh on 15-12-2012 at
about 10:30 AM and I left for my village at 11:30 am and I went
to New Delhi Railway Station and I left Delhi in the train at
about 2:30 PM.

141. As regards his medical examination and his refusal to join the
test identification parade, he states in response to Question No.199:-
I do not remember if I was medically examined as I
was beaten up very badly by Delhi Police team and I
was not in senses at that time. I never opted for

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 joining the TIP but I was shown to the complainant in
the police station on the day of my arrival in Delhi,
before the holding of the TIP and that the police had
already taken my photographs and those were also
shown to the complainant before the TIP.

142. Thus, on behalf of three of the accused persons, namely,

accused Akshay Kumar Singh @ Thakur, Pawan Gupta @ Kalu and
Vinay Sharma, the plea of alibi has been pressed into service.
143. In the course of defence evidence, Pawan @ Kalu adduced the
testimonies of DW-1 to DW-4 and to counter the rebuttal evidence
adduced by the prosecution to which we shall presently advert also
produced in the witness-box DW-16. Accused Vinay Sharma in his
defence examined DW-5 to DW-10 and to counter the rebuttal
evidence, examined DW-17. Accused Akshay @ Thakur examined
DW-11 to DW-15 to prove his plea of alibi.
144. Needless to state that the defence plea of alibi taken by the
aforesaid accused persons has been strongly rebutted on behalf of the
prosecution as sham. Mr. Dayan Krishnan, learned Special Public
Prosecutor has sought to establish the falsity of the plea through
rebuttal evidence adduced by him by examining PW-83 Shri Angad
Singh, Deputy Director, Horticulture (Division No.4), DDA, PW-84
Father George Manimala, St. Thomas Church and PW-85 Brother
R.P. Samuel, Secretary, Ebenezer Assembly. Furthermore, it is urged
by him that the settled legal position is that once he is able to prove
the falsity of the plea of alibi set up by the defence, the very fact that
the defence sought to raise a false plea of alibi will go against the
accused persons.

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145. As noticed above, accused Vinay Sharma and accused Pawan
Gupta @ Kalu have stated that they had attended a musical event in
the evening of 16.12.2012 and for the aforesaid purpose had entered
the DDA District Park, Hauz Khas at around 8:30 PM/9 PM and left
late in the night at about 11 PM with their parents and relatives, who
were also in the District Park attending the event organized by a
church; hence there was no possibility that they could have gone on a
robbing and raping spree in bus Ex.P-1 or could have committed the
alleged offences.
146. Accused Akshay Kumar Singh @ Thakur has taken a different
plea of alibi. As per the said accused, he left Delhi for his native
village viz., Village Karmalangh, District Aurangabad, Bihar on
15.12.2012 and hence he could not have been in the bus Ex.P-1 on
16.12.2012 at the time of the commission of the alleged offences.
147. Learned defence counsel passionately argued that the
testimonies of DW-1 to DW-10 proved beyond any iota of doubt
the plea of alibi of accused Vinay Sharma and Pawan @ Kalu.
The clinching evidence was the video footage of the musical
programme recorded by DW-10 Ram Babu, a friend and
neighbour of accused Vinay Sharma. The aforesaid evidence
established the presence of witnesses at the Hauz Khas District
Park in the musical progamme in which accused Vinay played
the tabla. The defence witness who recorded the video clipping
DW-10 Ram Babu had also been examined by the defence. The
musical programme had been organized by the Small Christian

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Unit of the Church (SCC), the objective being to take
Christianity beyond the boundaries of the Christian community.
148. Needless to state Mr. Dayan Krishnan, learned Special Public
Prosecutor relied upon the rebuttal evidence adduced by the
prosecution, that is to say, the evidence of Deputy Director,
Horticulture (PW-83), Father George Manimala of St. Thomas
Church (PW-84) and Brother R.P. Samuel, Secretary of Ebenezer
Assembly (PW-85) to contend that there was irrefutable evidence on
record to show that musical programmes and other such functions
were not permitted to be held by the authorities concerned in the
District Park, Hauz Khas, the park being situate in a forest area
protected by the provisions of the Forest Act. This apart, the Parish
Priests of both the churches in the vicinity of the park had testified
that no such musical programmes were ever organized by their
churches in the said park. PW-84 Father George Manimala further
testified that the precincts of St. Thomas Church were large enough to
house 3,000 to 4,000 persons and there was, therefore, no necessity
for the said church to organize any musical programme outside of the
church. PW-85 Brother R.P. Samuel stated that the church to which
he belonged was a protestant church which in any case did not
organize musical programmes.
149. As already indicated above, supplementary statements of the
accused persons under Section 313 Cr.P.C. were recorded, after the
prosecution had adduced the aforesaid rebuttal evidence, in the course
of which accused Vinay and accused Pawan @ Kalu chose to lead
further evidence by examining DW-16 and DW-17. Suffice it to state

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that there is not a whisper in the testimonies of DW-16 and DW-17
with regard to documents Ex.PW-84/A, Ex.PW-84/B, Ex.PW-85/A
and Ex.PW-85/B, which conclusively show that no public functions
were allowed to be held within the precincts of the District Park,
Hauz Khas, which was a protected area within the meaning of the
Forest Act; and in any event the Parish Priests of the churches in the
vicinity in their testimonies categorically stated on oath that no such
function was held by their respective church in the District Park on
the evening of 16.12.2012. But more about the pleas of alibi later on.
Contentions of defence counsel and our findings thereon

150. At the threshold, a plea was raised by Mr. A.P. Singh on

behalf of the convict Vinay Sharma that Vinay Sharma was a
juvenile on the date of the incident. Before examining this plea,
we note that no such plea was raised at the time arguments were
addressed before the learned Sessions Judge, presumably for the
reason that the issue already stood settled and decided by the
order dated 10.01.2013 passed by the Metropolitan Magistrate
(South), whereby the learned M.M. took on record the Age
Verification Report of the accused Vinay Sharma, based on the
certified copies of the admission register of the first attended
school and the admission form of the first class of M.C. Primary
Co-Ed. School, Sector-3, R.K. Puram, New Delhi, in addition to
the statements of the parents of the accused wherein they had
confirmed the age of their wards. It may be noted that the learned
M.M. in her order has clearly recorded the fact that the parents of
Vinay Sharma and Pawan Kumar had confirmed the age of their

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respective wards as set out in the Report which included the
written statement of the parents of both the accused persons.
Learned M.M. further noted that the counsel for accused
Vinay Sharma and Pawan Kumar along with the said accused
had not raised any objection to the Age Verification Report
filed by the I.O. and the accused did not dispute their age to be
above 18 years at the time of the commission of the offence.
151. From the record it further emerges that the issue was once
again raised before the learned Sessions Court, which passed a
detailed order dated 24.01.2013 rejecting the prayer made by
accused Vinay in an application filed on his behalf under Section
7-A of the Juvenile Justice Act for his further medical
examination. The Court in the said order noted that all the
documents showed the date of birth of the accused to be
01.03.1994, which made him 18 years and more than 9 months
old at the time of the incident. Since the genuineness of the
documents was not disputed by the accused and what the accused
stated was that his parents may have given his wrong date of birth
in school, and furthermore since the Investigating Officer had
recorded the statements of Smt. Saroj Sharma, Principal of M.C.
Primary Co-Ed. School, Sector-3, R.K. Puram, New Delhi and of
Shri Hari Ram Sharma, father of accused Vinay Sharma, wherein
they had categorically stated that the date of birth of Vinay
Sharma was 01.03.1994, the learned Sessions Court held that the
question of obtaining medical opinion with regard to the bone age
of the accused did not arise. For arriving at the aforesaid

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conclusions, the learned Sessions Court relied upon the judgment
of the Honble Supreme Court in Shah Nawaz vs. State of Uttar
Pradesh and Another, (2011) 13 SCC 751, the relevant extract
whereof reads as under:-
The documents furnished above clearly show that the date of
birth of the appellant had been noted as 18-6-1989. Rule 12 of
the Rules categorically envisages that the medical opinion from
the Medical Board should be sought only when the
matriculation certificate or school certificate or any birth
certificate issued by a corporation or by any panchayat or
municipality is not available. We are of the view that though the
Board has correctly accepted the entry relating to the date of
birth in the marksheet and school certificate, the Additional
Sessions Judge and the High Court committed a grave error in
determining the age of the appellant ignoring the date of birth
mentioned in those documents which is illegal, erroneous and
contrary to the Rules.

It was further observed that :

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

We are also satisfied that Rule 12 of the Rules which was

brought in pursuance of the Act describes four categories of
evidence which have been provided in which preference has
been given to school certificate over the medical report.

152. The learned Sessions Court was also guided by the

observations made by the Supreme Court in Ashwani Kumar
Saxena vs. State of M.P., (2012) 9 SCC 750, wherein the Honble
Supreme Court in the context of the procedure to be followed for
enquiring into the claim of juvenility under Section 7-A of the
Juvenile Justice Care and Protection Act, 2000 read with Rule 12
of the 2007 Rules held as under:-
29. The procedure laid down for inquiring into the specific
matters under the Code naturally cannot be applied in inquiring
into other matters like the claim of juvenility under Section 7A
read with Rule 12 of the 2007 Rules.

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 30. Consequently, the procedure to be followed under the J.J.
Act in conducting an inquiry is the procedure laid down in that
statute itself i.e. Rule 12 of the 2007 Rules.

31. We also remind all Courts/Juvenile Justice Board and the

Committees functioning under the Act that a duty is cast on
them to seek evidence by obtaining the certificate etc.
mentioned in Rules 12 (3) (a) (i) to (iii). The courts in such
situations act as a parens patriae because they have a kind of
guardianship over minors who from their legal disability stand
in need of protection.

32. Age determination inquiry contemplated under section 7A

of the Act read with Rule 12 of the 2007 Rules enables the
court to seek evidence and in that process, the court can
obtain the matriculation or equivalent certificates, if available.
Only in the absence of any matriculation or equivalent
certificates, the court needs to obtain the date of birth
certificate from the school first attended other than a play
school. Only in the absence of matriculation or equivalent
certificate or the date of birth certificate from the school first
attended, the court needs to obtain the birth certificate given by
a corporation or a municipal authority or a panchayat (not an
affidavit but certificates or documents). The question of
obtaining medical opinion from a duly constituted Medical
Board arises only if the above mentioned documents are
unavailable. In case exact assessment of the age cannot be
done, then the court, for reasons to be recorded, may, if
considered necessary, give the benefit to the child or juvenile
by considering his or her age on lower side within the margin of
one year.

33. Once the court, following the above mentioned procedures,

passes an order; that order shall be the conclusive proof of the
age as regards such child or juvenile in conflict with law. It has
been made clear in sub-rule (5) or Rule 12 that no further
inquiry shall be conducted by the court or the Board after
examining and obtaining the certificate or any other
documentary proof after referring to sub-rule (3) of the Rule 12.
Further, Section 49 of the J.J. Act also draws a presumption of
the age of the juvenility on its determination.

34. .There may be situations where the entry made in the

matriculation or equivalent certificates, date of birth certificate
from the school first attended and even the birth certificate
given by a corporation or a municipal authority or a panchayat
may not be correct. But court, Juvenile Justice Board or a
committee functioning under the J.J. Act is not expected to
conduct such a roving enquiry and to go behind those

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 certificates to examine the correctness of those
documents, kept during the normal course of business. Only in
cases where those documents or certificates are found to be
fabricated or manipulated, the court, the Juvenile Justice Board
or the committee need to go for medical report for age
determination.

153. In the light of the above, we do not find any flaw in the
reasoning of the learned M.M. as reflected in her order dated
10.01.2013 or in the order of the learned Sessions Court dated
24.01.2013. Even otherwise, both the aforesaid orders remain
unchallenged on record and the plea of juvenility raised on behalf
of accused Vinay Sharma, therefore, appears to us to be a last
ditch effort made on his behalf to seek refuge under the Juvenile
Justice Act in order to escape the criminal consequences of the
offences committed by him.
154. Mr. A.P. Singh on behalf of accused Akshay Kumar next
contended that the trial court did not summon crucial defence
witnesses, and in particular mentioned Raju Paswan (a watchman
of Village and PO Tandwa) and Abhay Kumar (brother of Akshay
Kumar) as the significant defence witnesses who were not
summoned. He further contended that crucial material pertaining
to the plea of alibi raised by accused Akshay Kumar, such as
CCTV footage of the New Delhi Railway Station on 15.12.12 and
in particular of Platform No.9 from where Mahabodhi Express
departed on the said date, and the ticket details of reservation of
seats of Mahabodhi Express on 15.12.2012 in the name of Abhay
Kumar Singh were not summoned from DRT of New Delhi
Railway Station to prove the departure of the Appellant on the

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said date. We find from the record that the aforesaid contention
of Mr. A.P. Singh is specious, to say the least. The learned trial
court in its detailed order dated 18.07.2013 has elaborately dealt
with the issue of defence witnesses and the material aforesaid.
155. Insofar as Raju Paswan, watchman of Village and Post
Office Tandwa is concerned, the said witness was held to be not
essential as the place of arrest of accused Akshay Kumar was not
in dispute and as a matter of fact subsequently accused Akshay
Kumar himself stated in his statement recorded under Section 313
Cr.P.C. (in answer to Question No.122) that on 21.12.2012, he
reached P.S. Tandwa and was arrested from there. Insofar as the
ticket details of Abhay Kumar are concerned, as noted by the
learned trial court in its order dated 18.07.2013, the said ticket
details were not summoned by the trial court for the reason that it
was not even the case of accused Akshay Kumar that he travelled
on a ticket in his own name, and the case as set forth by him was
that he had travelled on the reserved ticket of his brother Abhay
Kumar. As regards the CCTV footage of 15.12.2012 of New
Delhi Railway Station, as noted by the trial court in its order dated
19.7.2013, the CCTV footage though summoned by the learned
trial court, could not be produced as the same had not been
preserved by the concerned control room and a certificate to this
effect was placed on the record of the trial court by the ld. Spl. PP.
156. Faced with the aforesaid situation, Mr. A.P. Singh attempted
to argue that the prosecution had failed to produce Dr. Naresh
Trehan as a witness and this rendered doubtful the medical report

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Ex.PW-64/DA regarding the reasons for shifting the prosecutrix to
Singapore for medical treatment.
157. We find from a perusal of the order dated 18.07.2013
(supra) that the learned trial court in its said order specifically
noted the fact that Dr. Naresh Trehan need not be summoned since
the purpose of his visit to Singapore had already been proved on
record by the statement of Dr. P.K. Verma (PW-52). This apart, it
is relevant to note that PW-64 Dr. B.D. Athani categorically stated
in his cross-examination that the only role played by Dr. Naresh
Trehan was in respect of the provision of air ambulance for the
transportation of the prosecutrix to Singapore. The relevant
extract of the cross-examination of the said witness is as under:-
The final decision to send the victim abroad was taken
after the visit of Dr Trehan. VOL:'The decision was already
taken by the team of the treating doctors and since the
involvement of Dr. Trehan was required because of the
facility of Air Ambulance, which they could arrange.
After consulting Dr. Trehan, the entire medical team
treating the prosecutrix took a final decision to shift the
patient abroad and then all the doctors informed me about
this decision.

158. Mr. A.P. Singh next submitted that the use of rods as
weapons of offence was not mentioned in the MLC of the
prosecutrix (Ex.PW-49/B) and furthermore the weapons used are
not even mentioned in the complainants MLC (Ex.PW-51/A) and
this fact is completely destructive of the fabric of the prosecution
version.
159. As already noted by us, the prosecutrix after being assaulted
with lethal weapons/iron rods and gang raped was thrown out of

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the moving bus on a cold winter night of 16.12.2012 and in such a
condition, she has given a description of the incident, as much as
she could, keeping in mind her extremely critical condition, before
her first treating doctor, namely, Dr. Rashmi Ahuja (PW-49). It is
apposite that PW-49 Dr Ahuja, in her cross-examination, when
questioned as to why the MLC did not bear the signatures of the
prosecutrix but a thumb impression was affixed thereon gave the
following graphic description of the physical condition of the
prosecutrix at the relevant time:-
When I had first seen the prosecutrix, she was cold and
clammy i.e. whitish (due to vasoconstriction). I gave her IV
line and warm saline. The purpose was to stabilize her
pulse and BP. The pulse was weak and even her blood
pressure was low. . Since the
prosecutrix was shivering and was cold so instead of taking her
signature we asked the prosecutrix to give her thumb
impression for consent.

160. In such circumstances, in our view, when she was suffering

from extreme trauma and her physical condition was extremely
critical, it would be unreasonable to expect the prosecutrix to
narrate intricate details of the incident to the treating doctor.
Insofar as the complainant is concerned, the contention that the
weapons used are not mentioned in the complainants MLC is
again wholly irrelevant. In any event, in the first statement
recorded of the complainant (PW-1) by S.I. Subhash (PW-74) at
about 3:45 AM on 17.12.2012 (PW-1/A), on the basis of which
the First Information Report was registered, there is a clear
mention of the use of iron rods as weapons of offence and thus by

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no stretch it can be said that iron rods were subsequently
introduced in the prosecution version of the incident.
161. At the risk of repetition, it deserves to be noted that the rods
Ex.P-49/1 and Ex.P-49/2 were recovered at the instance of
accused Ram Singh (since deceased). PW-80 SI Pratibha Sharma,
the Investigating Officer of this case has deposed that accused
Ram Singh had led her to the bus (Ex.P-1) and had taken out two
iron rods from the shelf of the drivers cabin. The rods were
having blood stains. The said rods were sealed with the seal of
P.S. and after being deposited with the malkhana were sent for
forensic examination. PW-45 Dr. B.K. Mohapatra, who prepared
the DNA report testified to the fact that the DNA profile
developed from the blood stains from both the iron rods was
found consistent with the DNA profile of the prosecutrix. These
rods were also mentioned in the two dying declarations of the
prosecutrix recorded by the S.D.M. (PW-27/A) and the M.M.
(PW-30/A) respectively. Further, the concerned doctors of SJ
Hospital opined that the recto-vaginal injury of the prosecutrix
could be caused by the rods Ex.P-49/1 and Ex.P-49/2 vide their
medical opinion Ex.PW-49/G. Hence, the user of rods in the
crime stands established to the hilt. The contention that the
victims do not refer to the use of iron rods in their MLCs thus
pales into insignificance. The subsequent statements of the
victims establishes the user of the rods Ex.P-49/1 and Ex.P-49/2,
which also stands corroborated by the medical and scientific
evidence on record.

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162. With reference to the first statement of the complainant
(Ex.PW-1/A) on the basis of which First Information Report was
recorded, Mr. A.P. Singh submitted that as per this statement
made by the complainant there were four plus two persons in the
bus, in addition to the driver, and this is clearly contradictory to
the case of the prosecution. We find that this contention is ex
facie wrong as a reading of the document clearly shows that after
the word char the numerical 4 is mentioned in brackets. This is
also clear from the fact that the words used are Driver ke saath
char ladke bethe the, meaning thereby that there were four
boys in all, including the driver. Further, subsequently in the
same document (Ex.PW-1/A), the complainant states that when
the bus was ascending the flyover to the Airport, three boys came
from the cabin and asked him in foul language Where are you
going with the girl at night and they started swearing at him in
foul language. One of those boys slapped him and he (the
complainant) too slapped him. Then all the three started beating
him. Just then, the other two boys also came there. All of them
started beating and hitting him jointly. This portion of the
statement of the complainant clearly shows that apart from the
driver there were five other boys present in the bus as per the
complainants version in document Ex.PW-1/A. Even otherwise,
the complainants statement (Ex.PW-1/A) recorded at about 3:45
AM on 17.12.2012 has to be read in conjunction with his
statements made immediately thereafter on the same day, i.e., at
7:30 AM and at 12:00 Noon (Ex.PW-80/D-1 and Ex.PW-80/D-3),

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all of which were recorded in close proximity with each other. In
his second supplementary statement Ex.PW-80/D-3, the
complainant clearly stated that in the cabin of the bus in addition
to the driver, three boys were seated and outside the cabin one boy
was seated on the side of the bus having two seats and one boy
was seated on the side of the bus having three seats, that is, in all
6 boys. This statement was recorded at 12:30 P.M. on 17.12.2012
and Ram Singh, who was the first of the accused persons to be
arrested, was arrested at 4:15 PM on the same day.
163. Mr. A.P. Singh next contended that the evidence of the
prosecution is replete with innumerable glaring contradictions,
inconsistencies, discrepancies, deficiencies, drawbacks and
infirmities, which are not minor discrepancies on the fringe. The
depositions of the prosecution witnesses were neither cogent nor
coherent and do not inspire confidence. Still the learned trial
court has relied upon their statements. The reliability of the
witnesses, who have made improvements and have been
confronted with their previous statements, has not been adjudged
by the trial court keeping in mind the basic principles of
appreciation of evidence applicable to a criminal trial.
164. Reliance was placed by Mr. Singh in this context upon the
judgments of Maharaj Singh vs. State of U.P. (1991) 28 ACC 506,
Padigi Narasimha vs. State, 1996 Criminal Law Journal (AP) 2997
and Zamir Ahmed vs. State, 1996 Criminal Law Journal (Delhi)
2354.

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165. In Maharaj Singhs case (supra), the Allahabad High Court
held that by virtue of the explanation to Section 162(2) Cr.P.C., an
omission to state a fact or circumstance in the statement referred to in
sub-section (1) may amount to contradiction if the same appears to be
significant and otherwise relevant having regard to the context in
which such omission occurs and whether any omission amounts to a
contradiction in the particular context shall be a question of fact.
166. In Padigi Narasimha (supra) too, reference was made to the
proviso to Section 162(1) and the explanation added to the Section
and it was held that it was clear therefrom that both the omission and
contradiction have to be proved either by the prosecution or by the
accused, as the case may be, depending upon the circumstances in
each case. The Court, however, entered the following caveat:-
22. When the accused or the defence did not take any interest
in establishing such contradictions or omissions in accordance
with law, he is not entitled to take such contentions in this Court
that there has been improvement in the case of the
prosecution, due to omissions or contradictions.

167. In Zamir Ahmed (supra), a Division Bench of this Court made

the following observations which we note are of no avail to the
Appellants in the instant case:-
(14) The second question which arises for adjudication in the
instant case is as to whether the contradictions pointed out by
the learned counsel for the appellant are so material as to set at
naught the entire case of the prosecution? Our reply to the
above query is an emphatic no. It would be a hard nut to crack
to find out a case which is bereft of embellishment,
exaggeration, contradictions and inconsistencies. The said
things are natural. Such contradictions and inconsistencies are
bound to creep in with the passage of time. If the witnesses are
not tutored they would come out with a natural and
spontaneous version on their own. The two persons on being
asked to reproduce a particular incident which they have

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 witnessed with their own eyes would be unable to do so in like
manner. Each one of them will narrate the same in his own
words, according to his own perception and in proportion to his
intelligence power of observation.

(15) The above view which we are taking finds support from the
opinion of the Hon'ble Supreme Court. It was opined in Boya
Ganganna v. State of Andhra Pradesh, AIR 1976 SC 1541 :
(1976 Cri LJ 1158) .... Minor contradictions are bound to
appear when ignorant and illiterate women are giving evidence.
Even in case of trained and educated persons, memory
sometimes plays false and this would be much more so in case
of ignorant and rustic women. It must also be remembered that
the evidence given by a witness would very much depend upon
his power of observation and it is possible that some aspects of
an incident may be observed by one witness while they may not
be witnessed by another though both are present at the scene
of offence.

168. Mr. Dayan Krishnan, learned Special Public Prosecutor, on the

other hand, relied upon the judgments of the Honble Supreme Court
in Jaswant Singh vs. State of Haryana, (2000) 4 SCC 484, Subodh
Nath vs. State of Tripura, (2013) 4 SCC 122 and Pudhu Raja vs.
State, (2012) 11 SCC 196. In Jaswant Singh (supra), the Supreme
Court while opining that the omissions were not contradictions in the
said case made the following pertinent observations:- (SCC, page
501)
47. Section 161(2) of the Code requires the person making
the statements to answer truly all questions relating to such
case, put to him by such officer..... It would, therefore, depend
on the questions put by the police officer. It is true that a certain
statement may now be used under Section 162 to contradict
such witness in the manner provided by Section 145 of the
Indian Evidence Act, 1872. Previously, the law was as
enunciated in Tahsildar Singh v. State of Uttar Pradesh [AIR
1959 SC 1012] as:
(i) omissions, unless by necessary implication be
deemed to be part of the statement, cannot be used to
contradict the statement made in the witness-box;

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 48. Now the explanation to Section 162 provides that an
omission to state a fact in the statement may amount to a
contradiction. However, the explanation makes it clear that the
omission must be a significant one and otherwise relevant
having regard to the context in which such omission occurs and
whether any omission amounts to a contradiction in the
particular context shall be a question of fact.

49. Reading Section 161(2) of the Criminal Procedure Code

with the explanation to Section 162, an omission in order to be
significant must depend upon whether the specific question, the
answer to which is omitted, was asked of the witness. In this
case the Investigating Officer, PW 13 was not asked whether he
had put questions to Gurdeep Kaur asking for details of the
injuries inflicted or of the persons who had caused the injuries.

169. In the case Subodh Nath (supra) a question arose whether an

eye-witness testimony can be discarded only on the basis of some
discrepancies when it is corroborated in material particulars.
Answering the question in the negative, the Supreme Court opined:-
(SCC, page 128 to 129)
16. Once we find that the eye witness account of PW 13 is
corroborated by material particulars and is reliable, we cannot
discard his evidence only on the ground that there are some
discrepancies in the evidence of PW 1, PW 2, PW 13 and PW
19. As has been held by this Court in State of Rajasthan v.
Kalki (1981) 2 SCC 752, in the deposition of witnesses there
are always normal discrepancies due to normal errors of
observation, loss of memory, mental disposition of the
witnesses and the like. Unless, therefore, the discrepancies are
material discrepancies so as to create a reasonable doubt
about the credibility of the witnesses, the Court will not discard
the evidence of the witnesses...

170. In Pudhu Raja (supra), the Supreme Court made the

following pertinent observations:- (SCC, page 202)
18. While appreciating the evidence, the court has to take
into consideration whether the contradictions/ omissions were of
such magnitude so as to materially affect the trial. Minor
contradictions, inconsistencies, embellishments or
improvements in relation to trivial matters, which do not affect
the core of the case of the prosecution, must not be made a

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 ground for rejection of evidence in its entirety. The trial court,
after going through the entire evidence available, must form an
opinion about the credibility of the witnesses, and the appellate
court in the normal course of action, would not be justified in
reviewing the same again, without providing justifiable reasons
for the same. [Vide State vs. Saravanan, (2008) 17 SCC 587]

19. Where the omission(s) amount to a contradiction, creating

a serious doubt regarding the truthfulness of a witness, and the
other witness also makes material improvements before the
court, in order to make the evidence acceptable, it would not be
safe to rely upon such evidence...

171. In a recent judgment rendered by the Supreme Court in Essa

@ Anjum Abdul Razak Memon vs. The State of Maharashtra, JT
2013 (6) SC 1, the Honble Supreme Court dwelt at length on the
aspect of improvements, discrepancies and contradictions which do
not touch the core of the prosecution case as follows:- (JT, page 160
to 162)
276. It is contended on behalf of the appellant that evidence of
the aforesaid eye witnesses is unreliable, untrustworthy and
without any basis in order to reach to the conclusion of any guilt
to justify the detention of the appellant any further in custody. It
is further submitted that substantial improvements have been
made by these witnesses during their evidence. We are unable
to accept the same. All the eye-witnesses to the said incident
have consistently deposed that the appellant came out of the
van which came to Fishermens Colony at Mahim. They
identified the appellant before the Court during dock
proceedings as well as in the test identification parade. They
further identified the Maruti Van bearing number MP-D-13-385
as the vehicle in which the appellant along with other co-
accused came to the scene of the crime. The contradictions
pointed out by the counsel on behalf of the appellant are minor
contradictions and does not go to the root of the matter. With
regard to the same, the following observations of this Court in
State of Uttar Pradesh v. Krishna Master, [JT 2010 (8) SC
240 : (2010) 12 SCC 324] are relevant.

15. Before appreciating evidence of the witnesses

examined in the case, it would be instructive to refer to
the criteria for appreciation of oral evidence. While
appreciating the evidence of a witness, the approach

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 must be whether the evidence of the witness read as a
whole appears to have a ring of truth. Once that
impression is found, it is undoubtedly necessary for the
court to scrutinise the evidence more particularly
keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the
general tenor of the evidence and whether the earlier
evaluation of the evidence is shaken as to render it
unworthy of belief. Minor discrepancies on trivial
matters not touching the core of the case,
hypertechnical approach by taking sentences torn out
of context here or there from the evidence, attaching
importance to some technical error committed by the
investigating officer not going to the root of the matter
would not ordinarily permit rejection of the evidence as
a whole.

16. If the court before whom the witness gives

evidence had the opportunity to form the opinion about
the general tenor of the evidence given by the witness,
the appellate court which had not this benefit will have
to attach due weight to the appreciation of evidence by
the trial court and unless the reasons are weighty and
formidable, it would not be proper for the appellate
court to reject the evidence on the ground of variations
or infirmities in the matter of trivial details. Minor
omissions in the police statements are never
considered to be fatal. The statements given by the
witnesses before the police are meant to be brief
statements and could not take place of evidence in the
court. Small/Trivial omissions would not justify a finding
by court that the witnesses concerned are liars. The
prosecution evidence may suffer from inconsistencies
here and discrepancies there, but that is a shortcoming
from which no criminal case is free. The main thing to
be seen is whether those inconsistencies go to the root
of the matter or pertain to insignificant aspects thereof.
In the former case, the defence may be justified in
seeking advantage of incongruities obtaining in the
evidence. In the latter, however, no such benefit may
be available to it.

17. In the deposition of witnesses, there are always

normal discrepancies, howsoever honest and truthful
they may be. These discrepancies are due to normal
errors of observation, normal errors of memory due to
lapse of time, due to mental disposition, shock and
horror at the time of occurrence and threat to the life. It

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 is not unoften that improvements in earlier version are
made at the trial in order to give a boost to the
prosecution case, albeit foolishly. Therefore, it is the
duty of the court to separate falsehood from the truth.
In sifting the evidence, the court has to attempt to
separate the chaff from the grains in every case and
this attempt cannot be abandoned on the ground that
the case is baffling unless the evidence is really so
confusing or conflicting that the process cannot
reasonably be carried out. In the light of these
principles, this Court will have to determine whether
the evidence of eyewitnesses examined in this case
proves the prosecution case.

277. In State of H.P. v. Lekh Raj, [JT 1999 (9) SC 43 : (2000)

1 SCC 247, it was observed:

7. In support of the impugned judgment the learned

counsel appearing for the respondents vainly
attempted to point out some discrepancies in the
statement of the prosecutrix and other witnesses for
discrediting the prosecution version. Discrepancy has
to be distinguished from contradiction. Whereas
contradiction in the statement of the witness is fatal for
the case, minor discrepancy or variance in evidence
will not make the prosecution's case doubtful. The
normal course of the human conduct would be that
while narrating a particular incident there may occur
minor discrepancies, such discrepancies in law may
render credential to the depositions. Parrot-like
statements are disfavoured by the courts. In order to
ascertain as to whether the discrepancy pointed out
was minor or not or the same amounted to
contradiction, regard is required to be had to the
circumstances of the case by keeping in view the
social status of the witnesses and environment in
which such witness was making the statement. This
Court in Ousu Varghese v. State of Kerala held that
minor variations in the accounts of the witnesses are
often the hallmark of the truth of their testimony. In
Jagdish v. State of M.P. this Court held that when the
discrepancies were comparatively of a minor character
and did not go to the root of the prosecution story, they
need not be given undue importance. Mere congruity
or consistency is not the sole test of truth in the
depositions. This Court again in State of Rajasthan v.
Kalki held that in the depositions of witnesses there
are always normal discrepancies, however, honest and
truthful they may be. Such discrepancies are due to

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 normal errors of observation, normal errors of memory
due to lapse of time, due to mental disposition such as
shock and horror at the time of occurrence, and the
like. Material discrepancies are those which are not
normal and not expected of a normal person.

8. Referring to and relying upon the earlier

judgments of this Court in State of U.P. v. M.K.
Anthony, Tahsildar Singh v. State of U.P.,
Appabhai v. State of Gujarat and Rammi v. State of
M.P.,this Court in a recent case Leela Ram v. State of
Haryana held:

There are bound to be some discrepancies

between the narrations of different witnesses
when they speak on details, and unless the
contradictions are of a material dimension, the
same should not be used to jettison the
evidence in its entirety. Incidentally,
corroboration of evidence with mathematical
niceties cannot be expected in criminal cases.
Minor embellishment, there may be, but
variations by reason therefor should not render
the evidence of eyewitnesses unbelievable.
Trivial discrepancies ought not to obliterate an
otherwise acceptable evidence....

The court shall have to bear in mind that

different witnesses react differently under
different situations: whereas some become
speechless, some start wailing while some
others run away from the scene and yet there
are some who may come forward with courage,
conviction and belief that the wrong should be
remedied. As a matter of fact it depends upon
individuals and individuals. There cannot be
any set pattern or uniform rule of human
reaction and to discard a piece of evidence on
the ground of his reaction not falling within a set
pattern is unproductive and a pedantic
exercise.

278. In Waman v. State of Maharashtra, (2011) 7 SCC 295),

it was observed:

35. It is clear that not all the contradictions have to be

thrown out from consideration but only those which go
to the root of the matter are to be avoided or ignored.
In the case on hand, as observed earlier, merely on the

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 basis of minor contradictions about the use and nature
of weapons and injuries, their statements cannot be
ignored in toto.

To sum up, there are bound to be some discrepancies

between the narrations of different witnesses and unless the
contradictions are of a material dimension, the same should not
be used to disbelieve the evidence in its entirety. In view of the
above, we are of the view that the contradictions pointed out by
the counsel on behalf of the appellant are minor contradictions
and does not render the evidence unbelievable.

172. In State of U.P. v. Naresh and Others, (2011) 4 SCC 324, the
Supreme Court after considering a large number of its earlier
judgments held: (SCC, page 334)
30. In all criminal cases, normal discrepancies are bound to
occur in the depositions of witnesses due to normal errors of
observation, namely, errors of memory due to lapse of time or
due to mental disposition such as shock and horror at the time
of occurrence. Where the omissions amount to a contradiction,
creating a serious doubt about the truthfulness of the witness
and other witnesses also make material improvement while
deposing in the court, such evidence cannot be safe to rely
upon. However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters which do not
affect the core of the prosecution case, should not be made a
ground on which the evidence can be rejected in its entirety.
The court has to form its opinion about the credibility of the
witness and record a finding as to whether his deposition
inspires confidence.

9. Exaggerations per se do not render the

evidence brittle. But it can be one of the factors to
test credibility of the prosecution version, when the
entire evidence is put in a crucible for being tested
on the touchstone of credibility.

Therefore, mere marginal variations in the statements of a

witness cannot be dubbed as improvements as the same may
be elaborations of the statement made by the witness earlier.
The omissions which amount to contradictions in material
particulars i.e. go to the root of the case/materially affect the
trial or core of the prosecution's case, render the testimony of
the witness liable to be discredited. [Vide State vs. Saravanan,
Arumugam vs. State, Mahendra Pratap Singh vs. State of

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 U.P. and Sunil Kumar Sambhudayal Gupta (Dr.) vs. State of
Maharashtra].

173. Thus, the law is well settled that in case there are minor
contradictions in the depositions of the witnesses the same are bound
to be ignored. In case however the contradictions are so material that
the same go to the root of the case, materially affect the trial or core
of the prosecution case, the court has to form its opinion about the
credibility of the witnesses and find out as to whether their
depositions inspire confidence. In the instant case, learned defence
counsel has failed to demonstrate from the evidence of the eye-
witness/complainant and the evidence of other prosecution witnesses
such discrepancies, omissions, improvements and the like as would
enable us to reject their testimonies after testing the same on the anvil
of the law laid down by the Apex Court.
174. Mr. A.P. Singh next contended that the whole of the case of
the prosecution deserved to be discarded as no public witnesses
were joined in the investigation by the investigating agency either
at the time of the arrest of the accused persons or at the time of the
recoveries effected from them. Insofar as the absence of public
witnesses at the time of arrest is concerned, it may be noted that
the only requirement in law at the time of arrest is for the arresting
officer to comply with the provisions of Section 41B of the Code
of Criminal Procedure. In the present case, suffice it to note that
the provisions of Section 41B have been complied with in that at
the time of the arrest of Ram Singh and Mukesh vide arrest
memos Ex.PW-74/D and Ex.PW-58/B respectively, the relatives

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informed were Suresh (brother) and Raju (brother). At the time of
arrest of accused Pawan vide arrest memo Ex.PW-60/A, the
relatives informed were Hira Lal Gupta (father) and Raju
(neighbour). Arrest memo (Ex.PW-60/B) in respect of accused
Vinay shows that Hari Ram Sharma (father) and Raju (neighbour)
were informed while arrest memo Ex.PW-53/A of accused Akshay
shows that Saryu Singh (father) was informed.
175. In context of the contention with regard to non-joining of
public witnesses at the time of recovery, reference may usefully
be made to the judgment of the Supreme Court in State, (Govt. of
NCT of Delhi) vs. Sunil, (2001) 1 SCC 652. In the said case, two
sex meniacs libidinously ravaged a female child of four like wild
beasts and finished her off. The recovery of blood stained knickers of
the deceased on the basis of the statement made by the accused before
the police was evidenced by the seizure memo prepared by the
Investigating Officer which was sought to be assailed by the defence
on the ground of absence of independent witnesses when the
Investigating Officer recorded the statement of the accused. The
Supreme Court brushing aside the said argument held that the
circumstance relating to the recovery of the blood stained knickers of
the ravished child was a formidable one and the mere absence of an
independent witness when the Investigating Officer recorded the
statement of the accused and the knickers were recovered pursuant to
the said statement was not a sufficient ground to discard the evidence
under Section 27 of the Evidence Act. The relevant extract of the
judgment reads as under:- (SCC, page 661)

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 19. In this context we may point out that there is no
requirement either under Section 27 of the Evidence Act or
under Section 161 of the Code of Criminal Procedure, to
obtain signature of independent witnesses on the record in
which statement of an accused is written. The legal
obligation to call independent and respectable inhabitants
of the locality to attend and witness the exercise made by
the police is cast on the police officer when searches are
made under Chapter VII of the Code. Section 100(5) of the
Code requires that such search shall be made in their presence
and a list of all things seized in the course of such search and of
the places in which they are respectively found, shall be
prepared by such officer or other person and signed by such
witnesses. It must be remembered that a search is made to
find out a thing or document about which the searching officer
has no prior idea as to where the thing or document is kept. He
prowls for it either on reasonable suspicion or on some
guesswork that it could possibly be ferreted out in such
prowling. It is a stark reality that during searches the team
which conducts the search would have to meddle with lots of
other articles and documents also and in such process many
such articles or documents are likely to be displaced or even
strewn helter-skelter. The legislative idea in insisting on such
searches to be made in the presence of two independent
inhabitants of the locality is to ensure the safety of all such
articles meddled with and to protect the rights of the persons
entitled thereto. But recovery of an object pursuant to the
information supplied by an accused in custody is different
from the searching endeavour envisaged in Chapter VII of
the Code. This Court has indicated the difference between the
two processes in the Transport Commr., A.P., Hyderabad v. S.
Sardar Ali [(1983) 4 SCC 245 : 1983 SCC (Cri) 827 : AIR 1983
SC 1225] . Following observations of Chinnappa Reddy, J. can
be used to support the said legal proposition: (SCC p. 254, para
8)

Section 100 of the Criminal Procedure Code to

which reference was made by the counsel deals
with searches and not seizures. In the very nature
of things when property is seized and not
recovered during a search, it is not possible to
comply with the provisions of sub-sections (4) and
(5) of Section 100 of the Criminal Procedure Code.
In the case of a seizure under the Motor Vehicles
Act, there is no provision for preparing a list of the
things seized in the course of the seizure for the
obvious reason that all those things are seized not
separately but as part of the vehicle itself.

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 20. Hence it is a fallacious impression that when recovery
is effected pursuant to any statement made by the accused
the document prepared by the investigating officer
contemporaneous with such recovery must necessarily be
attested by the independent witnesses. Of course, if any
such statement leads to recovery of any article it is open to the
investigating officer to take the signature of any person present
at that time, on the document prepared for such recovery. But if
no witness was present or if no person had agreed to affix his
signature on the document, it is difficult to lay down, as a
proposition of law, that the document so prepared by the police
officer must be treated as tainted and the recovery evidence
unreliable. The court has to consider the evidence of the
investigating officer who deposed to the fact of recovery based
on the statement elicited from the accused on its own worth.

21. We feel that it is an archaic notion that actions of the police

officer should be approached with initial distrust. We are aware
that such a notion was lavishly entertained during the British
period and policemen also knew about it. Its hangover persisted
during post-independent years but it is time now to start placing
at least initial trust on the actions and the documents made by
the police. At any rate, the court cannot start with the
presumption that the police records are untrustworthy. As a
proposition of law the presumption should be the other way
around.

176. In Dr. Sunil Clifford Daniel vs. State of Punjab, (2012) 11

SCC 205, the Supreme Court relying upon its earlier judgment in the
case of Sunil (supra) reiterated the law laid down by it in the said
judgment. In the said case, the Appellant-accused had made a
disclosure statement, on the basis of which a panchnama was
prepared and recovery panchnamas were also made. The evidence
on record revealed that the same were duly signed by two police
officials, and one independent panch witness, who was admittedly
not examined. Therefore, a question arose regarding the effect of
non-examination of the said panch witness, and also the sanctity
of the evidence, in respect of recovery made only by two police

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officials. Referring to the law laid down in the case of Sunil
(supra), the Supreme Court opined that the non-examination of
the panch witness would not render the discovery incredible. It
was observed that no question having been put to the Investigating
Officer in his cross-examination, as to why the prosecution had
withheld the said witness and the I.O. being the only competent
person to answer the query, the non-examination of the said panch
witness was inconsequential and sanctity of evidence in respect of
recovery made only by two police officials was not affected
thereby.
177. In Ashok Kumar Chaudhary and Others vs. State of Bihar,
(2008) 12 SCC 173 dealing with the contention of the Appellants that
the incident having taken place at a public place in the evening,
prosecution ought to have examined some independent witnesses and
having failed to do so, the evidence of the related witness should be
discarded, the Supreme Court observed that:- (SCC, Page 176)
7. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.
Though it is true that the incident having taken place near the
market around 6 p.m. on 17-7-1988, the prosecution should
have attempted to secure public witnesses who had witnessed
the incident, but at the same time one cannot lose sight of the
ground realities that the members of the public are generally
insensitive and reluctant to come forward to report and depose
about the crime even though it is committed in their presence.
In our opinion, even otherwise it will be erroneous to lay down
as a rule of universal application that non-examination of a
public witness by itself gives rise to an adverse inference
against the prosecution or that the testimony of a relative of the
victim, which is otherwise creditworthy, cannot be relied upon
unless corroborated by public witnesses.

178. In Pramod Kumar vs. State (Government of NCT of Delhi),

(2013) 6 SCC 588, the Supreme Court once again repelled the

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submission that the whole case of the prosecution should be thrown
overboard because of non-examination of independent witnesses and
reliance on the official witnesses cannot be accepted. It was held
(SCC, Page 593):-
13. This Court, after referring to State of U.P. v. Anil Singh
[1988 Supp SCC 686 : 1989 SCC (Cri) 48] , State (Govt. of
NCT of Delhi) v. Sunil [(2001) 1 SCC 652 : 2001 SCC (Cri)
248] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229 :
(2007) 2 SCC (Cri) 626] has laid down recently in Kashmiri Lal
v. State of Haryana [(2013) 6 SCC 595 : 2013 AIR SCW 3102]
that there is no absolute command of law that the police officers
cannot be cited as witnesses and their testimony should always
be treated with suspicion. Ordinarily, the public at large show
their disinclination to come forward to become witnesses. If the
testimony of the police officer is found to be reliable and
trustworthy, the court can definitely act upon the same.

179. Next, it was strongly contended by Mr. A.P. Singh that a

shadow of doubt was cast on the prosecution version with regard to
the seizure of the bus as the secret information received by the I.O.
with regard to the location of the bus has not been disclosed by the
prosecution, though the case of the prosecution is that the bus was
seized pursuant to secret information received by the Investigating
Officer from Ravi Dass Camp, Sector-3, R.K. Puram. Suffice it to
note in this regard that Indian Evidence Act, 1872 provides that no
police officer shall be compelled to disclose secret information
received by him/her. (See Sections 124 and 125 Evidence Act, 1872).
180. Mr. A.P. Singh then contended that the story of the
investigating agency that ash was recovered by the investigators from
near the place where the bus was seized and the said recovery led to
the seizure of the ash and the partly burnt clothes, was an entirely
concocted one. We are afraid the aforesaid contention of the learned

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defence counsel is contrary to the record in that the seizure memo
(Ex.PW-74/M) clearly shows the recovery of partly burnt clothes
(kaprey ke tookrey). Further, in the CFSL report the relevant parcel
Exhibit 13 is described to contain partly burnt cloth pieces along with
ash. Thus, the seizure memo Ex.PW-74/M and the CFSL report
(Ex.PW-76/E) completely negate this contention of the defence as
well.
181. In the context of refusal of the accused-Appellant Vinay to
participate in TIP, Mr. Singh relied upon the following judgments in
support of his contention that refusal of the Appellant Vinay Sharma
to participate in the Test Identification Parade was not sufficient to
inculpate him:-
(i) Mohd. Abdul Hafeez vs. State of Andhra Pradesh,
(1983) 1 SCC 143.
(ii) State vs. Maqsood Ahmed @ Ashraf Abbu Mujahid,
ILR (2010) 1 Del 614 : (2009) 163 DLT 39.
(iii) Hukam Singh vs. State (NCT of Delhi), 2011 (3)
Crimes 278 (Del.).
(iv) Prahlad Singh vs. State of Madhya Pradesh, (1997) 8
SCC 515.
(v) State of Madras vs. Hussaini, 1987 (1) Crimes (MP)
4112.
(vi) Sadhoo alias Sadhuram vs. State of M.P., 1997 Crl. L.J.
2809.
182. A careful perusal of the law laid down in the aforesaid
judgments shows that what in effect has been held by the Courts from

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time to time is that identification of the accused during Test
Identification Proceedings is a relevant evidence lending assurance to
a Court of an accused being correctly identified by a witness and
refusal to participate in the same without any justifiable cause is an
incriminating piece of evidence, but a conviction in a criminal trial
cannot be sustained merely on an accused refusing to participate in
the Test Identification Proceedings even on an unjustifiable ground.
Nor can conviction be sustained where the accused is identified in
Court after a long delay in cases where no Test Identification Parade
has been held and there is nothing to connect the accused with the
crime. Test Identification Proceedings are also rendered meaningless
where the accused is shown to the witness prior to the conduct of the
Test Identification Proceedings.

183. We pause here to note the legal position in respect of

identification by way of TIP and dock identification as enunciated by
the Supreme Court in the case of Dana Yadav v. State of Bihar
(2002) 7 SCC 295 where after an elaborate discussion on the subject,
the Supreme Court summed up its conclusions as under:- (SCC, page
315)
38. In view of the law analysed above, we conclude thus

(a) If an accused is well known to the prosecution witnesses

from before

(b) In cases where according to the prosecution the accused is

known to the prosecution witnesses from before, but the said
fact is denied by him.

(c) Evidence of identification of an accused in court by a witness

is substantive evidence whereas that of identification in test

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 identification parade is, though a primary evidence but not
substantive one, and the same can be used only to corroborate
identification of the accused by a witness in court.

(d) Identification parades are held during the course of

investigation ordinarily at the instance of investigating agencies
and should be held with reasonable dispatch for the purpose of
enabling the witnesses to identify either the properties which
are the subject-matter of alleged offence or the accused
persons involved in the offence so as to provide it with materials
to assure itself if the investigation is proceeding on right lines
and the persons whom it suspects to have committed the
offence were the real culprits.

(e) Failure to hold test identification parade does not make the
evidence of identification in court inadmissible, rather the same
is very much admissible in law, but ordinarily identification of an
accused by a witness for the first time in court should not form
the basis of conviction, the same being from its very nature
inherently of a weak character unless it is corroborated by his
previous identification in the test identification parade or any
other evidence. The previous identification in the test
identification parade is a check valve to the evidence of
identification in court of an accused by a witness and the same
is a rule of prudence and not law.

(f) In exceptional circumstances only, as discussed above,

evidence of identification for the first time in court, without the
same being corroborated by previous identification in the test
identification parade or any other evidence, can form the basis
of conviction

(g) Ordinarily, if an accused is not named in the first information

report, his identification by witnesses in court, should not be
relied upon, especially when they did not disclose name of the
accused before the police, but to this general rule there may be
exceptions as enumerated above.

184. In a recent judgment rendered in Sheo Shankar Singh vs. State

of Jharkhand, (2011) 3 SCC 654, their Lordships have lucidly
reviewed the legal position with regard to identification as under
(SCC, Page 671):-
46. It is fairly well settled that identification of the accused in
the court by the witness constitutes the substantive evidence in
a case although any such identification for the first time at the
trial may more often than not appear to be evidence of a weak

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 character. That being so a test identification parade is
conducted with a view to strengthening the trustworthiness of
the evidence. Such a TIP then provides corroboration to the
witness in the court who claims to identify the accused persons
otherwise unknown to him. Test identification parades,
therefore, remain in the realm of investigation.

47. The Code of Criminal Procedure does not oblige the

investigating agency to necessarily hold a test identification
parade nor is there any provision under which the accused may
claim a right to the holding of a test identification parade. The
failure of the investigating agency to hold a test identification
parade does not, in that view, have the effect of weakening the
evidence of identification in the court. As to what should be the
weight attached to such an identification is a matter which the
court will determine in the peculiar facts and circumstances of
each case. In appropriate cases the court may accept the
evidence of identification in the court even without insisting on
corroboration.

48. The decisions of this Court on the subject are legion. It is,
therefore, unnecessary to refer to all such decisions. We remain
content with a reference to the following observations made by
this Court in Malkhansingh v. State of M.P. [(2003) 5 SCC 746 :
2003 SCC (Cri) 1247] : (SCC pp. 751-52, para 7)

7. It is trite to say that the substantive evidence is the

evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position in
law is well settled by a catena of decisions of this Court.
The facts, which establish the identity of the accused
persons, are relevant under Section 9 of the Evidence
Act. As a general rule, the substantive evidence of a
witness is the statement made in court. The evidence of
mere identification of the accused person at the trial for
the first time is from its very nature inherently of a weak
character. The purpose of a prior test identification,
therefore, is to test and strengthen the trustworthiness of
that evidence. It is accordingly considered a safe rule of
prudence to generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of the
accused who are strangers to them, in the form of earlier
identification proceedings. This rule of prudence,
however, is subject to exceptions, when, for example, the
court is impressed by a particular witness on whose
testimony it can safely rely, without such or other
corroboration. The identification parades belong to the
stage of investigation, and there is no provision in the

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 Code of Criminal Procedure which obliges the
investigating agency to hold, or confers a right upon the
accused to claim a test identification parade. They do not
constitute substantive evidence and these parades are
essentially governed by Section 162 of the Code of
Criminal Procedure. Failure to hold a test identification
parade would not make inadmissible the evidence of
identification in court. The weight to be attached to such
identification should be a matter for the courts of fact. In
appropriate cases it may accept the evidence of
identification even without insisting on corroboration. [See
Kanta Prashad v. Delhi Admn., AIR 1958 SC 350,
Vaikuntam Chandrappa v. State of A.P., AIR 1960 SC
1340, Budhsen v. State of U.P., (1970) 2 SCC 128 and
Rameshwar Singh v. State of J and K., (1971) 2 SCC
715).

49. We may also refer to the decision of this Court in Pramod

Mandal v. State of Bihar [(2004) 13 SCC 150 : 2005 SCC (Cri)
75] where this Court observed: (SCC p. 158, para 20)
20. It is neither possible nor prudent to lay down any
invariable rule as to the period within which a test
identification parade must be held, or the number of
witnesses who must correctly identify the accused, to
sustain his conviction. These matters must be left to the
courts of fact to decide in the facts and circumstances of
each case. If a rule is laid down prescribing a period
within which the test identification parade must be held, it
would only benefit the professional criminals in whose
cases the arrests are delayed as the police have no clear
clue about their identity, they being persons unknown to
the victims. They, therefore, have only to avoid their arrest
for the prescribed period to avoid conviction. Similarly,
there may be offences which by their very nature may be
witnessed by a single witness, such as rape. The offender
may be unknown to the victim and the case depends
solely on the identification by the victim, who is otherwise
found to be truthful and reliable. What justification can be
pleaded to contend that such cases must necessarily
result in acquittal because of there being only one
identifying witness? Prudence therefore demands that
these matters must be left to the wisdom of the courts of
fact which must consider all aspects of the matter in the
light of the evidence on record before pronouncing upon
the acceptability or rejection of such identification.

50. The decision of this Court in Malkhansingh case [(2003) 5

SCC 746 : 2003 SCC (Cri) 1247] and Aqeel Ahmad v. State of

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 U.P. [(2008) 16 SCC 372 : (2010) 4 SCC (Cri) 11] adopt a
similar line of reasoning.

185. The aforesaid aspect has also been perspicaciously dealt with in
Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1, wherein the
Honble Mr. Justice Sathashivam (as his Lordship then was) while
writing the judgment, after noting that the reason given by accused
Manu Sharma for his refusal to participate in TIP, being that he had
been shown to the witnesses, was false, opined: (SCC, page 93)
In the absence of any defence, refusal of TIP on this
ground is totally unjustified and an adverse inference
ought to be drawn in this regard.

186. The Court further observed as under:- (SCC, page 99)

258. The learned Solicitor General submitted that, even
otherwise, an adverse inference ought to be drawn
against the appellants for their refusal to join the TIP. This
view has found favour time and again by this Court. It is
pertinent to note that it is dock identification which is
substantive piece of evidence. Therefore even where no
TIP is conducted no prejudice can be caused to the case
of the prosecution.

259. In Mullagiri Vajram v. State of A.P it was held that

though the accused was seen by the witness in custody,
any infirmity in TIP will not affect the outcome of the case,
since the depositions of the witnesses in court were
reliable and could sustain a conviction. The photo
identification and TIP are only aides in the investigation
and does not form substantive evidence. The substantive
evidence is the evidence in the court on oath.

187. In view of the aforesaid, we conclude this aspect of the case by

noting that insofar as accused Ram Singh, accused Vinay and accused
Pawan are concerned, the said accused persons refused to participate
in TIP and this circumstance can by no means have any adverse
bearing on the case of the prosecution. Of necessity, an adverse

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inference is required to be drawn against them for their refusal
without justifiable cause to participate in the TIP.
188. On the aspect of recovery of blood stained clothes and the
weapon of offence being the iron rods, Mr. Singh placed reliance
upon the judgment of this Court in Raj Kumar @ Raju vs. State,
(2010) 169 DLT 517 (DB) to contend that the said recoveries were in
the nature of weak evidence. We extract hereinbelow the portion of
the judgment in the said case pertaining to recoveries:- (DLT, page
520)
15. As regards the recovery of counterfoils of bank deposit
slips from the appellant and the co-accused it would be of
importance to note that the diary Ex.P-9 was admittedly
recovered from the pocket of the deceased and there is a
possibility that the said counterfoils may have been recovered
from the diary and later on planted. Way back in the year 1943,
in the decision AIR 1943 Null 5, Shera vs. Emperor the Court
had cautioned of such kind of ordinary articles being planted.

16. As regards the recovery of the hammer Ex.P-3 and the

leather bag Ex.P-4 from near the scene of the crime, it assumes
importance that when the dead body was detected in the
evening of 29.7.2004 not only the investigating officer but even
the crime team had accessed the place and we find it strange
that nobody could detect the said hammer or the leather bag
nearby.

17. Now, as the case set up by the prosecution, the appellant

runs a tea stall and probably acts as a postal agent, thus his
being possessed with Rs.4,500/- is not a fact wherefrom eye-
brows had to be raised; it be noted that with reference to the
number on the currency notes nobody has been able to link the
same to the deceased.

18. The recoveries of blood-stained clothes at the instance of

the appellant have to be viewed in light of various decisions of
the Supreme Court where such kind of recoveries have been
held to be very weak evidence.

19. In the decision reported as AIR 1963 SC 1113 Prabhu vs.

State of U.P. recovery of a blood-stained shirt and a dhoti as
also an axe on which human blood was detected was held to be

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 extremely weak evidence. Similarly, in the decision reported as
(1977) 4 SCC 600(1) : AIR 1977 SC 1753 Narsinbhai Haribhai
Prajapati etc. vs. Chhatrasinh & Ors. the recovery of a blood-
stained shirt and a dhoti as also the weapon of offence a
dhariya were held to be weak evidence. In the decision reported
as 1993 Supp.(1) SCC 208 = AIR 1994 SC 110 Surjit Singh &
Anr. vs. State of Punjab the recovery of a watch stated to be
that of deceased and a dagger stained with blood of the same
group as that of the deceased were held to be weak evidence.
As late as in the decision reported as JT 2008 (1) SC 191 Mani
vs. State of Tamil Nadu recoveries of blood stained clothes and
weapon of offence stained with blood were held to be weak
recoveries.

20. We may only add that the part of the disclosure statement of
the accused that the clothes which he was wearing at the time
when he committed the crime got stained with blood of the
deceased and his getting the clothes recovered attracts Section
27 of the Evidence Act limited to the extent that the accused got
recovered blood stained clothes. Independent evidence has to
be led to prove that the said clothes were being worn by the
accused at the time when the crime was committed and said
fact cannot be proved through his disclosure statement.

189. We are constrained to observe that the above case turns on its
own peculiar facts in that as observed in the judgment itself two
issues arose. Firstly, whether the recoveries inspired confidence and
secondly the effect thereof. It was a case of circumstantial evidence
in which the star witness was the brother of the deceased, who
deposed that the deceased had left the house at a particular time to
visit the Appellant and he had to purchase some tickets from the
Appellant, who knew the co-accused Abhimanyu. Subsequently, the
dead body of the deceased was reported lying at a spot adjoining the
railway track. Appellant Raj Kumar @ Raju and co-accused
Abhimanyu were apprehended the next morning. The prosecution
alleged that the recoveries aforesaid had been effected from the
accused persons. It was in these circumstances where there was no

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other evidence to connect the accused with the crime that the Court
held that independent evidence was required to be led to prove that
the blood stained clothes were worn by the accused at the time when
the crime was committed and the said fact cannot be proved through
his disclosure statement.
190. In contradistinction to the above case, we note that in the
present case the recovered clothes have been independently proved to
be the clothes worn by the accused at the relevant time through DNA
analysis, and recovered articles have been duly identified in test
identification proceedings by the complainant which have not been
challenged before the learned trial court. It is a settled position of law
that the portion of a statement made by accused which relates to a
specific discovery in consequence of the information received from
the accused may be proved. The Honble Supreme Court in State
(NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 in this regard
held as under:- (SCC, page 699)
119. We have noticed above that the confessions made to a
police officer and a confession made by any person while he or
she is in police custody cannot be proved against that person
accused of an offence. Of course, a confession made in the
immediate presence of a Magistrate can be proved against him.
So also Section 162 CrPC bars the reception of any statements
made to a police officer in the course of an investigation as
evidence against the accused person at any enquiry or trial
except to the extent that such statements can be made use of
by the accused to contradict the witnesses. Such confessions
are excluded for the reason that there is a grave risk of their
statements being involuntary and false. Section 27, which
unusually starts with a proviso, lifts the ban against the
admissibility of the confession/statement made to the police to a
limited extent by allowing proof of information of a specified
nature furnished by the accused in police custody. In that sense
Section 27 is considered to be an exception to the rules
embodied in Sections 25 and 26 (vide Udai Bhan v. State of

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 U.P. [1962 Supp (2) SCR 830 : AIR 1962 SC 1116 : (1962) 2
Cri LJ 251]).

191. The Supreme Court further analysed the prerequisites to prove

such a portion of the disclosure as under: (SCC, page 700)

121. The first requisite condition for utilising Section 27 in

support of the prosecution case is that the investigating police
officer should depose that he discovered a fact in consequence
of the information received from an accused person in police
custody. Thus, there must be a discovery of fact not within the
knowledge of police officer as a consequence of information
received. Of course, it is axiomatic that the information or
disclosure should be free from any element of compulsion. The
next component of Section 27 relates to the nature and extent
of information that can be proved. It is only so much of the
information as relates distinctly to the fact thereby
discovered that can be proved and nothing more. It is explicitly
clarified in the section that there is no taboo against receiving
such information in evidence merely because it amounts to a
confession. At the same time, the last clause makes it clear that
it is not the confessional part that is admissible but it is only
such information or part of it, which relates distinctly to the fact
discovered by means of the information furnished. Thus, the
information conveyed in the statement to the police ought to be
dissected if necessary so as to admit only the information of the
nature mentioned in the section. The rationale behind this
provision is that, if a fact is actually discovered in consequence
of the information supplied, it affords some guarantee that the
information is true and can therefore be safely allowed to be
admitted in evidence as an incriminating factor against the
accused.

192. It is pertinent to note that the Supreme Court in the aforesaid

judgment observed that discovery under Section 27 of the Evidence
Act encompasses different kinds of discoveries, including but not
limited to: (a) Knowledge of the place of discovery. (b) Knowledge of
the actual deposit of the article and (c) Knowledge about the article
itself. It was also observed that in order to become a disclosure under
Section 27, pointing out by the accused is not necessary.

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193. Navjot Sandhu (supra) has also re-iterated the test in
Pulukuri Kottaya v. Emperor AIR 1947 Privy Council 67 that the
discovery of the fact cannot be equated to the object produced or
found. It is more than that. The discovery of the fact arises by reason
of the fact that the information given by the accused exhibited the
knowledge or the mental awareness of the informant as to its
existence at a particular place. It is often described as confirmation by
subsequent event.
194. In Ismail v. Emperor, AIR 1946 Sind 43, Davis C. J. went so
far as to say that where as a result of information given by the
accused another co-accused is found by the police, the statement by
the accused to the police as to the whereabouts of the co-accused is
admissible under Section 27 as evidence against the accused. To
quote:
The finding of Karimdino by the police as a fact as the result of
Ismails confession discovered makes the statement of Ismail
as to the whereabouts of Karimdino admissible under S. 27,
Evidence Act, as evidence against Ismail and cannot altogether
be ignored In the result, therefore, the
convictions and sentences passed upon Ismail and Karimdino
are confirmed and their appeals dismissed.

195. Applying the aforesaid law to the instant case, Ram Singhs
disclosure, which was first in point of time and which mentioned the
names of all the accused persons and gave the whereabouts of
accused Pawan and Vinay Sharma could well be regarded to be
admissible under Section 27 Evidence Act. This has been noted by us
keeping in mind Section 10 of the Evidence Act, though we are

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conscious of the fact that the case against Ram Singh has since
abated.
196. Mr. Singh also relied upon the following judgments in support
of his contention that a confession made by a co-accused cannot be
the sole basis for conviction; it can only be used in support of other
evidence:-
(i) Sidharth & Others vs. State of Bihar, 2005 (4) Crimes 135
(SC) = (2005) 12 SCC 545.
(ii) Bijoy Kumar Mohapatra and others vs. The State, (1982)
Criminal Law Journal (Orissa) 2162.
(iii) Haricharan Kurmi vs. State of Bihar, AIR 1964 SC 1184
= (1964) 2 Criminal Law Journal 344.
(iv) Madaiah vs. State by Yelander Police, 1992 Criminal Law
Journal (Kant) 502.
(v) Lal Khan vs. Emperor, AIR 1948 Lahore 43 = 1949
Criminal Law Journal 977.
(vi) Mottai Thevar Vs. State, AIR 1952 Madras 586 = 1952
Criminal Law Journal 1210 = 1951 MWN (Crl) 274
197. We are not inclined to dwell upon these judgments for the
reason that the ld. Spl. PP concedes there is no confession as such in
the present case and the judgments in this respect are, therefore, of no
relevance.
198. On the aspect of appreciation of evidence, Mr. Singh relied
upon the judgments in Dalbir Singh and others vs. State of Punjab,
AIR 1987 SC 1328 = (1987) 3 SCC 360; Poolakkal Kunchu vs.
State, 1986 (2) Crimes (Kerala) 225; State vs. Musa, 1991 (3)

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Criminal Law Journal (Orissa) 2168; Palanisamy Gounder vs.
State, 1993 (3) Crimes (Madras) 107; State of Rajasthan vs. Chathu
Ram, (1998) Criminal Law Journal (Rajasthan) 1528; Dudh Nath
Pandey vs. State of Uttar Pradesh, AIR 1981 SC 911 = (1981) 2
SCC 166 and Shyamraj vs. State, 1995 Criminal Law Journal
(Calcutta) 3363.
199. In Dalbir Singh (supra), it was held that no hard and fast rule
could be laid down on the question of appreciation of evidence. It
was observed:
It is after all a question of fact and each case has to be decided
on the facts as they stand in that particular case.

200. In Poolakkal Kunchu (supra), a Division Bench of the Kerala

High Court observed that in appreciating the evidence the Court will
have to be definitely guided by human probabilities, even though
exceptions could be made in cases where clinching evidence
deviating from human probabilities is available. It was laid down:-
(Crimes, page 229)
In appreciating the evidence of this sort courts will be jealous in
finding guilt bearing in mind the cardinal rule of criminal
prudence that even at the risk of many possible victims
escaping one innocent man should not be sent to the gallows.
A case may create sensation or arouse public concern. A
general feeling among the public that in all probability a man
might have committed a heinous crime may give room for public
dissatisfaction when the case ends in acquittal. But such
considerations cannot influence the court in deciding the guilt
which could only be on the basis of acceptable legal evidence
based on legal testimony. A moral conviction that in all
probability the accused might have murdered his wife by third
degree methods cannot be allowed to influence the judicial
mind of the court.

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201. In State vs. Musa (supra), it was reiterated that in the absence
of evidence, benefit of doubt lies in favour of the appellant in the
following manner:- (Crl.L.J., page 169)
9. In a prosecution of an accused for an offence Under Section
376, IPC totality of circumstances are to be considered
distinguishing grain from the chaff. If the remaining materials
which are grain lead to an inference that accused committed the
offence, he is to be convicted. While assessing evidence it is to
be remembered that our criminal jurisprudence puts the onus
on the prosecution to prove beyond reasonable doubt that
accused has committed the offence since several accused
persons may be acquitted but one innocent person should not
be convicted. Apart from punishment imposed, in our society
conviction attaches indelible stigma and a person is looked
down upon. Even arrest on account of allegations though not
punishment has some retarding effect on the person so far as
his place in society. Hence, onerous duty is cast on the
Presiding Officer of the court to be scrutinising (sic.) for
convicting an accused. More heinous the offence, graver is the
stigma.

202. In the cases of Palanisamy Gounder vs. State and State of

Rajasthan vs. Chathu Ram (supra), what was laid down was that
while appreciating the evidence of a witness, who has partially
spoken truth and partially spoken untruth, Courts are to be on guard.
In Chathu Ram (supra), it was further observed:-
It is well established that the maxim "falsus in uno falsus in
omnibus" does not apply in our country. The evidence of a
witness cannot be discarded on the ground that some portion of
the statement of that witness is false. It is the duty of the Court
to find out which portion of the statement of the witness is true
and which portion of the statement of the witness is false.

203. In Dudh Nath Pandey vs. State of UP (supra), the Honble

Supreme Court held that if witnesses on whose evidence the life of an
accused hangs in the balance, do not choose to reveal the whole truth,
the Court, while dealing with the question of sentence, has to step in

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interstitially and take into account all reasonable possibilities, having
regard to the normal and natural course of human affairs. It was
further held that (SCC, Page 173):-
Defence witnesses are entitled to equal treatment with those of
the prosecution. And, Courts ought to overcome their traditional,
instinctive disbelief in defence witnesses. Quite often, they tell
lies but so do the prosecution witnesses.

204. In Shyamraj vs. State (supra), Calcutta High Court relying

upon Dudh Nath Pandey(supra) reiterated that the Court while
considering the probability of the defence version ought to overcome
their traditional instinctive disbelief in defence witnesses and that the
defence witnesses were entitled to equal treatment with those of the
prosecution.
205. Insofar as the law with regard to appreciation of evidence is
concerned, we are of the view that the rules that a Court would apply
while appreciating the evidence of the prosecution as well as of the
defence, are well settled and need no adumberation. Certainly, no
hard and fast rule can be laid down with regard to the appreciation of
evidence and most certainly the Court has a bounden duty to sift the
grain from the chaff, the truth from the falsehood, and in doing so the
Court must be guided by human probabilities, to make exceptions
only in cases where there is clinching evidence deviating from human
probabilities. There is also no manner of doubt that the prosecution
must prove its case beyond any reasonable doubt and that the
witnesses of the defence must be treated at par with the witnesses of
the prosecution. Thus far, there is no difficulty, but it is at the same

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time undesirable that a defect here and improbability there wash away
the evidence of a witness who is otherwise credible.
206. Mr. Singh also sought to urge that the accused are entitled to
reap the benefit of doubt and for the aforesaid purpose pressed into
service the decisions in Surendra Rai vs. State of Bihar, 2013
Criminal Law Journal 1847 (Patna) and Jayanta Kalai and Others
vs. State of Tripura, 2013 Criminal Law Journal 1864 (Guwahati).
We do not find the aforesaid decisions to be of any avail to the
defence. In the first case, there were major contradictions in the
evidence of the informant who was the victim of the crime and the
Court accordingly came to the conclusion that her evidence could not
be relied upon safely without corroboration. In the latter case also,
the evidence did not bring home the guilt of four of the five accused,
apart from the fact that two out of the three witnesses who had
identified the accused in the Test Identification Parade did not
identify three of the accused in the dock and the dock identification of
the fourth accused was made by the third witness after three years,
who also stated that he had visited the jail several times to see the
miscreants. Such identification, it was held, could not be made the
basis of returning the finding of conviction qua the four accused
persons.
207. Mr. A.P. Singh next sought to urge that the plea of alibi taken
by the Appellant Akshay Kumar stood fully established through the
testimonies of DW-11 to DW-15 and in this context relied upon the
judgment of the Supreme Court rendered in Ashish Batham vs. State
of MP, (2002) 7 SCC 317. In the said case, the accused took a plea

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that on the date of the incident he was not present at the place of the
occurrence and had instead gone to another city along with his sister.
For the aforesaid purpose, he examined his sister as a defence witness
with whom he had travelled and a tenant in the house where he had
lived. The prosecution, on the other hand, withheld vital evidence
with regard to the taking of finger prints and foot prints, the result of
lie detector test to which the Appellant was subjected, the materials to
evidence the actual journey of the Appellant with his sister in its
possession and the materials gathered and conclusions of the CID
investigation in the very case, claiming privilege for its production.
The Court below, however, chose to summarily reject the defence of
the Appellant faulting him for not examining the railway officials,
ignoring the fact that though a police official of the rank of an
Inspector had collected the materials relating to his reservation and
travel, he was not examined by the prosecution. In such
circumstances, the Supreme Court opined that different and
contradictory standards of appreciation of evidence had been adopted
to the detriment of the accused resulting in grave miscarriage; and
that in the absence of any clinching material brought on record by the
prosecution to show that the Appellant did not, as a matter of fact,
travel as per the reservations made by him along with his sister, it was
not permissible for the Courts below merely to disbelieve the defence
witnesses for no valid reason and to surmise most unjustifiably that
the Appellant was clever enough to prepare the material for the
defence of alibi, which, according to them, remained unsubstantiated.
It was observed:-

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 8. Realities or truth apart, the fundamental and basic
presumption in the administration of criminal law and justice
delivery system is the innocence of the alleged accused and till
the charges are proved beyond reasonable doubt on the basis
of clear, cogent, credible or unimpeachable evidence, the
question of indicting or punishing an accused does not arise,
merely carried away by heinous nature of the crime or the
gruesome manner in which it was found to have been
committed. Mere suspicion, however, strong or probable it may
be is no effective substitute for the legal proof required to
substantiate the charge of commission of a crime and graver
the charge is greater should be the standard of proof required.
Courts dealing with criminal cases at least should constantly
remember that there is a long mental distance between may be
true and must be true and this basic and golden rule only
helps to maintain the vital distinction between conjectures and
sure conclusions to be arrived at on the touch stone of a
dispassionate judicial scrutiny based upon a complete and
comprehensive appreciation of all features of the case as well
as quality and credibility of the evidence brought on record.

208. The aforesaid dicta was laid down by the Supreme Court in the
peculiar facts of the case. We do not see how the aforesaid decision
comes to the rescue of the Appellant Akshay Kumar, for, the said
decision was rendered by the Supreme Court having regard to the fact
that the Courts below had rejected the defence evidence without any
justifiable cause and had completely ignored the fact that the
prosecution had suppressed material evidence in its possession to the
detriment of the accused.
209. We hasten to add that the case of the appellant Akshay Kumar
is on an altogether different footing. He, no doubt, has taken the plea
that he was not in Delhi at the time of the commission of the offence
but was in his native village at Karmalangh (Aurangabad), but his
case is that he travelled on the reserved ticket of his brother Abhay
Kumar Singh with his sister-in-law (wife of Abhay Kumar Singh),
whereas in the case of Ashish Batham (supra), relied upon by Mr.

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Singh, the Appellant had travelled on a ticket reserved in his own
name with his sister. Significantly also, there is no credible evidence
to establish that Abhay Kumar Singh did not travel on the ticket
reserved in his name or the circumstances in which he was prevented
from doing so.
210. We also note that it was incumbent upon the defence to have
proved the plea of alibi with absolute certainty so as to exclude the
possibility of the presence of the accused at the place of occurrence.
Time and again, it has been reiterated by the Courts that strict proof is
required for establishing the plea of alibi. It is also well settled that if
the plea of alibi taken by the accused is rejected as being without any
substance, the Court is entitled to draw adverse inference against the
accused.
211. Significantly also, with regard to the plea of alibi of the
Appellant Vinay Sharma learned defence counsel was not able to pin
point the church which organized the musical programme. All that
was urged by counsel was that a Small Scale Christian Unit had
organized the programme. Not a single member of the said Small
Scale Christian Unit was examined to state that he belonged to the
same Small Scale Christian Unit which had organized the programme
and in fact the record does not show who were the organizers of the
programme. The defence instead has chosen to examine the close
relatives and friends of the accused persons to establish the plea of
alibi. It is settled law that the evidence of related and interested
witnesses has to be scrutinized with care and caution and on thus
scrutinizing the same we find material contradictions in the evidence

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of the defence witnesses who profess to have attended the musical
programme in which the Appellant Vinay Sharma claims he played
the tabla.
212. In Binay Kumar Singh Vs. State of Bihar (1997) 1 SCC 283,
the Supreme Court described the plea of alibi as a rule of evidence
and lucidly discussed the law with regard to the said plea as under:-
(SCC, Page 293)
22. We must bear in mind that an alibi is not an exception
(special or general) envisaged in the Indian Penal Code or any
other law. It is only a rule of evidence recognised in Section 11
of the Evidence Act that facts which are inconsistent with the
fact in issue are relevant. Illustration (a) given under the
provision is worth reproducing in this context:

The question is whether A committed a crime at Calcutta

on a certain date; the fact that on that date, A was at
Lahore is relevant.

23. The Latin word alibi means elsewhere and that word is
used for convenience when an accused takes recourse to a
defence line that when the occurrence took place he was so far
away from the place of occurrence that it is extremely
improbable that he would have participated in the crime. It is a
basic law that in a criminal case, in which the accused is
alleged to have inflicted physical injury to another person, the
burden is on the prosecution to prove that the accused was
present at the scene and has participated in the crime. The
burden would not be lessened by the mere fact that the
accused has adopted the defence of alibi. The plea of the
accused in such cases need be considered only when the
burden has been discharged by the prosecution satisfactorily.
But once the prosecution succeeds in discharging the burden it
is incumbent on the accused, who adopts the plea of alibi, to
prove it with absolute certainty so as to exclude the possibility of
his presence at the place of occurrence. When the presence of
the accused at the scene of occurrence has been established
satisfactorily by the prosecution through reliable evidence,
normally the court would be slow to believe any counter-
evidence to the effect that he was elsewhere when the
occurrence happened. But if the evidence adduced by the
accused is of such a quality and of such a standard that the
court may entertain some reasonable doubt regarding his
presence at the scene when the occurrence took place, the

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 accused would, no doubt, be entitled to the benefit of that
reasonable doubt. For that purpose, it would be a sound
proposition to be laid down that, in such circumstances,
the burden on the accused is rather heavy. It follows,
therefore, that strict proof is required for establishing the
plea of alibi. This Court has observed so on earlier
occasions (vide Dudh Nath Pandey v. State of U.P. [(1981) 2
SCC 166 : 1981 SCC (Cri) 379] ; State of Maharashtra v.
Narsingrao Gangaram Pimple [(1984) 1 SCC 446 : 1984 SCC
(Cri) 109 : AIR 1984 SC 63].

213. The Supreme Court in the case of Jitender Kumar Vs. State of
Haryana, (2012) 6 SCC 204 while rejecting the plea of alibi taken by
the Appellants as being without any substance, including the
documentary evidence produced by them to substantiate the said plea,
held that where the testimonies of natural witnesses to the occurrence
(husband and brother of the deceased) were found to be trustworthy,
the plea of alibi faded into insignificance. In para 71, it was held
that:- (SCC, Page 226)
71. Once PW 10 and PW 11 are believed and their statements
are found to be trustworthy, as rightly dealt with by the courts
below, then the plea of abili raised by the accused loses its
significance. The burden of establishing the plea of alibi lay
upon the appellants and the appellants have failed to bring on
record any such evidence which would, even by reasonable
probability, establish their plea of alibi. The plea of alibi in fact
is required to be proved with certainty so as to completely
exclude the possibility of the presence of the accused at
the place of occurrence and in the house which was the
home of their relatives. (Ref. Sk. Sattar v. State of
Maharashtra [(2010) 8 SCC 430 : (2010) 3 SCC (Cri) 906] .)

214. In Sahabuddin v. State of Assam, (2012) 12 SCALE 241, the

plea of alibi taken by the Appellants and sought to be proved through
defence witnesses was rejected by the trial court and the High Court
as nothing but a falsehood. The Supreme Court on reconsideration of
the evidence held that where the Court disbelieves the plea of alibi,

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the Court is entitled to draw adverse inference against the accused and
this fact would support the case of the prosecution. To put it
differently, it would be an additional circumstance in favour of the
prosecution and against the accused. It was observed:- (SCALE, page
250)
25. Once, the Court disbelieves the plea of alibi and the
accused does not give any explanation in his statement
under Section 313 CrPC, the Court is entitled to draw
adverse inference against the accused.

215. Even in cases of circumstantial evidence it has been held that a

false alibi set up by the accused would be a link in the chain of
circumstances on which a conviction could be based. Thus, in the
case of Babudas Vs. State of M.P. (2003) 9 SCC 86, the Court held:
(SCC, Page 91)
4. ... We agree with the learned counsel
for the respondent State that in a case of circumstantial
evidence, a false alibi set up by the accused would be a link in
the chain of circumstances as held by this Court in the case of
Mani Kumar Thapa but then it cannot be the sole link or the sole
circumstance based on which a conviction could be passed.

216. Tested on the anvil of the aforesaid law laid down by the
Supreme Court, we do not find any substance in the plea of alibi
sought to be pressed into service by accused Vinay and accused
Pawan @ Kalu. We are also not impressed with the video
clipping which forms the mainstay of this defence as we are of the
considered opinion that the video clip in the instant case does not
satisfy the conditions prescribed for admissibility of video
recorded/tape recorded events. The law in this regard is too well
settled for us to dilate at any great length on it. We would,

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however, be failing in our duty if we do not note the conditions
stipulated by the Supreme Court for the admissibility of electronic
evidence. A three Judge Bench of the Supreme Court in Ram
Singh and Others vs. Col. Ram Singh, 1985 (Suppl) Supreme
Court Cases 611 dealing with this aspect held as under:- (SCC,
page 623)
32. Thus, so far as this Court is concerned the conditions for
admissibility of a tape-recorded statement may be stated as
follows:

(1) The voice of the speaker must be duly identified by the

maker of the record or by others who recognise his voice. In
other words, it manifestly follows as a logical corollary that the
first condition for the admissibility of such a statement is to
identify the voice of the speaker. Where the voice has been
denied by the maker it will require very strict proof to determine
whether or not it was really the voice of the speaker.
(2) The accuracy of the tape-recorded statement has to be
proved by the maker of the record by satisfactory evidence
direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of
a tape-recorded statement must be ruled out otherwise it may
render the said statement out of context and, therefore,
inadmissible.
(4) The statement must be relevant according to the rules of
Evidence Act.
(5) The recorded cassette must be carefully sealed and kept
in safe or official custody.
(6) The voice of the speaker should be clearly audible and
not lost or distorted by other sounds or disturbances.

{See: Yusufalli Esmail Nagree Vs. State of Maharashtra,

(1967) 3 SCR 720; N.Sri Rama Reddy Vs. V.V. Giri, (1970) 2
SCC 340; R.M. Malkani Vs. State of Maharashtra, (1973) 1
SCC 471; 1973 SCC (Cri) 399; Ziyauddin Burhanuddin
Bukhari Vs. Brijmohan Ramdass Mehra, (1976) 2 SCC 17; R.
Vs. Maqsud Ali, (1965) 2 All ER 464; R. Vs. Robson, (1972) 2
All ER 699, relied on}

217. In Ram Singhs case (supra), the Supreme Court further

noted the American Jurisprudence on the subject as under:-

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 35. In American Jurisprudence 2d (Vol. 29) the learned Author
on a conspectus of the authorities referred to in the foot-note in
regard to the admissibility of tape-recorded statements at p. 494
observes thus:

The cases are in general agreement as to what

constitutes a proper foundation for the admission of a
sound recording, and indicate a reasonably strict
adherence to the rules prescribed for testing the
admissibility of recordings, which have been outlined as
follows:
(1) a showing that the recording device was capable of
taking testimony;
(2) a showing that the operator of the device was
competent;
(3) establishment of the authenticity and correctness of
the recording;
(4) a showing that changes, additions, or deletions have
not been made;
(5) a showing of the manner of the preservation of the
recording;
(6) identification of the speakers; and
(7) a showing that the testimony elicited was voluntarily
made without any kind of inducement.

... However, the recording may be rejected if it is so

inaudible and indistinct that the jury must speculate
as to what was said.
(emphasis supplied)

218. In Tukaram S. Dighole Vs. Manikrao Shivaji Kokate, (2010)

4 SCC 329, the Supreme Court discussed the admissibility of
electronic evidence/tape records referring to earlier decisions on the
subject as follows:- (SCC, Page 338)
24. In Yusufalli Esmail Nagree v. State of Maharashtra [AIR
1968 SC 147 : 1968 Cri LJ 103 : (1967) 3 SCR 720] this Court
observed that since the tape-records are prone to tampering,
the time, place and accuracy of the recording must be proved
by a competent witness. It is necessary that such evidence
must be received with caution. The court must be satisfied,

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 beyond reasonable doubt that the record has not been
tampered with.

25. In R. v. Maqsud Ali [(1966) 1 QB 688 : (1965) 3 WLR 229 :

(1965) 2 All ER 464 (CCA)] it was said (QB p. 701 D-E) that it
would be

wrong to deny to the law of evidence advantages to be

gained by new techniques and new devices, provided the
accuracy of the recording can be proved and the voices
recorded [are] properly identified. Such evidence should
always be regarded with some caution and assessed in
the light of all the circumstances of each case.

26. In Ziyauddin Burhanuddin Bukhari [(1976) 2 SCC 17],

relying on R. v. Maqsud Ali [(1966) 1 QB 688 : (1965) 3 WLR
229 : (1965) 2 All ER 464 (CCA)], a Bench of three Judges of
this Court held that the tape-records of speeches were
admissible in evidence on satisfying the following conditions:
(SCC p. 26, para 19)

(a) The voice of the person alleged to be speaking

must be duly identified by the maker of the record or
by others who know it.

(b) Accuracy of what was actually recorded had to

be proved by the maker of the record and
satisfactory evidence, direct or circumstantial, had
to be there so as to rule out possibilities of
tampering with the record.

(c) The subject-matter recorded had to be shown to

be relevant according to rules of relevancy found in
the Evidence Act.

Similar conditions for admissibility of a tape-recorded statement

were reiterated inRam Singh v. Col. Ram Singh [1985 Supp
SCC 611] and recently in R.K. Anand v.Delhi High Court [(2009)
8 SCC 106 : (2010) 2 SCC (Cri) 563] .

27. Tested on the touchstone of the tests and safeguards

enumerated above, we are of the opinion that in the instant
case the appellant has miserably failed to prove the authenticity
of the cassette as well as the accuracy of the speeches
purportedly made by the respondent. Admittedly, the appellant
did not lead any evidence to prove that the cassette produced
on record was a true reproduction of the original speeches by
the respondent or his agent. On a careful consideration of the
evidence and circumstances of the case, we are convinced that

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 the appellant has failed to prove his case that the respondent
was guilty of indulging in corrupt practices.

219. We have taken care to note the aforesaid conditions laid

down by the Supreme Court for the reason that there is no
evidence on record suggestive of the fact that the conditions for
the admissibility of the video clip as laid down by the Honble
Supreme Court in the case of Ram Singh (supra) were proved by
the defence. This being so, the necessary corollary is that the
video clip must be held to be inadmissible in evidence. The
inadmissibility of this exhibit notwithstanding, we took pains to view
the video clip produced before us and found the same to be inaudible,
indistinct and visually unclear.
220. Unfortunately, therefore, the plea of alibi taken by accused
Vinay Sharma in his statement under Section 313 Cr.P.C. and sought
to be corroborated by leading defence evidence cannot bear scrutiny.
As delineated above, the prosecution has proved the call detail
records Ex.PW-23/B of the mobile phone of accused Vinay Sharma,
having SIM No.8285947545, which was admittedly in the name of
his mother, Smt. Champa Devi, but in the possession of accused
Vinay Sharma in the evening of 16.12.2012. Allegedly, this phone
was snatched by one Vipin at the music party and returned to Vinay
Sharma in the morning of 17.12.2012. The call detail records
(Ex.PW-23/B) show otherwise. As per the call detail records, the
accused had been making calls to one particular number viz.,
8601274533 from 15.12.2012 till 20:19:37 A.M. on 17.12.2012. The
authenticity of the CDR is proved under Section 65-B of the Indian

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Evidence Act, 1872. The question which arises is if the accused was
not having a SIM card in his phone No. 8285947545, then how could
he call from this SIM on 15.12.2012, then on 16.12.2012 and in the
morning of 17.12.2012 till about 8:23:42 PM.
221. Then again, as regards the location of the accused on the fateful
day, as noted above, his mobile phone registered a call for 58 seconds
at 9:55:21 and the location of the said call was found near IGI
Airport, i.e., road covered by the Route Map Ex.PW-80/H, where the
bus Ex.P-1 was moving on that night. This altogether belies the story
of the accused that his mobile phone had been snatched from him at
the party by one Vipin at 9:30 PM. What sounds the death knell of
the story concocted by the accused that he had no memory card and
SIM card in his mobile phone, is the video clip produced in evidence
by him. If, as per him, he had no memory card in his mobile phone,
then the question of making a video clip from his mobile phone by his
friend DW-10 Shri Ram Babu cannot arise. Of equal significance is
the fact that the personal search memo Ex.PW-60/D of accused Vinay
Sharma does not show that the said mobile phone, when seized, had
any memory card in it. What befuddles the mind is how this memory
card was produced later on by the accused, i.e after the accused had
taken his mobile phone on superdari from the malkhana. The learned
trial Judge in this context has rightly noted that this rather shows that
the memory card was inserted in the said phone only after the phone
was taken on superdari. Finally, it appears to us to be a strange
coincidence that both accused Vinay and accused Pawan merrily went
to a party where one lost his mobile and the others mobile was

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snatched by a friend. Ironically, that friend (Vipin) has not appeared
in the witness box to testify to the fact that it was he who had
snatched the mobile of Vinay Sharma on the fateful night and to save
him from the clutches of law. All this leads us to presume that the
mobile phones of both the aforesaid accused persons were
lost/snatched to suit their convenience and to save them from
implication in the present case.
222. As regards the veracity of the three dying declarations made
by the prosecutrix, Mr. A.P. Singh contended as follows:-
(i) The prosecutrix was medically unfit at the time of recording of
all her three dying declarations, which are nothing but
manipulated statements to serve political exigencies created
by the incident. This is evident from the fact that the first
dying declaration viz., the MLC Ex. PW 49/B does not bear
the signature of the prosecutrix and contains only her thumb
impression.
(ii) Alternatively, the brief history given by the prosecutrix at the
time of her medical examination is the only worthwhile
statement made by the prosecutrix. In the later stages, her
statements became tutored either by the family members as all
the family members and relatives of the complainant were
professional criminal lawyers or by the police officials. So,
her subsequent dying declarations (Ex.PW-27/A and Ex.PW-
30/D-1) be looked at with suspicion as the same may be the
result of tutoring.

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(iii) At the time of recording of the brief history of the assault in
the MLC, the prosecutrix was alert and her vitals were stable
and she could speak the truth, but after medication, she was
under the effect of medicines and till then her near and dear
ones and the police officials had tutored her so that a suitable
prosecution story could be worked out against the accused
persons.
(iv) The prosecutrix had failed to disclose the names of any of the
accused persons in the brief history given by her to the doctor
in MLC Ex.PW-49/A and also failed to give other details of
the incident. As a matter of fact, in her statement given to
PW-49 Dr. Rashmi Ahuja, the prosecutrix stated there were
around 4-5 men in the bus, that she remembers intercourse
two times and rectal penetration also. From the aforesaid
statement of the prosecutrix to PW-49 Dr. Rashmi Ahuja, it is
clear that there were only two men who raped the prosecutrix
though there were 4-5 men in the bus when the couple
boarded the bus.
(v) The second dying declaration of the prosecutrix Ex. PW-27/A
was not authentic as it was recorded after 9 days of the
incident. [It may be noted that the second dying declaration
was recorded on 21.12.2012, i.e., after 5 days whereas it was
Ex.PW-30/D-1 which was recorded on 25.12.2012, i.e., after 9
days].
(vi) The dying declaration of the prosecutrix recorded by PW-27
Smt. Usha Chaturvedi, SDM, i.e., Ex.PW-27/A cannot be

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 relied upon. The prosecutrix throughout her treatment was on
ventilation. When this query was put to PW-27, she simply
replied that the prosecutrix was on oxygen. This was clearly
indicative of the fact that the prosecutrix was having breathing
problems and in such a situation could not have given a
lengthy statement running into four pages wherein she
narrated each and every minor detail.
(vii) PW-27 Smt. Usha Chaturvedi, SDM at the time of recording
of the dying declaration had not asked the prosecutrix about
her fitness and whether she was giving her statement
willingly. PW-27 deposed before the Court that the
prosecutrix was comfortable, happy and willing to record her
statement. It is inconceivable that a patient who is on
ventilator due to breathing problems and in pain due to
multiple organ failure, can be comfortable and happy. In fact,
PW-27 in the course of her cross-examination admitted that
she had not stated at the start of the proceedings recorded by
her (Ex.PW-27/A) that she had put questions regarding
voluntariness of the prosecutrix to give her statement.
(viii) The second dying declaration was recorded at the instance of
the Delhi Police and a complaint in this context had been
made by the SDM, Smt. Usha Chaturvedi to the Chief
Minister, Delhi, which had been forwarded by the Chief
Minister to the Home Minister. This clearly indicates that the
Delhi Police had forced PW-27 to record the statement of the
prosecutrix and submit her report (Ex.PW-27/A) in the

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 manner Delhi Police wanted and PW-27 did the same, after
which she went on leave.
(ix) The dying declaration Ex.PW-27/A is a worthless document.
No such dying declaration was recorded on 21.12.2012. In
fact, the so-called dying declaration recorded by PW-27 was
already recorded on paper and the date of the previous day
was mentioned when the document was prepared, but later on
the said date was corrected by someone and mentioned as
21.12.2012 and PW-27 simply called it a human error.
(x) The statement recorded on 21.12.2012 was recorded in the
presence of PW-1 (the complainant) and in fact was the
statement given by PW-1 and not by the prosecutrix because
the prosecutrix never regained consciousness after her
admission in hospital.
(xi) The learned trial Judge failed to appreciate that the prosecutrix
was continuously on morphine ever since the prosecutrix was
admitted in the hospital and her treatment was started, since
the injuries mentioned in the MLC and the postmortem report
can generate severe pain, and without the administration of
morphine a patient cannot bear such pain. PW-52 Dr. P.K.
Verma cannot be believed when he states that injection
morphine was given at 6:00 PM on 20.12.2012 and its effect
would have lasted only for 3 to 4 hours. The prosecutrix
being a para-medical student, PW-52 Dr. P.K. Verma was at
pains to hide the fact that she was not fit for making the
statement.

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(xii) It defies logic that when the dying declaration of the
prosecutrix had been recorded by the SDM on 21.12.2012,
where was the necessity to hurriedly record another dying
declaration on 25.12.2012.
(xiii) The alleged third dying declaration recorded on 25.12.2012
ought to have been videographed.
(xiv) There is nothing on record to suggest that the learned
Metropolitan Magistrate (PW-30) had directed the
Investigating Officer of the case, who had been called for
identification of the prosecutrix, to vacate the room and
close the door of the ICU.
(xv) At the time of the recording of her statement Ex.PW-30/D-
1, which was recorded by PW-30 Shri Pawan Kumar on
25.12.2012, the prosecutrix was unfit for statement both
physically and mentally. The condition of the prosecutrix
was extremely serious on 25.12.2012 as is evident from
document Ex.DW-64/DA wherein it is stated:-
Considering the further deterioration in the
patients condition on 25th December, 2012 night
due to cardiac arrest, which was promptly
resuscitated, a team of doctors, which included,
Dr. Sandeep Bansal, HOD, Cardiology and Dr. S.
Raghavan, HOD Neurology opined that patient be
shifted abroad for further management.

Further, the document Exhibit PW-30/B shows that at

12:35 PM on the relevant day, i.e., 25.12.2012, Dr. P.K.
Verma opined that patient had endotracheal tube in place (that

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 is, in larynx and trachea) and was on ventilater and hence
could not speak. At 12:40 PM on the same day, there is an
endorsement made on the said document (Ex.PW-30/B) by
PW-28 Dr. Rajesh Rastogi to the effect that the patient is
conscious, cooperative, meaningfully communicative,
oriented, responding through non-verbal gestures, she is fit to
give statement. Learned defence counsel vociferously
contended that it is inconceivable that the prosecutrix who
was on life support system at 12:35 P.M., within five minutes,
i.e., at 12:40 PM was opined to be conscious, cooperative and
fit to give statement. Such change in the medical condition
within a short span of five minutes only was to say the least
unprecedented in medical history. The question before the
Court is whether it is possible for a patient put on ventilation
to be conscious, oriented, meaningfully communicative
through verbal gestures, and how did PW-28 Dr. Rajesh
Rastogi put questions to the prosecutrix to know that she is fit
to answer through verbal gestures correctly? The fitness
given by PW-28 Dr. Rajesh Rastogi is, therefore, not worthy
of credence. Hence, the dying declaration recorded by PW-30
Sh. Pawan Kumar, learned Metropolitan Magistrate is of no
value and is inadmissible in evidence (Ex.PW-30/D-1).
(xvi) None of the statements given by the prosecutrix can be
treated as dying declarations of the prosecutrix as she
expired on 29.12.2012 and before her death, no statement

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 of the prosecutrix was recorded at Mount Elizabeth
Hospital, Singapore.
(xvii) None of the statements given by the prosecutrix can be treated
as dying declarations since the prosecutrix was never
administered oath and hence her dying declarations are not
admissible in evidence. Even otherwise, the said statements/
dying declarations are not in the form prescribed by the Delhi
High Court Rules as set out in Chapter XIII, which envisage
recording of the dying declaration by the Judicial Magistrate
and that too such recording is required to be done at once.
(xviii) In any event, the third dying declaration made by gestures
cannot be relied upon as a dying declaration by signs, gestures
or nods is to be recorded by an expert. In the instant case, the
dying declaration was recorded by the learned Metropolitan
Magistrate, who had no certificate of training to record such
type of declaration by gestures, signs or nods.
223. It is proposed to deal with the aforesaid contentions
pointwise:-
(i) With regard to the contention of the defence that the first dying
declaration, viz., MLC Ex.PW-49/B does not bear the
signature of the prosecutrix and contains only her thumb
impression, it is apposite that PW-49 Dr. Rashmi Ahuja in her
cross-examination when questioned in this regard, gave a
cogent explanation for the same and we see no justifiable
ground to discard the said explanation, which appears to us to

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 be worthy of credence. In her cross-examination, PW-49 Dr.
Rashmi Ahuja states:-
When I had first seen the prosecutrix , she
was cold and clammy i.e. whitish (due to
vasoconstriction). I gave her IV line and
warm saline.Since the prosecutrix was
shivering and was cold so instead of taking
her signature we asked the prosecutrix to
give her thumb impression for consent.

PW-49 Dr. Rashmi Ahuja further proved Ex.PW-49/E,

which is a statement given by her on 02.01.2013, on an
application filed by the police seeking clarification whether
the facts stated in the MLC were stated by the victim herself.
The doctor clearly states in her response, at portion A to A
of Ex.PW-49/E, that the assault history and related events
were told by the victim herself. We see no reason not to give
credence to the statement of PW-49 Dr.Rashmi Ahuja who
maintained in her response that it was the prosecutrix who had
given answers recorded in the Casualty Sheet (Ex.PW-49/A).
As stated hereinabove, this document has been specifically
referred to and corroborated by the evidence of the SHO,
Inspector Anil Sharma (PW-78).
(ii) and (iii) Contentions (ii) and (iii) are being dealt with
together for the reason that both these contentions seek to cast
a cloud of suspicion on dying declarations Ex.PW-27/A and
Ex.PW-30/D-1 by tainting them as tutored. There is
however nothing forthcoming on record to suggest that the
prosecutrix was tutored as is sought to be made out. It is even

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 otherwise hard to believe that the near and dear ones of the
prosecutrix and the police officials had tutored her so that the
accused persons could be inculpated and the real culprits let
loose.
(iv) As regards contention No.(iv), the fact that the
prosecutrix did not name her assailants in the MLC nor could
immediately recall how many times she was raped and by
how many men and on a rough estimate stated that they were
4 or 5 in number appears to us to be of no significance for the
reason that she was under great trauma and suffering from
vasoconstriction on account of the loss of blood. A bare look
at the MLC Ex.PW-49/B bespeaks her perilous state. Her
extremely critical condition has also been affirmed by PW-49
Dr. Rashmi Ahuja in the MLC as well as in the witness box.
She states that the prosecutrix on account of the loss of blood
was shivering and was cold and clammy, unable even to affix
her signatures on the MLC. She had suffered a perineal tear, a
tag of vagina 6 cms in length was hanging outside the
introitus, there was profuse bleeding from vagina and in the
posterior vaginal wall there was a tear of about 7 to 8 cms,
rectal tear of about 4 to 5 cms communicating with the vaginal
tear was also visible on local examination. The patient was
referred to the OT for complete perineal repair. It also
emerges from the record that during the same night i.e. in the
night intervening 16th and 17th December, 2012 jejunostomy
was performed by PW-50 Dr. Raj Kumar Chejara (Surgeon).

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 In such a condition, to expect the prosecutrix to give details of
the incident defies logic and appears to us to be highly
irrational.
(v) As regards the contention of the defence that the
second dying declaration of the prosecutrix Ex.PW-27/A
was not authentic as it was recorded after 5 days of the
incident (wrongly mentioned as 9 days), the medical record
of the prosecutrix shows that the prosecutrix remained unfit
for recording of her statement on 17th December, 18th
December, 19th December and 20th December, 2012. It was
only on 21st December, 2012 at about 6 p.m. that she was
declared fit for recording of her statement. In her said
statement recorded by the SDM, she has given the names of
her six assailants and has specified the exact role played by
each of them and the barbaric manner in which they defiled
her body.
(vi) As regards the fitness of the prosecutrix at the time of the
recording of her dying declaration Ex.PW-27/A, the
sequence of events leading upto the recording of the
statement of the prosecutrix on 21.12.2012 is as follows:-
On 21.12.2012, the I.O. SI Pratibha Sharma moved an
application (Ex.PW-27/DB) before the Medical
Superintendent, Safdarjung Hospital PW-64 Dr. B.D. Athani,
seeking recording of statement of the victim by the Sub-
Divisional Magistrate. PW-64 Dr. B.D. Athani, Medical
Superintendent, Safdarjung Hospital marked the said

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 application to Dr. P.K. Verma, Incharge, ICU, for doing the
needful and his endorsement to this effect appears at Point C
on Ex.PW-27/DB. PW-52 Dr. P.K. Verma, who received the
application of the Investigating Officer Ex.PW-27/DB with
the endorsement of PW-64 Dr. B.D. Athani declared the
prosecutrix fit to give her statement. Dr. P.K. Verma (PW-52)
in his evidence states as follows:
The said application was addressed to the Medical
Superintendent, S.J. Hospital. It was marked to me by
the M.S. S.J. Hospital for doing the needful. Accordingly,
I examined the prosecutrix and found her to be fit,
conscious, oriented and meaningfully communicative
for making statement. Accordingly, I made an
endorsement regarding her fitness at point A on the
application Ex. PW-27/D-B. It bears my signature at
point B.

Nothing has emerged from the cross-examination of

PW-52 Dr. P.K. Verma to discredit his aforesaid statement
in any manner. He categorically denied the suggestion put
to him that the prosecutrix was throughout unfit for
recording of her statement by stating:-
It is 100% wrong to suggest that throughout her
treatment from 16.12.2012, the prosecutrix was
under drowsiness, having difficulty in breathing or
was having slow or laboured breathing, till the time
she was taken to Singapore.

On a specific query put to PW-52 Dr. P.K. Verma as

to whether the prosecutrix was on life support system on
21.12.2012 when applicatoin Ex.PW-27/DB for recording
her statement was placed before him, he gave the following
reply:-

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 The endo-tracheal tube was removed at about 1:30
PM to 2 PM, as she did not require it further at that
time. She was only getting oxygen through mask. No
ventilator was being used at that time. We were
giving I.V. fluids, medication and parentral nutrition
to the prosecutrix through the intravenous canula.

From the aforesaid evidence on record, it clearly

emerges that the prosecutrix who was on oxygen was in a
position to make the statement Ex.PW-27/A.
(vii) With regard to contention No.(vii), there is on record
the evidence of PW-27 Smt. Usha Chaturvedi, SDM to the
effect that before recording the dying declaration of the
prosecutrix, she had ascertained her voluntariness to make
the statement and also the fact that she was medically fit.
She thereafter recorded her statement Ex.PW-27/A. Her
deposition to this effect is as under:-
On reaching the hospital I inquired from
ACP Vasant Vihar as to if the patient has
been fit for statement or not. He told me that
the patient has been declared fit for
statement.

After being satisfied, I recorded the

statement of prosecutrix. Same running into
4 page in 2 sheets are Ex. PW-27/A which
bears my signature at points A. The
prosecutrix appended her signature on all the
pages in my presence and on the last page
she also wrote the date and time. I identify her
signature at points B on statement Ex. PW-
27/A.

In the course of her cross-examination, she further

stated as under:-
It is wrong to suggest that the prosecutrix was on
ventilator or was under extreme pain and she was
not able to speak at that time. It is wrong to suggest

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 that the prosecutrix was not capable of breathing
properly. VOL: When she was speaking with me, it
can not be said that she was not able to breathe.
While talking she used to remove her oxygen mask
at times.
..
It is wrong to suggest that the prosecutrix was
incapable of giving long answers to my questions or
that I made additions in her answers at the instance
of police.
It is true that I had not stated in the start of my
proceedings Ex.PW27/A that I had put questions
regarding voluntariness or pressure upon the
prosecutrix, if any, but after recording the statement I
had put a note at the end wherein she had stated that
she is giving the statement without any pressure and
in complete senses. It is wrong to suggest that she
had not stated to me that she is giving her statement
without any pressure or in complete senses as
mentioned in ExPW27/A.
..
It is wrong to suggest that prosecutrix was in
severe pain, vomiting, coughing, having breathing
problem or was on ventilator at that time.

The prosecutrix before signing had read her
statement Ex. PW-27/A herself. Even I read over the
said statement to her and then only she signed after
the bed was raised from her back portion.

We may usefully note that a similar contention raised by

the defence in the case of Goverdhan Raoji Ghyare Vs. State
of Maharashtra 1993 Supp (4) SCC 316, was rejected
outright by the Supreme Court. In the said case the dying
declaration was recorded by the Taluka Magistrate after
obtaining a certificate from the doctor that the deceased was
in a fit state of mind to make the statement. A distinction was,
however, sought to be made out by the learned Sessions Judge
dealing with the said case that fit state of mind and
conscious state of mind were not the same thing. The

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 Supreme Court, while declaring that such a distinction as was
sought to be made out by the learned Sessions Court was too
hyper-technical in the facts and circumstances of the case,
observed:-
The learned Magistrate put the questions to the
deceased and then recorded the statement. It will be
wholly unjustified to hold that simply because the
Magistrate did not put a direct question to the deceased
as to whether she was in a fit state of mind to make the
statement, the dying declaration was required to be
discarded.

(viii) As regards contention No.(viii) that the statement

recorded by the SDM had been recorded at the behest of the
Delhi Police and in the manner suggested by the Delhi Police,
containing the facts to suit them, and that the SDM (PW-27
Usha Chaturvedi) had filed a complaint against the Delhi
Police because of this reason, this is strongly refuted by the
SDM (PW-27) herself. She categorically stated in her cross-
examination that the Delhi Police did not ever ask her to
record the statement of the prosecutrix in a particular manner,
and that she had recorded the statement of the prosecutrix on
her own after asking questions from her and by noting down
her answers. She volunteered to state that no police officer or
the Investigating Officer was with her at the time of the
recording of the statement of the prosecutrix. Rather, she had
bolted the door of the cabin within the ICU at the time of the
recording of the statement.
The further contention of the defence that the report filed
by the SDM against the Delhi Police in the aforesaid context

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 was sent by the Chief Minister of Delhi to the Home Minister
was also strongly refuted by PW-27 Usha Chaturvedi. She
clarified in her cross-examination that the report which she
had made was qua some issues raised in relation to
coordination/administration problem and she had submitted
her said report to her seniors. She had not filed any report
against the Delhi Police to the Chief Minister of Delhi. As
regards the voluntary nature of the statement of the
prosecutrix, she stated:-
After recording the statement I had put a note at the
end wherein she had stated that she is giving the
statement without any pressure and in complete
senses. It is wrong to suggest that she had not stated
to me that she is giving her statement without any
pressure or in complete senses as mentioned in
ExPW27/A.

(ix) As regards the contention of the defence that Ex.PW-27/A

was a worthless document as no such dying declaration
was recorded on 21.12.2012 and the so-called dying
declaration recorded by PW-27 was in fact recorded on the
previous day as evidenced from the overwriting of the date
on the said document, we see no reason to disbelieve the
statement made by PW-27 (the SDM) that the statement
was recorded on 21.12.2012 and that the overwriting on
the date was a human error. We reproduce hereunder the
relevant part of her cross-examination:-
It is correct that in Ex.PW27/B there is an over writing on
the date under my signature. VOL: It was a human error.
The statement was recorded on 21-12-2012, so for all
purpose this date will be 21-12-2012.

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(x) In the context of contention No.(x), suffice it to note that
as regards the presence of PW-1 at the time of recording of
her statement, PW-27 Smt. Usha Chaturvedi, the SDM
categorically denied the suggestion put to her that the
complainant was tutoring the prosecutrix or that she had
recorded the statement of the prosecutrix at the instance of
the complainant PW-1. She in fact stated that she had not
met the complainant at all. We see no reason to disbelieve
the SDM nor any reason could be pointed out by the
defence.
(xi) Adverting to the contention No.(xi) that the prosecutrix was
being administered injection morphine at the time of the
recording of her second dying declaration and this rendered
her unfit for making any statement, PW-52 Dr. P.K. Verma
has more than satisfactorily explained this aspect of the matter
in his cross-examination. He specifically states that injection
morphine was not given to the patient on 21.12.2012, i.e. on
the day on which her statement was recorded. He further
states that the dose of morphine was last given at 6 P.M. on
20.12.2012 (i.e the previous day) and explains that the effect
of morphine lasts only for 3-4 hours. The ICU recovery chart
for the aforesaid dates (Ex.PW-52/D-A) which affirms this
statement made by the doctor, was relied upon by him in this
regard. The following extract from the cross-examination of
PW-52 Dr. P.K. Verma is relevant in the context of the

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 prosecutrix not being under the influence of morphine at the
time of recording of her statement:-
The Inj. morphine was given SOS on 19-12-2012 and
that on 20-12-2012 the dose of Inj Morphine was
reduced from 3 mg to 1 mg every six hourly and that
only two doses i.e at 10 am and 4 PM were given. I
had put cross on Injection Morphine 3 mg to re-write it
as 0.5 mg but looking at the condition I even put a
cross on 0.5 mg and increased the dose to 1 mg, as
shown in the ICU Recovery Chart dated 20-12-2012. I
may say that the ICU Recovery Chart is prepared at 6
AM on the same day by the Staff Nurse on the night duty
taking into consideration the medication given to the
patient a day before. Then the doctor who comes on duty,
checks the patient and if he intends to decrease or
increase any medication he may do so by changing the
said medication by cutting in the chart prepared at 6 AM
by the staff nurse and that is why though the dosage of Inj
Morphine was shown to be 3 mg by the staff nurse but
when I examined the patient I reduced it firstly to 0.5 mg
but then decided to give 1 mg, as stated in the chart.

In his subsequent cross-examination, PW-52 Dr. P.K.

Verma on a specific question put to him in this regard stated
that he had most certainly examined the patient after the
receipt of the application Ex.PW-27/D-B and made
endorsement on the said application regarding her fitness. He
further stated that he had examined the patient for 10-15
minutes before giving his endorsement regarding her fitness.
An analysis of Dr. P.K. Vermas statement thus demolishes the
theory of the defence that on account of the administration of
injection morphine the prosecutrix was not in a position to
make statement. In fact, the doctor has clearly proved that the
last dose of morphine was administered at 6.00 P.M. on the
previous day and as per the record the statement before the

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 SDM (PW-27) was recorded after 7.00 P.M. on the following
day, i.e., on 21.12.2012. An analysis of Dr. P.K. Vermas
statement further shows that the patient was fit to record her
statement before the learned SDM. The doctor is also
categorical in this respect when he states as under:-
It is 100% wrong to suggest that throughout her
treatment from 16.12.2012, the prosecutrix was under
drowsiness, having difficulty in breathing or having slow
or laboured breathing, till the time she was taken to
Singapore.

It would be apposite at this juncture to note that the

defence went to the extent of suggesting to the witness (PW-
52 Dr. P.K. Verma) that SJ Hospital did not have the licence
to give morphine injections to the patient. This too was
rebutted by PW-52 in his evidence dated 26.04.2013 by
submitting that he had brought the licence for administration
of morphine injections as given to the patients in Safdarjung
Hospital, and he produced a copy of the same before the
learned Trial Court.
(xii) In the context of contention No.(xii) that there was no
necessity to record another dying declaration on
25.12.2012, suffice it to note that the statement recorded
on 25.12.2012 was the statement of the prosecutrix under
Section 164 Cr.P.C., which was recorded by the learned
Metropolitan Magistrate under the mandate of law. In any
event, there is no material variation or contradiction

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 between the statement recorded by the SDM and the
Metropolitan Magistrate.
(xiii) As regards the contention of the defence that the third
dying declaration recorded on 25.12.2012 ought to have
been videographed, suffice it to note that the mere fact that
the recording of the statement by the Metropolitan
Magistrate was not videographed cannot be interpreted to
mean that the said statement was not an authentic one. In
any event, the provision for videography was inserted by
the Criminal Law (Amendment) Act, 2013 (Act No.13 of
2013) with effect from 03.02.2013 in the proviso to the
newly added Sub-Section 5(A) of Section 164 and
hithertobefore, i.e., on 21.12.2012 when the statement of
the prosecutrix was recorded the provision for videography
was not mandated by the legislature.
(xiv) With regard to the contention of the defence that there is
nothing on record to suggest that the learned Metropolitan
Magistrate had directed the Investigating Officer of the
case to vacate the room at the time of the recording of the
statement of the prosecutrix, we find from the record that
PW-30 Shri Pawan Kumar, Metropolitan Magistrate, in his
deposition, has made a categorical assertion that after
making preliminary enquiries, which are at point Q to Q1
in Ex.PW-30/C, he directed the I.O. to leave the ICU. He
and the prosecutrix remained alone in the ICU though due
to certain precautions he allowed Dr. Ranju Gandhi

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 (Anaesthetist) to remain so as to monitor the medical
equipment. He further deposed that his noting in this
regard is at point R to R1 in Ex.PW-30/C.
(xv) With regard to contention (xv) which relate to the medical
fitness of the prosecutrix at the time of the recording of her
statement Ex.PW-30/D-1, though this contention appears to
us to be at first blush attractive, on closer scrutiny of the
evidence on record we are constrained to observe that
beguilingly simple though this argument is it lacks substance.
PW-52 Dr. P.K. Verma has given a complete answer to the
aforesaid argument by the following cogent and lucid
explanation given by him on this aspect in his examination-in-
chief:
I had examined the prosecutrix at 12:35 PM on 25-12-
2012. Thereafter, the prosecutrix was also examined by
Dr. Rajesh Rastogi at 12:40 P.M. who had also
concurred my opinion. Both Dr Rastogi, myself and
other members of the team examined the prosecutrix
together. Although our opinions were written at
different times.

The following extract from the cross-examination of

PW-52 Dr. P.K. Verma is also apposite:-
It is correct that in Ex. PW -28/A, I had not
e n d o r s e d that the prosecutrix was conscious,
cooperative, meaningfully communicative, oriented and
(fit) to make statement through non verbal gesture. As a
team we all doctors examined the prosecutrix
together and then thereafter we made our
endorsement(s) on the application Ex. PW-30/B at
different times i.e. firstly I wrote my endorsement and
then Dr. Rastogi had given his endorsement.

On a specific query put to him:

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 Q : How the prosecutrix became fit to give
statement at 12.40PM when she was not fit to make
statement at 12.35PM ?

He answered:
A. : I had never said that she was unfit to give
statement at 12.35P.M., rather I had said that he was
on ventilator and hence cannot speak. In fact we all
doctors examined in the same time, though the
endorsement was made by us one after the another.

The Ld. MM had inquired from me, if the

prosecutrix was fit enough to make statement, I
replied that we are examining the prosecutrix
and would let him know. Thereafter we made the
necessary endorsement on application Ex. PW-30/B.

The aforesaid explanation given by PW-52 Dr. P.K.

Verma who was at the relevant time the incharge of the ICU
in Safdarjung Hospital shows that the contention of the
defence counsel, which at first appeared invincible, is wholly
specious in nature. Further, it is evident from document
Ex.PW-64/DA that it was in the intervening night of 25 th
and 26th December, 2012 that the condition of the
prosecutrix became extremely critical.
(xvi) With regard to contention No.(xvi), suffice it to state that
no statement of the prosecutrix was recorded at Mount
Elizabeth Hospital, Singapore for the reason that the
prosecutrix was wholly unfit to make any statement at that
point of time.
(xvii) The aforesaid contention being legal in nature, at the outset,
it is essential to deal with the scope of Section 32(1) of the
Indian Evidence Act, 1872, which reads as under:

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 32. Cases in which statement of relevant fact by
person who is dead or cannot be found, etc., is
relevant.- Statements, written or verbal, of relevant facts
made by a person who is dead, or who cannot be found,
or who has become incapable of giving evidence, or
whose attendance cannot be procured without an amount
of delay or expense which under the circumstances of the
case, appears to the Court unreasonable, are themselves
relevant facts in the following cases:

(1) When it relates to cause of death - When the statement

is made by the person as to the cause of his death or as to
any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of that
persons death comes into question. Such statements are
relevant whether the person who made them was or was
not at the time when they were made under expectation of
death and whatever may be the nature of the proceeding
in which the cause of his death comes into question.

The highlighted phrase, that is, circumstances of the

transaction which resulted in his death has been subject
matter of a number of judgments of the Privy Council and the
Honble Supreme Court. A five Judge Bench of the Privy
Council gave the defining judgment on the issue in Pakala
Narayana Swami v. King Emperor 1939 AIR PC 47. Lord
Atkin speaking for the Bench elucidated the point as follows,
(AIR, Page 50):
The first question with which their Lordships propose
to deal is whether the statement of the widow that on
20th March the deceased had told her that he was
going to Berhampur as the accused's wife had written
and told him to go and receive payment of his dues
was admissible under S. 32(1) of the Indian Evidence
Act, 1877. That section provides:

Statements written or verbal of relevant

facts made by a person who is
deadare themselves relevant facts in
the following cases (1) when the statement is
made by the person as to the cause of his

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 death or as to any of the circumstances of
the transaction which resulted in his death, in
cases in which the cause of that person's
death comes into question.
Such statements are relevant whether the
person who made them was or was not at
the time when they were made under
expectation of death and whatever may be
the nature of the proceeding in which the
cause of his death comes into question.
A variety of questions has been mooted in
the Indian Courts as to the effect of this
section. It has been suggested that the
statement must be made after the
transaction has taken place, that the person
making it must be at any rate near death,
that the circumstances can only include the
acts done when and where the death was
caused. Their Lordships are of opinion that
the natural meaning of the words used does
not convey any of these limitations. The
statement may be made before the cause
of death has arisen, or before the
deceased has any reason to anticipate
being killed. The circumstances must be
circumstances of the transaction: general
expressions indicating fear or suspicion
whether of a particular individual or
otherwise and not directly related to the
occasion of the death will not be admissible.
But statements made by the deceased that
he was proceeding to the spot where he was
in fact killed, or as to his reasons for so
proceeding, or that he was going to meet a
particular person, or that he had been invited
by such person to meet him would each of
them be circumstances of the transaction,
and would be so whether the person was
unknown, or was not the person accused.
Such a statement might indeed be
exculpatory of the person accused.
Circumstances of the transaction is a
phrase no doubt that conveys some
limitations. It is not as broad as the
analogous use in circumstantial evidence
which includes evidence of all relevant facts.
It is on the other hand narrower than res
gestae. Circumstances must have some
proximate relation to the actual occurrence:

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 though as for instance in a case of prolonged
poisoning they may be related to dates at a
considerable distance from the date of the
actual fatal dose.

The above view has been consistently followed and

reiterated by the Honble Supreme Court time and again. In the
judgment in Amar Singh v. State of Rajasthan (2010) 9 SCC
64 (SCC, Page 69), it has been held as under:
18. Clause (1) of Section 32 of the Evidence Act
provides that statements made by a person as to the
cause of his death, or as to any of the circumstances of
the transaction which resulted in his death, in cases in
which the cause of that person's death comes into
question, are themselves relevant facts. In the present
case, the cause of death of the deceased was a
question to be decided and the statements made by
the deceased before PW 4 and PW 5 that the appellant
used to taunt the deceased in connection with the
demand of a scooter or Rs. 25,000 within a couple of
months before the death of the deceased are
statements as to the circumstances of the transaction
which resulted in her death within the meaning of
Section 32(1) of the Evidence Act.

19. In Pakala Narayana Swami v. King Emperor

[(1938-39) 66 IA 66 : AIR 1939 PC 47] Lord Atkin held
that circumstances of the transaction which resulted in
the death of the declarant will be admissible if such
circumstances have some proximate relation to the
actual occurrence. The test laid down by Lord Atkin
has been quoted in the judgment of Fazal Ali, J. in
Sharad Birdhichand Sarda v. State of
Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Cri)
487] and His Lordship has held that Section 32 of the
Evidence Act is an exception to the rule of hearsay
evidence and in view of the peculiar conditions in the
Indian society has widened the sphere to avoid
injustice. His Lordship has held that where the main
evidence consists of statements and letters written by
the deceased which are directly connected with or
related to her death and which reveal a tell-tale story,
the said statements would clearly fall within the four
corners of Section 32 and, therefore, admissible and

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 the distance of time alone in such cases would not
make the statements irrelevant.

On the aforesaid touchstone, we have no hesitation in

concluding the statements made by the victim/prosecutrix to
PW-49 Dr. Rashmi Ahuja, PW-27 Smt Usha Chaturvedi, SDM
and PW-30 Sh. Pawan Kumar, MM are all dying declarations.

As regards the non-administration of oath to the victim in

the present case, the question which arises for consideration is
as to whether the SDM or the M.M. was required to administer
oath while recording a dying declaration? We think not. No
requirement of oath is mandated in a dying declaration nor
there is any statutory format for the same. In this context,
reference may usefully be made to the judgment of the
Constitution Bench in Laxman (Supra), the relevant portion
whereof is reproduced below (SCC, Page 113):
3. The juristic theory regarding acceptability of a
dying declaration is that such declaration is made
in extremity, when the party is at the point of death
and when every hope of this world is gone, when
every motive to falsehood is silenced, and the man
is induced by the most powerful consideration to
speak only the truth. Notwithstanding the same,
great caution must be exercised in considering the
weight to be given to this species of evidence on
account of the existence of many circumstances
which may affect their truth. The situation in which
a man is on the deathbed is so solemn and serene,
is the reason in law to accept the veracity of his
statement. It is for this reason the requirements of
oath and cross-examination are dispensed with.
Since the accused has no power of cross-
examination, the courts insist that the dying
declaration should be of such a nature as to
inspire full confidence of the court in its
truthfulness and correctness. The court, however,

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 has always to be on guard to see that the
statement of the deceased was not as a result of
either tutoring or prompting or a product of
imagination. The court also must further decide
that the deceased was in a fit state of mind and had
the opportunity to observe and identify the
assailant. Normally, therefore, the court in order to
satisfy whether the deceased was in a fit mental
condition to make the dying declaration looks up
to the medical opinion. But where the
eyewitnesses state that the deceased was in a fit
and conscious state to make the declaration, the
medical opinion will not prevail, nor can it be said
that since there is no certification of the doctor as
to the fitness of the mind of the declarant, the
dying declaration is not acceptable. A dying
declaration can be oral or in writing and any
adequate method of communication whether by
words or by signs or otherwise will suffice
provided the indication is positive and definite. In
most cases, however, such statements are made
orally before death ensues and is reduced to
writing by someone like a Magistrate or a doctor or
a police officer. When it is recorded, no oath is
necessary nor is the presence of a Magistrate
absolutely necessary, although to assure
authenticity it is usual to call a Magistrate, if
available for recording the statement of a man
about to die. There is no requirement of law that a
dying declaration must necessarily be made to a
Magistrate and when such statement is recorded
by a Magistrate there is no specified statutory form
for such recording. Consequently, what evidential
value or weight has to be attached to such
statement necessarily depends on the facts and
circumstances of each particular case. What is
essentially required is that the person who records
a dying declaration must be satisfied that the
deceased was in a fit state of mind. Where it is
proved by the testimony of the Magistrate that the
declarant was fit to make the statement even
without examination by the doctor the declaration
can be acted upon provided the court ultimately
holds the same to be voluntary and truthful. A
certification by the doctor is essentially a rule of
caution and therefore the voluntary and truthful
nature of the declaration can be established
otherwise.

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 In view of the aforesaid law enunciated by the
Constitution Bench in the case of Laxman v. State of
Maharashtra (Supra), which has been reiterated in Shudhakar
v. State of M.P. (2012) 7 SCC 569 and M. Sarvana v. State of
Karnataka (2012) 7 SCC 636, it is clear that issues of oath and
cross-examination are dispensed with while recording a dying
declaration. It is specifically highlighted in Laxman v. State of
Maharashtra (Supra), that no oath is necessary and there is no
statutory format for the recording of a dying declaration by a
Magistrate or a doctor or a police officer. As regards a dying
declaration recorded by a Magistrate, be it noted that the Code
of Criminal Procedure does not require any format for such a
dying declaration and, in fact, there is no requirement of
compliance either under Section 164 Cr.P.C. or under the
Punjab Police Rules. Learned defence counsel have questioned
the complexity of the Punjab Police Rules and adherence
thereto. It is, however, well-settled that the Punjab Police
Rules are only a guide for police officers in the State and
nothing more. Reference in this context may be made with
advantage to the judgment of Supreme Court in Paramjit
Singh v. State of Punjab (2007) 13 SCC 530. The relevant
extract of the said judgment is as under (SCC, Page 537):-
18. The Punjab Police Rules do not in any manner
override the provisions of the Code of Criminal Procedure.
The said Rules are meant for the guidance of the police
officers in the State and supplement the provisions of the
Code of Criminal Procedure but do not supplant them. In
our considered opinion the truth and veracity of contents
of FIR cannot in all cases be tested with a reference to

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 the entries made in the police station daily diary which is
maintained under the Punjab Police Rules. This avoidable
controversy need not detain us any further since it is well
settled that even a defect, if any, found in investigation,
however serious has no direct bearing on the competence
or the procedure relating to the cognizance or the trial. A
defect or procedural irregularity, if any, in investigation
itself cannot vitiate and nullify the trial based on such
erroneous investigation.

(xviii) In the context of recording dying declaration by gestures, the

settled legal position is that a dying declaration by gestures can
be recorded and the same possesses evidentiary value. It was
so held in the case of Meesala Ramakrishan Vs. State of A.P.
(1994) 4 SCC 182. In the said case, the Supreme Court
categorically held a dying declaration recorded by gestures to
be admissible. In paras 20 and 21, it was held as under: (SCC,
Page 188)
20. On the basis of what has been noted above, we
hold that dying declaration recorded on the basis of
nods and gestures is not only admissible but
possesses evidentiary value, the extent of which shall
depend upon who recorded the statement, what is his
educational attainment, what gestures and nods were
made, what were the questions asked whether they
were simple or complicated and how effective or
understandable the nods and gestures were.

21. In the present case, the questions being simple

and short, the recorder being a Magistrate, the certifier
of mental conscious state of the deceased being a
doctor, nods being effective and meaningful, we are
satisfied that full reliance could have been placed on
the statement of the deceased as recorded by PW 11
to find the appellant guilty under Section 302.

The dying declaration in question in the instant case

having been recorded by a Magistrate, the aforesaid law laid
down in Meesala Ramakrishan Vs. State of A.P. (Supra)

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 applies on all fours to the present case. While approving of the
law laid down in Meesala Ramakrishan Vs. State of A.P.
(Supra), the Supreme Court in case of Laxman v. State of
Maharashtra (Supra) held as under:-
A dying declaration can be oral or in writing and
any adequate method of communication whether
by words or by signs or otherwise will suffice
provided the indication is positive and definite.

In the case of B. Shashikala v. State of A.P. (2004) 13

SCC 249, it was again observed that if the concerned
Magistrate was in a position to observe gestures of the person
giving a dying declaration, it could compensate for the fact that
he was not fluent in the native tongue of the deceased. The
Court held as under (SCC, Page 253):
13. The evidence of PW 8 is absolutely clear and
unambiguous as regards the manner in which he
recorded the statement of the deceased with the help
of PW 4. It is also evident that he also has knowledge
of Hindi although he may not be able to read and write
or speak in the said language. His evidence also
shows that he has taken all precautions and care while
recording the statement. Furthermore, he had the
opportunity of recording the statement of the deceased
upon noticing her gesture. The court in a situation of
this nature is also entitled to take into consideration the
circumstances which were prevailing at the time of
recording the statement of the deceased.

In Nallapati Sivaiah v. Sub-Divisional Officer, Guntur,

Andhra Pradesh (2007) 15 SCC 465, the Supreme Court
reiterated the position with regard to the use of gestures in a
dying declaration as under (SCC, Page 475):
25. The court has to consider each case in the
circumstances of the case. What value should be given
to a dying declaration is left to court, which on

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 assessment of the circumstances and the evidence
and materials on record, will come to a conclusion
about the truth or otherwise of the version, be it written,
oral, verbal or by sign or by gestures.

It was further stated as under:-

26. It is also a settled principle of law that dying

declaration is a substantive evidence and an order of
conviction can be safely recorded on the basis of dying
declaration provided the court is fully satisfied that the
dying declaration made by the deceased was voluntary
and reliable and the author recorded the dying
declaration as stated by the deceased. This Court laid
down the principle that for relying upon the dying
declaration the court must be conscious that the dying
declaration was voluntary and further it was recorded
correctly and above all the maker was in a fit
conditionmentally and physicallyto make such
statement.

224. Reference was next made by Mr. A.P. Singh, in the context
of multiple dying declarations, on the decisions of the Supreme
Court rendered in Mohanlal Gangaram Gehani vs. State of
Maharashtra, (1982) 1 SCC 700, Kamla vs. State of Punjab, (1993)
1 SCC 1 and Kundula Bala Subrahmanyam and Anr. vs. State of
Andhra Pradesh, (1993) 2 SCC 684. The aforesaid decisions, in our
view, turn on their own peculiar facts and are of no assistance to Mr.
Singhs clients.
225. In the case of Mohanlal Gangaram Gehani (supra), which
was a case under Section 326 IPC simpliciter, the doctor concerned
had made a note of the injuries received by the complainant in the
note sheet of the hospital register and also mentioned the fact that the
injured had named his assailant as one Tiny or Tony. The evidence
showed that Tiny or Tony was undoubtedly a known person who was

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living in a locality near the place of occurrence and was not a
fictitious red herring as was sought to be made by the prosecution.
Subsequently, the injured alleged that the name of the Appellant was
disclosed to him by his friend Saleem who was present at the spot.
The Court was faced with the piquant situation of having to
disbelieve either the doctor (and the hospital register) or the injured.
In such circumstances, it was held that the reason given by the High
Court for distrusting the evidence of the doctor was wholly
unsustainable and the statement of the injured to the doctor being the
first statement in point of time ought to have been preferred to any
subsequent statement that the injured may have made. Furthermore,
the disclosure made by Saleem (who was now dead) being the source
of information of the injured would be of doubtful admissibility as it
was not covered by Section 32 of the Evidence Act. Further, since
the injured did not know the Appellant before the occurrence and no
Test Identification Parade was held and he was also shown by the
police before he identified the Appellant in Court, his evidence with
regard to identification was absolutely valueless. We are unable to
decipher from this judgment, what Mr. Singh would have us believe
that the law with regard to multiple dying declarations is that the first
statement made by the injured to the doctor must in all cases be
accepted as gospel truth to the exclusion of all subsequent statements
made by the deceased.
226. In the case of Kamla (supra), the deceased gave four dying
declarations not one of which was made before a judicial officer.
Three of the dying declarations were recorded by the doctors and one

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by the police Sub-Inspector. There were glaring inconsistencies
between the four dying declarations as to who exactly poured
kerosene on the victim and had set her on fire or whether she had
caught fire accidently, as stated by her in one of the four dying
declarations. The trial court and the High Court discarded the other
statements and relied upon the statement wherein she implicated only
her mother-in-law. The Supreme Court opined that a dying
declaration should satisfy all the necessary tests and one such
important test is that if there are more than one dying declaration they
should be consistent particularly in material particulars. It was held
that under the circumstances, the dying declarations being
inconsistent, it would be highly unsafe to pick out one statement and
base the conviction of the Appellant on the sole basis of such a
statement. The aforesaid decision also does not come to the aid of the
Appellants as in the instant case there are no such material
inconsistencies between the three dying declarations of the deceased,
two of which have been recorded by highly responsible officers such
as the SDM and the Metropolitan Magistrate.
227. In Kundula Bala Subrahmanyam (supra), relied upon by Mr.
A.P. Singh, two dying declarations were made by the deceased, the
first dying declaration before a neighbour and the second dying
declaration to her brother. Both the dying declarations were oral. In
view of the close relationship of the witnesses to whom they were
made, they were carefully scrutinized and after such scrutiny both the
dying declarations were held to be consistent with each other and to
have been voluntarily made by the deceased in the natural course of

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events. They were opined to have a ring of truth about them. The
Supreme Court held that the prosecution had successfully established
a very crucial piece of circumstantial evidence in the case that the
deceased had voluntarily made the dying declarations implicating
both the Appellants and disclosing the manner in which she had been
put on fire shortly before her death. It was held as under:-
If there are more than one dying declarations then the court
has also to scrutinise all the dying declarations to find out if
each one of these passes the test of being trustworthy. The
Court must further find out whether the different dying
declarations are consistent with each other in material
particulars before accepting and relying upon the same. Having
read the evidence of PWs 1-3 with great care and attention, we
are of the view that their testimony is based on intrinsic truth.
Both the dying declarations are consistent with each other in all
material facts and particulars. That the deceased was in a
proper mental condition to make the dying declarations, or that
they were voluntary has neither been doubted by the defence in
the course of cross-examination of the witnesses nor even in
the course of arguments, both in the High Court and before us.
Both the dying declarations have passed the test of
creditworthiness and they suffer from no infirmity whatsoever.
We have therefore no hesitation to hold that the prosecution
has successfully established a very crucial piece of
circumstantial evidence in the case that the deceased had
voluntarily made the dying declarations implicating both the
appellants and disclosing the manner in which she had been
put on fire shortly before her death. This circumstance,
therefore, has been established by the prosecution beyond
every reasonable doubt by clear and cogent evidence.

228. We are wholly unable to glean from the aforesaid judgment

any dicta which can be of assistance to the defence.
229. Adverting to the contentions of Mr. M.L. Sharma, at the
threshold, Mr. Sharma on behalf of the Appellants Mukesh and
Pawan Kumar Gupta, submitted that Section 167(2) of the Code of
Criminal Procedure envisages that the arrestee is an accused or
accused person against whom there is well-founded information or

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accusation, requiring an investigation in the manner envisaged under
Section 2(h) of the Code. He contended that in the instant case, the
Appellants had been arrested without the collection of evidence
relating to the commission of the offence. The search of the places of
seizure of things considered necessary for the investigation was also
not carried out. For his aforesaid submissions, Mr. Sharma relied
upon the judgment of the Supreme Court rendered in Directorate of
Enforcement v. Deepak Mahajan and Anr., (1994) 3 SCC 440.
230. Reliance was also placed on the aforesaid case by Mr. M.L.
Sharma for explaining the word investigation and in particular on
para 108 of the judgment wherein it is laid down, relying upon the
case of H.S. Rishbud vs. State of Delhi, AIR 1955 SC 196, that under
the Code, investigation consists generally of the following steps:- (i)
Proceeding to the spot, (ii) Ascertainment of the facts and
circumstances of the case, (iii) Discovery and arrest of the suspected
offender, (iv) Collection of evidence relating to the commission of the
offence which may consist of (a) the examination of various persons
(including the accused) and the reduction of their statements into
writing, if the officer thinks fit, (b) the search of places of seizure of
things considered necessary for the investigation and to be produced
at the trial, and (v) Formation of opinion as to whether on the material
collected there is a case to place the accused before a Magistrate for
trial and if so taking the necessary steps for the same by the filing of a
charge sheet under Section 173. Mr.Sharma contended that in the
instant case charge-sheet had been filed without the collection of
evidence relating to the offence and before the completion of

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investigation. To illustrate the aforesaid contention, Mr. Sharma
stated that though the chargesheet in the instant case was filed on
3.1.2013, the same was filed without waiting for the CFSL report
regarding fingerprint examination.
231. We do not find any force in the aforesaid argument of Mr.
Sharma. A bare glance at the report pertaining to fingerprint
examination (Ex.PW46/D) shows that the said report is dated
3.1.2013 and that the report is mentioned at Serial No.50 of the list of
documents enclosed with the chargesheet, meaning thereby that the
CFSL report in respect of fingerprint was filed alongwith the
chargesheet on 3.1.2013. This is also reflected in the order dated
3.1.2013 which shows that the chargesheet was filed on 3.1.2013
before the Duty M.M. at 5:30 PM. Further, the near exhaustive list of
documents enclosed with the chargesheet is also reflective of the fact
that the chargesheet was prepared and filed after collection of
sufficient evidence against the accused persons.
232. Mr. Sharma next contended that the trial proceedings were
vitiated qua the Appellants Mukesh and Pawan Gupta on account of
breach of their fundamental right as guaranteed under Articles 21 and
22 of the Constitution of India of fair trial. He submitted that the
impugned judgment dated 10.9.2013 has been procured by the
prosecution under torture of the accused persons. Reference was
made by him in this regard to the affidavit of one Bhagwan Singh, a
retired Indian soldier lodged in Tihar Jail in January, 2013, who
professed to have witnessed the custodial torture inflicted upon the

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Appellant Mukesh. The said affidavit is stated to have been filed in
W.P.(Crl.) No.516/13 as Annexure P-1.
233. Mr. Sharma also contended that the trial court had caused
serious miscarriage of justice to the Appellants by its failure to record
the true and correct facts and the evidence pertaining thereto. In this
context, reference was made by him to the order of the learned
Additional Sessions Judge dated 18th April, 2013.
234. Assailing the aforesaid order, Mr. Sharma contended that the
learned trial court gravely erred in passing the aforesaid order closing
the cross-examination of PW-59 and PW-65 on the ground of alleged
failure of the counsel to cross-examine the said PWs and further erred
in appointing an amicus curiae to represent the Appellant Mukesh.
He referred to the orders passed by a Full Bench of this Court in
FAO(OS) No.364/11 Weizmann Ltd. v. M.S. Shoes East Ltd. and
Others to urge that on April 9, 2013, April 11, 2013 and April 18,
2013, he was engaged in the aforesaid matter before the Full Bench of
the High Court and submitted that on 11 th April, 2013 the Full Bench
while fixing the hearing on 18th April, 2013 had issued dasti copy of
the order to him (M.L. Sharma) to file it before the trial court to
exempt him from appearance in the trial court on 18.4.2013.
235. Mr. Sharma next contended that when any person is arrested,
he is deprived of his liberty, and the procedure laid down in Clause
(1) of Article 22 of the Constitution must then be followed, and he
must be allowed the right to be defended by a counsel of his
choice. Article 22(1) reads:-

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 No person who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds for such
arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.

236. In the instant case, Mr. Sharma contended that the aforesaid
constitutional right afforded to the Appellants to consult a legal
practitioner of their choice had been infringed and as such the trial
itself qua the Appellants stood vitiated. The learned trial court had no
right to appoint Mr. Rajiv Jain, Advocate as amicus curiae for the
Appellant Mukesh against the wishes of the Appellant himself. The
said amicus curiae had cross-examined the following prosecution
witnesses against the wish of the Appellants:-
Srl.No. For Whom Number of Name Date
PW 2013
1. Mukesh PW-50 Dr.Raj Kumar 22.4.13
Chejara
2. Mukesh PW-52 Dr.P.K.Verma 22.4.13
3. Mukesh PW-54 SI Sushil 20.4.13
Sawariya
4. Mukesh PW-56 Shri Sandeep 22.4.13
Dabral
5. Mukesh PW-58 SI Arvind 20.4.13
6. Mukesh PW-61 SI Jeet Singh 20.4.13
7. Mukesh PW-64 Dr.B.D.Athani 23.4.13
8. Mukesh PW-80 WSI Pratibha 8.7.13
Sharma, IO

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9. Mukesh PW-83 Angad Singh 14.8.13
10. Pawan Kumar Part final
argument

237. Referring to the decision of the Constitution Bench of the

Supreme Court in State of Madhya Pradesh v. Shobharam and
Others 1966 (Suppl) SCR 239, Mr. Sharma contended that the
Constitution Bench had clearly delineated the constitutional right
conferred by Article 22(1) on a person arrested to be defended by a
legal practitioner of his choice as well as one who, though not
arrested, runs the risk of loss of personal liberty as a result of a trial.
He submitted that the Appellant Mukesh had filed an affidavit before
the Sessions Court dated 3.4.2013 [filed in W.P.(Crl.) 516/13] to
contend that the Appellant was under torture compelled to put his
thumb impression on the vakalatnama in favour of Mr. V.K. Anand,
Advocate. Reference was also made by the counsel to five
vakalatnamas in his favour filed at pages 67, 68, 69, 70 and 71 of the
additional grounds of appeal. It was contended by him that he (M.L.
Sharma) was the counsel of the choice of the Appellants, but the
Appellants had been deprived of his services in clear violation of the
constitutional mandate contained in Article 22(1) of the Constitution.
It was also sought to be contended that though he (M.L. Sharma) had
filed a transfer petition in the Supreme Court for transfer of the trial
from Delhi to another State, but when the transfer petition was listed
before the Honble Supreme Court on 23rd January, 2013, Mr. V.K.
Anand, Advocate made a statement that he did not want to get the

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case transferred from Delhi. On 28th January, 2013, the Appellant
Mukesh had signed fresh vakalatnama in his favour and in favour of
N. Raja Raman. However, the same could not be shown by him
(M.L. Sharma) to the Supreme Court on account of the dire threats
extended to the Appellant and his family and as such the transfer
petition was dismissed by the Supreme Court on 29.1.2013. In
March, 2013, the Appellant Mukesh again appointed him, i.e., M.L.
Sharma, Advocate as his counsel, but on 18.4.2013 at the behest of
the prosecution the learned Sessions Judge appointed another
Advocate as amicus curiae against the wishes of the Appellant. On
20th April, 2013, the police again tortured the Appellant Mukesh and
procured his signatures upon a fresh vakalatnama in favour of Mr.
V.K. Anand, Advocate, and the latter was imposed upon the
Appellant Mukesh as his counsel in the trial proceedings against his
wishes. It was further contended that under police torture and
conspiracy hatched in the course of trial, Mr. V.K. Anand, Advocate
succeeded in procuring the statement of the Appellant Mukesh under
Section 313 Cr.P.C. wherein he admitted that he was driving the bus
Ex.P-1 at the relevant time.
238. Reliance was also placed by Mr. M.L. Sharma, Advocate on
the decision of a three-Judge bench of the Supreme Court in Mohd.
Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi) reported in
(2012) 9 SCC 408 to contend that the matter was required to be
remanded for a de novo trial so that justice is secured to the
Appellants. On the strength of this judgment, it was contended that
Section 303 of the Criminal Procedure Code confers a right upon any

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person accused of an offence before a criminal court to be defended
by a pleader of his choice. This right is conferred by the legislature
consequent to the constitutional mandate contained in Article 22(1) of
the Constitution read with Article 39-A of the Constitution, which
articulates the policy of free legal aid to be provided by the State.
Section 304 of the Code further mandates legal aid to the accused at
States expense in a trial before the Court of Session where the
accused is not represented by a pleader and where it appears to the
Court that the accused has not sufficient means to engage a pleader.
The Appellants having been denied due process of law and the trial
held against them being contrary to the procedure prescribed under
the provisions of the Code, the re-trial of the Appellants in the
circumstances is indispensable.
239. Mr. M.L. Sharma also heavily relied upon the judgment of the
Honble Supreme Court rendered in Mohd. Ajmal Amir Kasab v.
State of Maharashtra, (2012) 9 SCC 1 to contend that the State is
under a constitutional obligation to provide free legal services to an
indigent accused such as the Appellant not only at the stage of trial
but also at the stage when he is first produced before the Magistrate as
also when he is remanded from time to time, provided the accused
person does not object to the provision of State lawyer. Specific
reliance was placed by Mr. Sharma on the following observations
made in Khatri (2) v. State of Bihar, (1981) 1 SCC 627 quoted in
paragraph 470 and 472 of the judgment in Mohd. Ajmal Amir Kasab
(supra). The said paragraphs read as under:- (SCC, page 185)

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 470. In para 6 of the judgment, this Court further said: [Khatri
(2) case [(1981) 1 SCC 627 : 1981 SCC (Cri) 228], SCC p. 632,
para 6]

6. But even this right to free legal services would be

illusory for an indigent accused unless the Magistrate or
the Sessions Judge before whom he is produced informs
him of such right. The Magistrate or the Sessions
Judge before whom the accused appears must be held to
be under an obligation to inform the accused that if he is
unable to engage the services of a lawyer on account of
poverty or indigence, he is entitled to obtain free legal
services at the cost of the State. We would, therefore,
direct the Magistrates and Sessions Judges in the country
to inform every accused who appears before them and
who is not represented by a lawyer on account of his
poverty or indigence that he is entitled to free legal
services at the cost of the State. Unless he is not willing to
take advantage of the free legal services provided by the
State, he must be provided legal representation at the
cost of the State.
(emphasis added)

471. x x x x x x x

472. As noted in Khatri (2) [(1981) 1 SCC 627 : 1981 SCC

(Cri) 228] as far back as in 1981, a person arrested needs a
lawyer at the stage of his first production before the Magistrate,
to resist remand to police or jail custody and to apply for bail.
He would need a lawyer when the charge-sheet is submitted
and the Magistrate applies his mind to the charge-sheet with a
view to determine the future course of proceedings. He would
need a lawyer at the stage of framing of charges against him
and he would, of course, need a lawyer to defend him in trial.

240. It was next contended by Mr. M.L. Sharma on behalf of the

Appellants that denial of liberty to the Appellants to cross-examine
the Investigating Officer through a counsel of their own choice
tantamounted to denying opportunity to the defence to test the
veracity of the prosecution case and its witnesses. In this context, he
referred to the judgment of a Division Bench of the Patna High Court
in Hazari Choubey and Ors. v. State of Bihar, 1988 Crl. Law

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Journal 1390 (Patna). In the said case, while setting aside the
conviction of the Appellants and acquitting the Appellants of the
charges levelled against them under Sections 395 of the Indian Penal
Code, the Patna High Court held that since non-examination of the
Investigating Officer had denied to the defence opportunity to test the
veracity of the prosecution case and the veracity of the evidence of
the prosecution witnesses, their conviction for the offence under
Section 395 of the Indian Penal Code by the learned Sessions Judge
was not sustainable. Re-trial after a lapse of 8 years would amount to
miscarriage of justice as the right to speedy and public trial was
enshrined in Article 21 of the Constitution.
241. On a conspectus of the above, we find that Mr. M.L. Sharma
has raised the following issues in respect of the right to legal
defence insofar as the aforesaid two accused whom he represents
are concerned:-
A. Whether his clients were entitled to be defended by a
counsel of their choice and whether in fact were defended
by a counsel of their choice?
B. Whether the amicus curiae appointed by the learned trial
court had cross-examined any of the prosecution witnesses
on behalf of the said accused persons and the legality
thereof?
C. Legal position with respect to Section 309 Cr.P.C.
242. In order to satisfy ourselves that the accused persons in the
present case were defended by counsel of their choice and also
had recourse to legal aid at all stages of the trial, we have

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carefully examined the trial court record with the assistance of
Mr. Dayan Krishnan, learned Special Public Prosecutor. The
record chronologically reveals the following:-
(1) The charge sheet was filed on 03.01.2013 before the
Duty M.M., Saket Sh.S.M. Grover at 5:30 PM.
(2) On 06.01.2013, accused Pawan Kumar, Vinay
Sharma, Ram Singh and Mukesh were produced
before the Duty M.M./Saket Jyoti Kler. Ms. Anurag
Rita, learned counsel from legal aid was present. The
learned M.M. has noted in the proceedings that all
the accused persons were informed that they can
seek legal aid from the State if they have not yet
engaged any counsel. Accused Ram Singh and Mukesh
submitted that they had not yet engaged a counsel and
may be provided legal aid. Accordingly, Ms. Anurag
Rita was provided as legal aid counsel to them. Accused
Pawan Kumar @ Kalu and accused Vinay Sharma
refused to take services of legal aid counsel and
submitted that they want to become witnesses on behalf
of the State. (Vide order dated 06.01.2013)
(3) On 07.01.2013, all the accused persons were produced
before the learned ACMM, where they were again
informed by the Court that they have a right of legal
assistance and they have a right to be defended by legal
counsel of their choice. Accused persons sought time to
arrange for counsel. In any event, Ms. Anurag Rita was

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 present for their legal assistance. The matter was then
listed for 10.01.2013 in order to give them time to
arrange counsel for themselves. (Vide order dated
07.01.2013)
(4) On 10.01.2013, all the accused persons were produced
from judicial custody and private counsel for each
accused of their choice were present in the Court as
reflected by the order sheet. Ms. Anurag Rita, LAC was
also present in the Court to watch the interest of the
accused persons. (Vide order dated 10.01.2013)
(5) On 14.01.2013, all the accused persons were present and
represented by private counsel of their choice and
applications were filed on behalf of all the accused
persons by their respective counsel for the supply of
deficient copies. Mr. M.L. Sharma was present on behalf
of accused Mukesh. (Vide order dated 14.01.2013)
(6) On 17.01.2013, a fresh vakalatnama was filed by Mr.
M.L. Sharma on behalf of accused Mukesh. The matter
was committed to the Sessions Court. (Vide order dated
17.01.2013)
(7) On 21.01.2013, the matter came up before the Sessions
Court. Mr. M.L. Sharma appeared on behalf of accused
Mukesh and the matter was listed for arguments on
charge for 24.01.2013. (Vide order dated 21.01.2013)
(8) On 23.01.2013, the Honble Supreme Court passed
orders in Transfer Petition (Criminal No.D-2322 of

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 2013) wherein the learned Sessions Judge was
directed, inter alia, to give a report on the
following:
(d) to determine from accused Mukesh as
to his choice of Advocate; (e) whether accused
Mukesh would like to continue with Shri M.
Rajaraman as his Advocate-on-Record in his
Transfer Petition; (f) to find out if he has any
complaint with regard to the manner in which he
has been treated in custody.
(9) On 24.01.2013, in compliance with the orders of the
Honble Supreme Court dated 23.01.2013, all the
accused persons were produced before the learned
Sessions Judge in his chamber to ascertain whether they
were represented by counsel of their choice. Accused
Mukesh was also produced in the chamber to ascertain
his choice of counsel. He stated that earlier he had
appointed Shri Manohar Lal Sharma, Advocate vide
vakalatnamas dated 08.01.2013 and 09.01.2013 but
now would like to change his counsel and has
appointed Mr. V.K. Anand, Advocate as his counsel
before the court. The vakalatnama of Mr. V.K. Anand,
Advocate was filed by him. Shri Manohar Lal Sharma,
Advocate was accordingly discharged by the learned
Sessions Judge. The accused Mukesh informed the
learned Sessions Judge that he did not intend to avail

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 the services of Shri N. Rajaraman, Advocate-on-
Record in the Transfer Petition pending before the
Honble Supreme Court and that he had requested
Shri V.K. Anand, Advocate to be his counsel even in
the Supreme Court and to engage some other
Advocate-on-Record. The learned Sessions Judge also
inquired from accused Mukesh if he has any
complaint regarding the manner in which he has been
treated in custody but he replied that he has no
complaint in this regard. The learned Sessions Judge
noted that questions to accused Mukesh had been put in
Hindi language to make him understand as to why he
should answer them. The statement of accused Mukesh
was also separately recorded in this regard. It may be
relevant to point out that in respect of accused Pawan
Gupta, Mr. Sada Shiv Gupta, Advocate and Mr. Vivek
Sharma, Advocate appeared to defend him in the trial
and he executed vakalatnama dated 08.01.2013 in their
favour. Mr. Sada Shiv Gupta, Advocate continued to
appear for accused Pawan throughout the trial and even
before the High Court. (Vide order dated 24.01.2013)
(10) On 5th February, 2013, the date on which copies of
the supplementary charge sheet and CD of E-challan
were filed and handed over to learned counsel for all
the accused persons, an application was filed for
recording of the evidence by way of audio-video

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 electronic means on behalf of accused Ram Singh and
accused Mukesh in the interest of fair trial. While
disposing of the said application, the learned Sessions
Court specifically noted:
The crux of the arguments is that the application
needs to be allowed for the fair trial of the
accused. I do not understand as to why the
learned defence counsel is so apprehensive that
the accused may not get fair trial. All accused
are represented by the counsels of their
choice.

(11) On 14.03.2013, fresh vakalatnama was filed by Shri

Ram Kumar, Advocate on behalf of accused Pawan
Gupta.
(12) On 20.03.2013, a fresh vakaltnama was filed by Mr.
M.L. Sharma, Advocate on behalf of accused Mukesh
and accused Akshay Kumar Thakur which was taken on
record. (Vide order dated 20.03.2013)
(13) On 21.03.2013, the cross-examination of PW-56 Shri
Sandeep Dabral was deferred at the request of Mr. M.L.
Sharma. The cross-examination of PW-57 ASI Kapil
Singh, PW-58 SI Arvind Kumar, PW-59 Inspector Raj
Kumari and PW-60 H.C. Mahabir was also deferred at
the request of the accused persons. (Vide order dated
21.03.2013)
(14) On 22.03.2013, the cross-examination of PW-62 SI
Mahesh Bhargava was deferred on behalf of accused

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 Mukesh and Akshay by Advocate, Shri M.L. Sharma.
(Vide order dated 22.03.2013)
(15) On 23.03.2013, a request was made by Mr. M.L. Sharma,
Advocate that he be allowed to have meetings with the
accused persons in the jail, which request was allowed,
subject to the rules. (Vide order dated 23.03.2013)
(16) On 25.03.2013, PW-62 S.I. Mahesh Bhargava was
tendered for cross-examination but Mr. M.L. Sharma,
Advocate submitted that he would only cross-examine
the witness after his application under Chapter 23
Cr.P.C. was heard and decided. Accordingly, the matter
was listed on 26.03.2013 for arguments. (Vide order
dated 25.03.2013)
(17) On 26.03.2013, the learned Sessions Judge heard
arguments on the application on behalf of the accused
Mukesh on the issue that hearing should take place on
alternate days among other reliefs. The matter was then
directed to be put up for 28.03.2013. (Vide order dated
26.03.2013)
(18) On 28.03.2013, the aforesaid application moved by Mr.
M.L. Sharma, Advocate was dismissed. However, at
12:30 PM, when the trial began, Mr. M.L. Sharma was
not present and the matter was posted for 2 PM. At 2
PM, again he was not present, and it is noted by the
learned Sessions Judge that the MHC(M) of P.S. Vasant
Vihar informed the Court that he had received a message

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 on his phone from Shri M.L. Sharma that he was not
well. The learned Sessions Judge further noted that none
of his associates, i.e., Ms. Suman, Advocate, Shri J.P.
Mishra, Advocate and Shri Jitender Vidyarthi, Advocate
who had also signed the vakalatnama filed on 19.03.2013
were present. Further, Mr. A.P. Singh, Advocate on
behalf of accused Vinay informed the Court that Mr.
M.L. Sharma was present in Patiala House Court in case
FIR No.414/12. It was further noted by the court that
though the court was empowered by the fourth proviso to
sub-section (2) of Section 309 IPC to dispense with the
cross-examination of the witnesses present in the Court
in view of the unexplained absence of the counsel, but in
the interest of justice one more opportunity was given to
Mr. M.L. Sharma and cross-examination of PW-64 Dr.
B.D. Athani and PW-65 Constable Kirpal was deferred
to 01.04.2013. The Court also directed that the accused
persons be brought to Court at 11 AM everyday. (Vide
order dated 28.03.2013)
(19) On 01.04.2013, whereas the other counsel cross-
examined the witnesses present in the Court, Mr. M.L.
Sharma did not cross-examine the witnesses stating that
he was not able to do so due to his ill-health. He also
moved an application seeking adjournment of the matter
on the ground that he intends to file a revision petition
against the order dated 28.03.2013, which was dismissed

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 and the matter was posted to 02.04.2013 for the cross-
examination of PW-48, PW-62, PW-63 on behalf of
accused Mukesh and accused Akshay. The other
counsels had completed their cross-examination with
respect to these witnesses. (Order dated 01.04.2013)
(20) On 02.04.2013, Mr. M.L. Sharma made several excuses
for not conducting the cross-examination, inter alia,
being that he is not able to take instructions from his
clients to cross-examine the witnesses, as is evident from
a bare perusal of the said order sheet. The learned trial
court observed that from 20.03.2013 ever since M.L.
Sharma has filed his vakalatama he has not cross-
examined a single witness. The matter was also listed
on 21.03.2013, 22.03.2013, 23.03.2013, 25.03.2013,
26.03.2013, 28.03.2013 and 01.04.2013, on all of which
days the accused persons were present in Court and
were available to the learned counsel to seek
instructions. Thereafter, part cross-examination was
done. (Vide order dated 02.04.2013)
(21) On 04.04.2013, Mr. A.P. Singh, Advocate who was
initially representing accused Akshay and had been
replaced by Mr. M.L. Sharma filed a fresh vakalatnama
on behalf of accused Akshay Thakur. (Vide order dated
04.04.2013)
(22) On 05.04.2013, Mr. M.L. Sharma makes submission to
the Court which is recorded in the order that he would

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 not be available on 06.04.2013 and the Presiding Officer
should also, therefore, take leave. (Vide order dated
05.04.2013)
(23) On 08.04.2013, only one witness was cross-examined by
Mr. M.L. Sharma as he stated that he had not prepared to
cross-examine the other witness present in the Court.
(Vide order dated 08.04.2013)
(24) On 09.04.2013, PW-60 was cross-examined on behalf of
the other accused persons but his cross-examination on
behalf of accused Mukesh was deferred as his counsel
was not available. (Vide order dated 09.04.2013)
(25) On 10.04.2013, the matter was listed for 12:30 PM for
Mr. M.L. Sharma, Advocate to cross-examine PW-55
and PW-65 but he did not appear. The matter was then
posted for 2 PM. Mr. M.L. Sharma then cross-examined
PW-55 but thereafter stated that he has a matter on
11.04.2013 before the High Court and he cannot appear.
The Court then passes an order that Mr. M.L. Sharma
can cross-examine the witness from 12:30 to 1:30 PM on
11.04.2013 to accommodate him on his request. (Vide
order dated 10.04.2013)
(26) On 11.04.2013, Mr. M.L. Sharma, Advocate failed to
appear at 12:30 PM and on the matter being posted for 2
PM, he again failed to appear. The learned trial court,
however, adjourned the matter to 12.04.2013. (Vide
order dated 11.04.2013)

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 (27) On 16.04.2013, Mr. M.L. Sharma was again absent and
the learned trial court passed a detailed order expressing
its anguish, but deferred the cross-examination of the
witnesses present in the Court to 17.04.2013. (Vide order
dated 16.04.2013)
(28) On 17.04.2013 also, counsel for accused Mukesh, Mr.
M.L. Sharma was absent and claimed through Mr. Vivek
Sharma, Advocate that he was held up in the Supreme
Court in the transfer petition of the present case. The
matter was then adjourned by the learned trial court to
18th April, 2013 after discharging the witnesses present
in the Court and granting last opportunity to Mr. M.L.
Sharma, Advocate to cross-examine PW-59 W/Inspector
Raj Kumari, who, it was noted, was appearing before the
Court on a daily basis. (Vide order dated 17.04.2013)
(29) On 18.04.2013, Mr. M.L. Sharma was again absent.
The Court then passed a detailed order keeping in mind
the provisions of Section 309 Cr.P.C. and appointing an
amicus in order to assist the Court in complying with
its obligations under Section 309 Cr.P.C.
It is relevant to note that the Court did not
discharge Mr. M.L. Sharma. The said order being
apposite is reproduced hereunder:-
18-4-2013 (12:45 PM)

Shri M.L Sharma, Ld. Counsel for accused

Mukesh has appeared and has filed an application
seeking adjournment saying that he is busy in the

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 Hon'ble High Court of Delhi. He has been requested
to appear at 2 PM.
Sd/-
(Yogesh Khanna)
ASJ(Special Fast Track Court),
Saket Courts, New Delhi
18-04-2013

Matter called at 2 PM.

PW 59 Inspector Raj Kumari and PW65 Ct. Kripal

are present for their cross examination on behalf of
accused Mukesh but neither Shri M.L Sharma, Ld.
Counsel for accused Mukesh nor his associate is present.

In the order dated 28-3-2013, I had

specifically quoted the 4 t h proviso of sub-section 2
of section 309 Cr.P.C which empowers the court to
dispense with the cross examination of the witnesses
in the absence of the counsel, but on that day, despite
the absence of Shri M.L Sharma, Advocate, one more
opportunity, in the interest of justice, was granted to
him to cross examine the witnesses. Even on 16-4-
2013, witness PW59 W/Inspector Raj Kumari and
PW65 Ct. Kripal were present for their cross
examination, but Shri M.L Sharma, Advocate did not
appear. The fact that he has been seeking
adjournments has been elaborately mentioned in my
order dated 16-4-2013. Yet again he did not appear on
17-4-2013 nor sent any of his associate(s) to inform
about him. Today also, instead of cross examining
PW59 and PW65, he had appeared at 12:45 PM,
despite the matter being already listed at 2 PM and
had filed an application for adjournment and thereafter
left the court, despite being asked to appear at 2 PM.

It is 2 PM. Witnesses PW59 Inspector Raj Kumari

and PW65 Ct. Kripal are present for their cross
examination.

The application filed by Shri M.L Sharma,

Advocate seeking adjournment on the plea that he is
busy in another court, can not be allowed in view of
Clause-b of 4th proviso of subsection 2 of section
309 Cr.P.0 which says the engagement of the
pleader of a party in another court, shall not be a
ground for adjournment. Further Clause -c of the
said proviso to sub section 2 of section 309 Cr.P.0
says that where a witness is present in the court

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 but a party or his pleader is not present or if present
not inclined to cross examine the witnesses, the court
may, if it thinks fit, record the statement of the
witnesses and pass such orders as it thinks fit
dispensing with the examination in chief or cross
examination of the witnesses, as the case may be.

Opportunities have since been granted to Shri

M.L Sharma, Ld. Counsel for accused Mukesh for
cross examining these two witnesses, appearing
practically, everyday since examined in chief so no
further adjournment can be granted to Shri M.L
Sharma, Advocate to cross examine the present
witnesses.

I have also perused the deposition of PW59

Inspector Raj Kumari, who on 16-12-2009 on
information, had visited Safdarjung Hospital, New
Delhi and had collected the MLC and exhibits of the
prosecutrix and then handed it over to the
Investigating Officer. She has already been
extensively cross examined by the Id counsels for
other three accused person.

Likewise PW65 Ct. Kripal had taken the Rukka to

the police station and had got the FIR registered, has also
been cross examined by the Id counsels for the other
accused person.

So, considering the nature of the evidence

given by these two witnesses, being general and also
considering the fact that these witnesses have already
been extensively cross examined by the Id counsels for
other accused person and also taking in view the fact that
Shri M.L Sharma, Advocate is not present to cross
examine these witnesses on behalf of accused Mukesh,
the witnesses cannot be asked to come again. Thus,
considering the above facts I think it fit to dispense with
further cross examination of PW59 and PW65. Hence,
their cross examination on behalf of accused Mukesh
stands closed.

I had inquired from accused Mukesh yesterday if he

intends to have any other lawyer from Delhi Legal
Services Authority (DLSA) but he replied in negative.

Looking at the fact that Shri M.L Sharma,

Advocate is not appearing regularly and that since the
trial is being conducted on day to day basis, I feel it

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 appropriate to appoint an Amicus Curiae to assist the
court in future, in case such situation arises.

Hence, I deem it fit to appoint Shri Rajeev Jain,

Advocate, Saket Court Complex, New Delhi, as an
Amicus Curiae to assist the court in future. He has
appeared today. The copy of the charge sheet and all
connected documents, including the evidence so
recorded till date, be handed over to Ld. Amicus Curiae to
assist the court, during the course of
trial.

Matter is adjourned and now shall be taken up on

20-4-2013 at 10:30 AM. Dasti.

(30) On 20.04.2013, the matter was fixed for 10:30 AM, but
counsel Mr. M.L. Sharma, Advocate did not appear at all
and in exercise of the powers conferred upon the Court
under section 309 Cr.P.C., the learned trial court with the
assistance of Shri Rajiv Jain, Advocate appointed as
amicus curiae, proceeded with the court examination of
witnesses. At this stage, accused Mukesh filed an
application bearing his signatures and thumb impression,
stating that he intends to change his counsel and wishes
to engage Shri Rajiv Jain, Advocate as his counsel. The
court thereupon enquired as to whether accused Mukesh
was doing so voluntarily and on being satisfied, PW-61
Jeet Singh, PW-54 Sushil Sawariya and PW-58 SI
Arvind were cross-examined on behalf of accused
Mukesh and the Court discharged Mr. M.L. Sharma.
(Vide order dated 20.04.2013)
(31) On 23.04.2013, Mr. V.K. Anand, Advocate filed
vakalatnama on behalf of accused Mukesh in his

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 presence and henceforth accused Mukesh was
represented by Shri V.K. Anand, Advocate before the
learned trial court as well as initially before the High
Court. (Vide order dated 23.04.2013).
243. The above-mentioned chronological sequence of events
makes it amply clear that the accused were represented by
counsel of their choice at every stage including accused
Mukesh.
244. The judgment in the case of State of MP vs. Shobha Ram
(supra) relied upon by Mr. Sharma, thus has no relevance to the facts
of the present case, inasmuch as the record clearly bespeaks of the
fact that the accused were represented by counsel of their choice
throughout. Even otherwise, we find that Shobha Ram is rendered in
the context of MP Panchayats Act which barred legal representation,
and this fact is explained by the learned Chief Justice in the very
beginning of the judgment by stating that this will have no relevance
to the Code in as much as the Code in any case provides for legal
representation to an accused person. As regards the reliance placed
upon the judgment in the Kasab case (supra), and the emphasis laid
by the counsel for the defence on the observations made by the
Supreme Court to claim that the Supreme Court has laid down very
strict guidelines in respect of criminal trials, we find that firstly, there
has been no aberration of any kind in the present case and secondly,
Mr.Sharma has not been able to point out to us or show any prejudice
caused to the accused in the course of the trial. In such circumstances
and where the record bespeaks of the thorough manner in which the

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prosecution witnesses have been examined, we have no hesitation in
holding that the defence had effective and adequate legal
representation at every stage of the trial and in any event no
prejudice is shown to have been caused to the accused persons
despite the habitual non-attendance of the counsel engaged by the
accused themselves from time to time.
245. As noted hereinabove, Mr. M.L. Sharma, learned counsel for
accused Mukesh and Pawan in the additional grounds of appeal filed
by him has made a submission relying on a table that the amicus
curiae had cross-examined various witnesses on behalf of accused
Mukesh and accused Pawan when he was not the counsel of their
choice. The submission of Mr. Dayan Krishnan, learned Special
Public Prosecutor is that this is contrary to the record, inasmuch as
the examination of the witnesses was done by the Court in terms of
Section 309 Cr.P.C. albeit with the assistance of the amicus as is
evident from each of these depositions. Reference in particular was
made by the learned SPP to order dated 20.04.2013 to urge that when
after being absent for a number of days, as indicated therein, Mr.
M.L. Sharma continued to remain absent, the Court in exercise of its
powers under Section 309 Cr.P.C., with the assistance of the amicus
proceeded with the court examination of the witnesses. Mr. Krishnan
was at great pains to point out that on the very same day, i.e., on
20.04.2013 accused Mukesh moved an application seeking Rajiv Jain
as his Advocate. The contention of Mr. Sharma that the examination
of witnesses on behalf of accused Mukesh by Mr. Rajiv Jain on

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22.04.2013 and 23.04.2013 was not conducted by counsel of his
choice, therefore, has no substance.
246. In respect of accused Pawan, the learned Special Public
Prosecutor submitted that the proceedings of the learned trial court
dated 08.07.2013 clearly record the reasons why court examination of
the I.O. (PW-80 S.I. Pratibha Sharma) was conducted. The order
dated 08.07.2013 also clearly shows that the Court had conducted the
court examination of PW-80 with the assistance of the amicus
exercising powers under Section 309 Cr.P.C. Likewise, regarding
PW-83 Angad Singh, the proceedings of the learned trial court dated
14.08.2013 clearly record the reasons why court examination of the
said witness was conducted. On the said date, i.e., on 14.08.2013
also, the Court conducted the court examination with the assistance of
the amicus exercising powers under Section 309 Cr.P.C. Regarding
the fact that part arguments on behalf of accused Pawan were
addressed by the amicus on 31.08.2013, learned Special Public
Prosecutor submitted that the record shows that full opportunity was
nevertheless given to Mr. Vivek Sharma, learned counsel for accused
Pawan to argue the case on 2nd September, 2013, which is reflected in
the order sheet of the said date and hence the contention of Mr. M.L.
Sharma that part arguments on behalf of accused Pawan were
addressed by the amicus is meaningless.
247. In the context of the table filed by Mr. M.L. Sharma, learned
counsel for accused Mukesh and Pawan to contend that at the behest
of the State the learned trial court imposed Shri Rajiv Jain as amicus

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curiae upon the Appellant Mukesh against his wishes, we find from
the record that the factual position is as follows:-
PW-54 S.I. Sushil, PW-58 S.I. Arvind and PW-61
S.I. Jeet Singh were examined by the Court under
Section 309 Cr.P.C. with the assistance of the amicus
on 20th April, 2013 on behalf of accused Mukesh. On
22nd April, 2013 on behalf of accused Mukesh, PW-50
Dr. Raj Kumar Chejara, PW-52 Dr. P.K. Verma and
PW-56 Shri Sandeep Dabral were examined by the
legal aid counsel appointed on the asking of accused
Mukesh. On 23.04.2013, PW-64 Dr. B.D. Athani was
cross-examined by the same legal aid counsel
appointed at the behest of accused Mukesh. On behalf
of accused Pawan, PW-80 S.I. Pratibha Sharma was
examined on 8th July, 2013 by the Court in exercise of
the powers conferred upon it under Section 309 Cr.P.C.
Likewise, on 14.08.2013, PW-83 Angad Singh was
examined on behalf of accused Mukesh and Pawan by
the Court in exercise of its powers under Section 309
Cr.P.C. As regards part arguments addressed by the
amicus on behalf of accused Pawan, as noted above, on
account of the non-availability of Mr. Vivek Sharma,
Advocate on 31st August the amicus curiae initiated the
arguments. However, on 2nd September, 2013, the
matter was fully argued on behalf of accused Pawan by
his counsel Shri Vivek Sharma, Advocate and thus the

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 partial address made by the amicus curiae on 31st
August, 2013 was rendered meaningless.
248. It is now proposed to examine the legality of the cross-
examination of certain witnesses adverted to hereinbefore by the
Court in exercise of its powers under Section 309 Cr.P.C.
249. In State of U.P. vs. Shambhu Nath Singh, (2001) 4 SCC 667,
the Supreme Court has laid down clear guidelines to trial court to
ensure strict implementation to Section 309 Cr.P.C. as follows:-
(SCC, page 673)

12. Thus, the legal position is that once examination of

witnesses started, the court has to continue the trial from day to
day until all witnesses in attendance have been examined
(except those whom the party has given up). The court has to
record reasons for deviating from the said course. Even that is
forbidden when witnesses are present in court, as the
requirement then is that the court has to examine them. Only if
there are special reasons, which reasons should find a place
in the order for adjournment, that alone can confer jurisdiction
on the court to adjourn the case without examination of
witnesses who are present in court.

13. Now, we are distressed to note that it is almost a common

practice and regular occurrence that trial courts flout the said
command with impunity. Even when witnesses are present,
cases are adjourned on far less serious reasons or even on
flippant grounds. Adjournments are granted even in such
situations on the mere asking for it. Quite often such
adjournments are granted to suit the convenience of the
advocate concerned. We make it clear that the legislature
has frowned at granting adjournments on that ground. At
any rate inconvenience of an advocate is not a special
reason for bypassing the mandate of Section 309 of the
Code.

14. If any court finds that the day-to-day examination of

witnesses mandated by the legislature cannot be complied with

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 due to the non-cooperation of the accused or his counsel the
court can adopt any of the measures indicated in the sub-
section i.e. remanding the accused to custody or imposing cost
on the party who wants such adjournments (the cost must be
commensurate with the loss suffered by the witnesses,
including the expenses to attend the court). Another option is,
when the accused is absent and the witness is present to be
examined, the court can cancel his bail, if he is on bail (unless
an application is made on his behalf seeking permission for his
counsel to proceed to examine the witnesses present even in
his absence provided the accused gives an undertaking in
writing that he would not dispute his identity as the particular
accused in the case).
.

18. It is no justification to glide on any alibi by blaming the

infrastructure for skirting the legislative mandates embalmed in
Section 309 of the Code. A judicious judicial officer who is
committed to his work could manage with the existing
infrastructure for complying with such legislative mandates. The
precept in the old homily that a lazy workman always blames
his tools, is the only answer to those indolent judicial officers
who find fault with the defects in the system and the
imperfections of the existing infrastructure for their tardiness in
coping with such directions.

250. Recently, in Akil vs. State (NCT of Delhi), (2013) 7 SCC 125,
the Honble Supreme Court noting that one of the most material
witnesses viz., PW-20 was examined-in-chief on 18.09.2000 and was
cross-examined after two months, i.e., on 18.11.2000, solely at the
instance of the Appellants counsel on the simple ground that the
counsel was engaged in some other matter in the High Court, rued the
impropriety of such delay used by the Appellant to induce PW-20 to
resile from his stand and change his testimony, exonerating the
Appellant, and the fact that the adjournment granted by the trial court
at the relevant point of time disclosed that the Court was oblivious of

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the specific stipulation contained in Section 309 Cr.P.C. In paragraph
43 of its judgment, the Supreme Court observed:- (SCC, page 149)
43. It is unfortunate that in spite of the specific directions
issued by this Court and reminded once again in Shambhu
Nath [State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC
667 : 2001 SCC (Cri) 798] such recalcitrant approach was
being made by the trial court unmindful of the adverse
serious consequences flowing therefrom affecting the
society at large. Therefore, even while disposing of this appeal
by confirming the conviction and sentence imposed on the
appellant by the learned trial Judge, as confirmed by the
impugned judgment of the High Court, we direct the Registry
to forward a copy of this decision to all the High Courts to
specifically follow the instructions issued by this Court in
the decision in Raj Deo Sharma [(1998) 7 SCC 507 : 1998
SCC (Cri) 1692 : 1998 Cri LJ 4596] and reiterated in Shambhu
Nath [State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC
667 : 2001 SCC (Cri) 798] by issuing appropriate circular, if
already not issued. If such circular has already been issued,
as directed, ensure that such directions are scrupulously
followed by the trial courts without providing scope for any
deviation in following the procedure prescribed in the matter of
a trial of sessions cases as well as other cases as provided
under Section 309 CrPC. In this respect, the High Courts will
also be well advised to use their machinery in the respective
State Judicial Academy to achieve the desired result.

251. In Lt. Col. S.J. Chaudhary v. State (Delhi

Administration), AIR 1984 SC 618 = (1984) 1 SCC 722, it was held
that:-
It is most expedient that the trial before the Court of Session
should proceed and be dealt with continuously from its
inception to its finish. Not only will it result in expedition, it will
also result in the elimination of manoeuvre and mischief. It will
be in the interest of both the prosecution and the defence that
the trial proceeds from day-to-day. It is necessary to realise that
Sessions cases must not be tried piece-meal. Once
the trial commences, except for a very pressing reason which
makes an adjournment inevitable, it must proceed de die in
diem until the trial is concluded.

252. In Mohd. Khalid v. State of West Bengal, (2002) 7 SCC 334,

the Supreme Court held that when a witness is available and his

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examination-in-chief is over, unless compelling reasons are there, the
trial Court should not adjourn the matter on the mere asking. While
deciding the said case, the court placed great emphasis on the
provisions of Section 309 Code of Criminal Procedure and reliance
on its earlier judgments in Shambhu Nath Singh (Supra) and N.G.
Dastane v. Shrikant S. Shivde, (2001) 6 SCC 135. In the Shambhu
Nath Singh case, the Court deprecated the practice of the courts
adjourning the cases without examination of witnesses when they are
in attendance. In N.G. Dastane case (Supra), it was observed by the
Court that the trial court should realize that witnesses are responsible
citizens who have other work to attend to for eking out a livelihood,
and they cannot be told to come again and again just to suit the
convenience of the advocate concerned. It was further observed that
seeking adjournments for postponing the examination of witnesses,
who are present in Court even without making other arrangement for
examining such witnesses amounts to dereliction of an advocates
duty to the Court as that would cause much harassment and hardship
to the witnesses. Tactics of filibuster, if adopted by an advocate, is
also a professional misconduct.
253. In view of the aforesaid enunciation of the law, this Court has
no hesitation in holding that given the habitual absence of Mr. M.L.
Sharma, learned counsel for the accused Mukesh, as delineated
above, and his refusal to cross-examine the witnesses despite repeated
adjournments granted to him for the aforesaid purpose, the learned
trial court was left with no option except to exercise the powers
vested in it under Section 309 Cr.P.C. It is relevant to point out that

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the judgment of the Supreme Court in Akil (supra) was passed on
06.12.2012 which was circulated to all the High Courts to ensure
strict compliance by the trial courts of the instructions issued by the
Supreme Court in Shambhu Nath Singh (supra) without providing
scope for any deviation as provided under Section 309 Cr.P.C. The
learned trial Judge in the circumstances had two options:-
(a) To remain oblivious of the aforesaid judgments of the
Supreme Court and the directions of the High Court and
to sweep them aside, and
(b) To follow the mandate of the law by examining the
witnesses himself as laid down in Section 309 Cr.P.C.
254. We, therefore, cannot fault the learned trial Judge in
adopting the latter course. The inevitable corollary is that we
reject the contention of Mr. M.L. Sharma, Advocate that the
learned Sessions Judge had no authority in law to examine the
witnesses with the assistance of the amicus as was done by him in
the instant case in respect of the witnesses enumerated above.
The course of action followed by the learned trial court, we find,
was strictly in accordance with Section 309 Cr.P.C. and was the
only correct approach given the circumstances of the case.
255. Mr. Sharma next contended that non-adherence to the
provisos to sub-section (1) of Section 154 is fatal to the case of
the prosecution in that the statement of the prosecutrix should
have been videographed and recorded by a lady officer. We deem
it appropriate to refer to sub-section (1) of Section 154 and the
provisos thereto, which read as under:-

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 154. Information in cognizable cases (1) Every information
relating to the commission of a cognizable offence, if given
orally to an officer in charge of a police station, shall be reduced
to writing by him or under his direction, and be read over to the
informant; and every such information, whether given in writing
or reduced to writing as aforesaid, shall be signed by the person
giving it, and the substance thereof shall be entered in a book to
be kept by such officer in such form as the State Government
may prescribe in this behalf.

Provided that if the information is given by the woman

against whom an offence under section 326A, section
326B, section 354, section 354A, section 354B, section
354C, section 354D, section 376, section 376A, section
376B, section 376C, section 376D, section 376E or
section 509 of the Indian Penal Code (45 of 1860) is
alleged to have been committed or attempted, then such
information shall be recorded, by a woman police officer
or any woman officer:

Provided further that

(a) in the event that the person against whom an

offence under section 354, section 354A, section
354B, section 354C, section 354D, Section 376,
Section 376A, Section 376B, Section 376C,
Section 376D, Section 376E or Section 509 of
the Indian Penal Code is alleged to have been
committed or attempted, is temporarily or
permanently mentally or physically disabled, then
such information shall be recorded by a police
officer, at the residence of the person seeking to
report such offence or at a convenient place of
such person's choice, in the presence of an
interpreter or a special educator, as the case
may be;

(b) the recording of such information may be

videographed;

(c) thepolice officer shall get the statement of the

person recorded by a Judicial Magistrate under
Clause (a) of sub-section (5A) of section 164 as
soon as possible.

256. At the outset, we note that both the provisos to sub-section

(1) were inserted in the Code of Criminal Procedure by the

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Criminal Law (Amendment) Act, 2013 (Act No.13 of 2013) with
effect from 03.02.2013 and the charge sheet in the instant case
was filed on 03.01.2013. Therefore, the provisos to Section 154
Cr.P.C. have no application to the present case. That said, we find
that the investigating agency in the instant case has substantially
complied with both the aforesaid provisos, in that the statement of
the prosecutrix was reduced into writing in the first instance by
Dr. Rashmi Ahuja (PW-49) and thereafter by the SDM Usha
Chaturvedi (PW-27) and since this could not have been done at
the residence of the prosecutrix, it was done at SJ Hospital. True,
the recording of such information was not videographed, but this
was not the mandate prior to the amendment which came into
effect from 3 rd February, 2013. The fact that the statement of the
prosecutrix was subsequently recorded by a Judicial Magistrate
under Clause (a) of sub-section (5A) of Section 164 [as provided
by Clause (c) of the second proviso to sub-section (1) of Section
154] is, to our mind, sufficient reassurance to this Court about the
authenticity and veracity of the prosecution case. The mere fact
that the recording of the statement was not effected by a woman
police officer is meaningless when the recording was done by a
woman doctor and a woman Sub-Divisional Magistrate and
subsequently by a Judicial Magistrate under Section 164 Cr.P.C.
257. Mr. Sharma further contended that the statement of the
prosecutrix recorded in the MLC ought to have formed the basis
of the F.I.R. as this was the first information of the incident. In
this context, he relied upon the judgment of the Constitution

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Bench in Lalita Kumari vs. Govt. of UP and Ors., 2013 (13)
SCALE 559 and the judgments in Thulia Kali vs. State of Tamil
Nadu, (1972) 3 SCC 393 and CBI vs. Tapan Kumar Singh (2003)
6 SCC 175.
258. We find from the record that the first statement of the
complainant/eye-witness, (Ex.PW-1/A) was recorded in the
morning of 17.12.2012 by PW-74 S.I. Subhash Chand who gave
the rukka to Ct. Kripal and sent him at 5:10 AM to police station
on the basis of which FIR was registered. The rukka Ex.PW-
74/A clearly mentions about the MLC of the prosecutrix and
the facts narrated by the prosecutrix herself of the assault and
rape to the treating doctor, PW-49 Dr. Rashmi Ahuja. The
endorsement on the rukka (Ex.PW-74/A) reads as under:-
To
The Duty Officer
P.S. Vasant Vihar

Sir,

It is officially submitted that today on receipt of DD No.6-

A, I, the SI alongwith Ct. Kirpal no.3926/SD reached S.J.
Hospital for the purpose of investigation where S.I. Mahesh and
Inspector Raj Kumari ATO/Vasant Kunj (North) were present.
One Jyoti d/o Badri Nath Singh aged 23 years r/o 174, Street
No.27, Mahabir Enclave, Delhi was admitted in the hospital vide
MLC No.37758. Thereafter, I obtained the aforesaid MLC
collected by Inspector Raj Kumari. The doctor had written on
the MLC No.37758(GRR) of Jyoti, alleged H/o gang-rape in a
moving bus by 4-5 men while she was coming from a movie
with her boy friend. She was slapped on her face, kicked on her
abdomen and bitten over lips, cheek, breast and vulval region.
She remembers intercourse two times and rectal penetration
also. She was forced to suck their penis but she refused. All this
continued for half an hour and then she was thrown off from the
moving bus with her boyfriend. The victim was not in the
position to make her statement due to injuries..

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259. Faced with this situation, Mr. Sharma sought to contend that
the complaint/tehreer Ex.PW-1/A not being written in the hand of
the complainant, no FIR could be registered on the basis thereof.
We find this to be an argument of desperation as there is no such
requirement in law and Section 154 Cr.P.C. clearly envisages that
information may also be received orally. In any event, reference
may usefully be made to Ex.PW-1/A which shows that the
complainant PW-1 signed the same. PW-1 in his testimony in
Court corroborates this and identifies his signature on the tehreer:-
My first statement was recorded in the hospital. I had
signed twice. Today I have seen my statement. It bears my
signature at point A and the same is Ex.PW-1/A.

260. Relying upon the decision of the Supreme Court in Ishwar

Singh vs. State of U.P., AIR 1976 SC 2423, Mr. Sharma then
sought to contend that there was considerable delay in the
registration of the First Information Report. At the outset, we
note that the case of Ishwar Singh is of no help to the defence as
in the said case there was inordinate and unexplained delay in
dispatching the First Information Report to the Magistrate. The
FIR was stated to have been lodged at 9:05 AM on February 14,
1973 but the Magistrate received it on the morning of February
16. The Court of the Magistrate was nearby and thus it became
difficult to understand why the report was sent to him about two
days after its stated hour of receipt at the police station. On this
basis, it was contended in the said case that the First Information
Report was recorded much later than the stated date and hour,
affording sufficient time to the prosecution to introduce

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improvements and embellishments and set up a distorted version of
the occurrence. In the present case, the FIR was registered at the
earliest i.e. at 5:40 AM and in any event no question has been put to
the Investigating Officer in respect of any delay in the registration of
the FIR.
261. Reliance was also placed by Mr. M.L. Sharma in the context
of delay upon the decision of the Supreme Court in Jai Prakash
Singh vs. State of Bihar and Anr., (2012) 4 SCC 379. In
paragraph 12 of the said judgment, the Court opined:-
12. The FIR in a criminal case is a vital and valuable piece of
evidence though may not be substantive piece of evidence. The
object of insisting upon prompt lodging of the FIR in respect of
the commission of an offence is to obtain early information
regarding the circumstances in which the crime was committed,
the names of the actual culprits and the part played by them as
well as the names of the eye-witnesses present at the scene of
occurrence. If there is a delay in lodging the FIR, it loses the
advantage of spontaneity, danger creeps in of the introduction
of coloured version, exaggerated account or concocted story as
a result of large number of consultations/deliberations.
Undoubtedly, the promptness in lodging the FIR is an
assurance regarding truth of the informant's version. A promptly
lodged FIR reflects the first hand account of what has actually
happened, and who was responsible for the offence in question.
(Vide Thulia Kali v. State of T.N. [(1972) 3 SCC 393 : 1972 SCC
(Cri) 543 : AIR 1973 SC 501] , State of Punjab v. Surja
Ram [1995 Supp (3) SCC 419 : 1995 SCC (Cri) 937 : AIR 1995
SC 2413] , Girish Yadav v. State of M.P. [(1996) 8 SCC 186 :
1996 SCC (Cri) 552] and Takdir Samsuddin Sheikh v. State of
Gujarat [(2011) 10 SCC 158 : (2012) 1 SCC (Cri) 218 : AIR
2012 SC 37] .)

262. The aforesaid case too has no application to the facts of the
present case as the test laid down in the extracted portion
reproduced hereinabove are fulfilled in the present case and the
sequence of events in respect of registration of FIR shows that
there is no delay in the registration of the FIR. In order to place

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matters beyond the pale of controversy, however, we set out
hereunder the sequence of events leading to the registration of the
FIR:-
(i) DD No. 4-A PS Vasasnt Kunj (North)
S.I. Mahesh Bhargav (PW-62) of Police Station Vasant Kunj
(North) received DD Entry No.4-A at 12:45 AM. The said DD
stated that one boy and girl were found naked in front of GMR
Gate, Mahipalpur. On receipt of this DD, the said witness
reached the spot. However, he did not find anyone there as the
PCR had already taken the injured persons to the Hospital. S.I.
Mahesh Bhargav (PW-62) thereafter proceeded to Safdarjung
Hospital wherein he was informed by the Duty Constable that
the complainant had been referred to Ward B, whereas the
prosecutrix had been sent to the GRR (Gynae Ward). The said
witness also received MLC of the complainant (PW-51/A) and
later handed over the same to the Investigating Officer.
(ii) Inspector Raj Kumari, ATO, Vasant Kunj, PW-59 (Anti-
Terrorist Officer, an officer of the rank of an Addl. SHO), also
reached Vasant Kunj as she was on patrolling duty and had
received information from the Duty Officer that one boy and
girl had been admitted in Safdarjung Hospital in an injured
condition. Raj Kumari (PW-59) collected the MLC and exhibits
of the prosecutrix and handed over the same to the
Investigating Officer Pratibha Sharma which were seized by a
seizure memo (Ex.59/A).

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(iii) DD No. 6-A PS Vasant Vihar
Further, consequent to the information transmitted, the Duty
Officer, Vasant Vihar Police Station, A.S.I. Kapil Singh (PW-
57) received DD No.6-A (Ex. PW-57/A). The substance of the
said DD was that at 1:12 AM information was received from
mobile number 9717890175 that a girl and a boy were found
without any clothes just after the Mahipal Pur flyover on the
way towards Delhi in the service lane. The DD was then
handed over by PW-57 to S.I. Subhash (PW-74). The said DD
recorded the fact of the victims lying near the Mahipalpur
flyover and that it was recorded at 01:12 AM.
(iv) DD No. 7-A PS Vasant Vihar
PW-57, A.S.I. Kapil Singh the Duty Officer of Vasant Vihar
Police Station received a further call, noted down as DD No.7-
A, which was from the Duty Constable, Safdarjung
Hospital at 1:20 AM about the admission of the victims to
Safdarjung Hospital. The information about the said DD
No.7-A (Ex.57/B) was also given to S.I. Subhash.
(v) After admission, the complainant and the victim were admitted
to separate casualties. The complainant was admitted to the
general casualty, while the victim was admitted to the Gynae
casualty. The complainant was examined by Dr. Sachin Bajaj
(PW-51) and other doctors and the MLC was drawn up in the
handwriting of Dr. Dheeraj, whose signature is identified by
Dr. Sachin Bajaj (PW-51). The same was later on handed over
to I.O. S.I. Pratibha Sharma. The victim (prosecutrix) was

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 attended to by Dr. Rashmi Ahuja (PW-49) and her MLC was
drawn up, which is Ex.PW-49/B. The evidence of PW-59
Inspector Raj Kumari shows that the MLC was handed to S.I.
Pratibha Sharma.
(vi) S.I. Subhash, P.S. Vasant Vihar (PW-74) after ascertaining that
the complainant was fit for recording his statement proceeded
to record the statement of the complainant/eye witness (PW-1)
at Safdarjung Hospital. He then sent the said rukka/tehreer to
Vasant Vihar Police Station through Constable Kirpal Singh
(PW-65) at 5:10 A.M. The said rukka/tehreer is Ex.PW-1/A;
having endorsement, which is Ex.PW-57/E.
(vii) DD No. 11-A PS Vasant Vihar
On receipt of the said rukka/tehreer, DD No.11-A, which is
Ex.PW-57/C, was recorded and thereafter an FIR was
registered, being FIR No.413 of 2012 at Police Station Vasant
Vihar (Ex.PW-57/D) at 5:40 A.M., which was signed by the
Duty Officer.

263. The aforesaid evidence, in our view, completely rules out

the possibility of any manipulation and in fact proves and
corroborates the FIR. We also note that there is no suggestion by
the defence in the cross-examination about manipulation in the
FIR. In any event, it is settled law that an FIR is not an encyclopedia
but only the starting point of the investigation.
264. Reference may usefully be made in this context to a recent
decision of the Supreme Court rendered in the case of Hari

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Harivadan Babubhai Patel v. State of Gujarat, (2013) 7 SCC 45. In
the said case, the incident had taken place on 23.1.2006, yet the FIR
was lodged only on 25.1.2006. It was, however, clearly proven that
the informant was engaged in search for the deceased and he had not
apprehended that the life spark of the deceased would be extinct. The
issue arose as to whether delay in lodgment of FIR had no significant
bearing on the case of the prosecution or whether such delay had
resulted in the creation of a coloured version in the FIR, which was
answered by the Supreme Court as follows:-
12. In this context, we may refer with profit to the authority
in State of H.P. v. Gian Chand [(2001) 6 SCC 71 : 2001 SCC
(Cri) 980] wherein a three-Judge Bench has opined that the
delay in lodging the FIR cannot be used as a ritualistic formula
for doubting the prosecution case and discarding the same
solely on the ground of delay. If the explanation offered is
satisfactory and there is no possibility of embellishment, the
delay should not be treated as fatal to the case of the
prosecution.

13. In Ramdas v. State of Maharashtra [(2007) 2 SCC 170 :

(2007) 1 SCC (Cri) 546] it has been ruled that when an FIR is
lodged belatedly, it is a relevant fact of which the court must
take notice of, but the said fact has to be considered in the light
of other facts and circumstances of the case. It is obligatory on
the part of the court to consider whether the delay in lodging the
report adversely affects the case of the prosecution and it would
depend upon the matter of appreciation of evidence in totality.

14. In Kilakkatha Parambath Sasi v. State of Kerala [(2011) 4

SCC 552 : (2011) 2 SCC (Cri) 355 : AIR 2011 SC 1064] it has
been laid down that when an FIR has been lodged in a belated
manner, inference can rightly follow that the prosecution story
may not be true but equally on the other side, if it is found that
there is no delay in the recording of the FIR, it does not mean
that the prosecution story stands immeasurably strengthened.
Similar view has also been expressed in Kanhaiya Lal v. State
of Rajasthan [(2013) 5 SCC 655 : (2013) 6 Scale 242].

15. Scrutinised on the anvil of the aforesaid enunciation of law,

we are disposed to think that there had been no embellishment
in the FIR and, in fact, there could not have been any possibility

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 of embellishment. As we find, the case at hand does not reveal
that the absence of spontaneity in the lodgment of the FIR has
created a coloured version. On the contrary, from the other
circumstances which lend support to the prosecution story, it is
difficult to disbelieve and discard the prosecution case solely on
the ground that the FIR was lodged on 25-1-2006 though the
deceased was taken by the accused persons sometime on 23-
1-2006. The explanation offered pertaining to the search of the
deceased by the informant has been given credence to by the
learned trial Judge as well as by the High Court and, in our
considered opinion, adjudging the entire scenario of the
prosecution case, the same deserves acceptation. Hence, the
said submission is sans substance.

265. Thus, in the instant case, the delay, if any, in lodgement of

the FIR has no possible bearing on the case of the prosecution. In
any event, during the course of the trial, no embellishment in the
FIR has been proved.
266. Mr. M.L. Sharma next contended that it was indeed
surprising that all the senior officers were present at SJ Hospital
including Inspector Raj Kumari (PW-59) and ACP Mr. Mahender
Singh Malik, though FIR had yet to be registered. This, Mr.
Sharma stated, was borne out from the testimony of PW-59
Inspector Raj Kumari, who stated in cross-examination that she
reached the hospital within 20 minutes of the recording of the first
daily diary entry and the night G.O. of the District, ACP Mr.
Mahender Singh Malik was also present, and in further cross-
examination stated that many senior officers, i.e., SHOs and ACP
had reached SJ Hospital by then and the DCP had also come to the
hospital before she left at about 4/5 AM. The question arises as to
who had informed the senior officers?

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267. We find the aforesaid argument specious in nature for it is
well known that the standard operating practice is that information
in respect of all cases of heinous crime is simultaneously
transferred by the control room to all the relevant police stations
as well as on wireless to all officers on the wireless net. There is
a night gazetted officer of DCP rank for the entire city and a night
gazetted officer of ACP rank for each district who is informed by
the control room and who in turn transmits it to the concerned
district DCP both through telephone as well as through the
wireless net. The aforesaid aspect has been affirmed before us by
the learned Special Public Prosecutor and need not detain us any
further.
268. Mr. Sharma then emphatically contended that the
prosecution version that the prosecutrix was found naked at the
time of her rescue is not at all worthy of credence for the reason
that a torn shameez was collected from the prosecutrix by PW-49
Dr. Rashmi Ahuja and this fact stands documented by the
concerned doctor in Ex.PW-49/A. We are of the opinion that not
much ado can be made of the fact that a torn shameez was found
on the body of the prosecutrix and in order to satisfy ourselves on
this score, we had sent for the said garment which was produced
before us and was found by us to be just a shred of cloth, black in
colour, incapable of hiding or concealing any part of the body of
the prosecutrix. As a matter of fact, we find the recovery of the
torn shameez corroborates the statement made by the prosecutrix,
recorded by PW-49 Dr. Rashmi Ahuja (Ex.PW-49/A) as well as

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her statement given to the SDM PW-27 (Ex.PW-27/A). In both
her aforesaid statements, the prosecutrix categorically states that
her clothes were torn by the accused persons. Further, it emerges
from the record that the witnesses, who saw the victims in semi-
darkness, stated that they were naked with some torn inner
clothing.
269. Mr. Sharma further contended that the entire prosecution
case was a fabricated and concocted story as is obvious from the
fact that as per the prosecution, one Mohd. Zeeshan (PW-44)
came to the police station and handed over one SIM card of IDEA
to the Investigating Officer by saying that he had found this SIM
card in Noida, UP. Mr. Sharma urged that it was wholly
ununderstandable as to how the SIM card (Ex.PW-44/1) was
found at Noida when the entire incident took place in Delhi.
270. We are constrained to say that there is no substance in the
aforesaid contention of Mr. Sharma for the reason that PW-81
Dinesh Yadav, the owner of the bus bearing registration
No.DL1PC-0149, in which the offence was committed, has
categorically stated in his cross-examination that bus Ex.P-1 was
being used for ferrying the students in the morning and thereafter
as a chartered bus for taking the officials of M/s. Net Ambit from
Delhi to Noida. He further stated in cross-examination that on
17.12.2012, the bus took the staff of M/s. Net Ambit from Delhi
to Sector 132, Noida, UP. Quite apparently, therefore, accused
Ram Singh as disclosed by him had thrown the SIM card
nearabout the bus stand of Sector 37, where according to PW-44

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Mohd. Zeeshan, it was found at the noon hour. Since it is not in
dispute that accused Ram Singh was the driver of the bus and this
fact stands fully established by the evidence on record, Noida was
possibly found by him to be the safest destination to dispose of the
SIM card.
271. Mr. Sharma next contended that in view of the fact that the
bite marks on the body of the prosecutrix, other than those of Ram
Singh and Akshay Kumar, have not been identified, the necessary
corollary is that the remaining four accused persons were not
involved in the commission of the crime. The police having failed
to investigate the aforesaid bite marks, the investigation could not
have been wrapped up by implicating the remaining four accused
persons. We have carefully considered the aforesaid argument
and we find the same to be sans substance. The report of the
Department of Forensic Odontology shows that out of the samples
provided for analysis (being photographs Nos.1 to 10) only
photographs 1, 2, 4 and 5 yielded results. The said report clearly
discloses that photograph Nos.1 and 2 on comparison were found
to be the bite marks of one of the accused persons, namely, Ram
Singh. Photograph No.3 was found to be out of focus and,
therefore, could not be utilized for further analysis. Photograph
No.4 was found to be of the bite marks of accused Ram Singh.
Photograph No.5 was found to tally with the dental model of
accused Akshay. In photograph No.6, the scale was not found on
the same plane as the bite mark caused by the lower jaws teeth;
therefore, this photograph was not used for further analysis. In

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photographs Nos.7 and 8, since the marks were relatively isolated
and diffused, these photographs were not used for the purpose of
analysis. Likewise, in photograph Nos.9 and 10, since the tooth
marks were of clustered nature and precluded the identification of
the causative teeth, these photographs were also not used for
further analysis. Thus, in the samples provided for analysis, only
photographs 1, 2, 4 and 5 were used for the purpose of analysis.
These photographs, as noted above, pertain to accused Ram Singh
(photographs 1, 2 and 4) and to accused Akshay Kumar
(photograph No.5), but it would be wholly illogical to surmise
therefrom that the remaining photographs preclude the possibility
of the bite marks belonging to the remaining accused persons or
that the remaining accused persons were not involved in the
commission of the crime.
272. Mr. M.L. Sharma also sought to contend that the lights
having been put off in the bus Ex.P-1, there was no question of
identification of the accused persons by PW-1 Awninder Pratap
Singh. This argument of Mr. Sharmas, though appealing at first
blush, loses sight of the entirety of the evidence on record. Thus,
PW-1 Awninder Pratap Singh in his deposition in Court clearly
states that as he boarded the bus he saw that besides the boy who
was insisting upon their boarding the bus, there were two other
persons sitting in the drivers cabin along with the driver of the
bus, who was of blackish complexion. He further states that as he
entered the bus he found that it was a 3 x 2 seater bus, i.e., there
was a three seats row behind the drivers seat and a two seats

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row on the other side. One person was sitting on the left side,
i.e., on the two seats and another was sitting on the right side, i.e.,
on the three seats just behind the drivers seat. He and his friend
sat behind the person who was sitting on the left side, i.e., on the
two seats row. After entering bus, he noticed that the seat
covers of the bus were of red colour and it had curtains of
yellow colour and the windows of the bus had black film on it.
He further states that he paid an amount of ` 20/- as bus fare
to the conductor, i.e., ` 10/- per head. Subsequently, he states
that as the bus started, the accused put off the lights inside the
bus, but by then he had already noted the aforementioned
facts and paid the fare of the bus.
273. The aforesaid deposition of PW-1 stands corroborated by
the statement of the prosecutrix given to PW-27 Usha Chaturvedi,
SDM (Ex.PW-27/A), where in answer to question No.9, she stated
that after five minutes when the bus started climbing the Malai
Mandir flyover, the conductor switched off the lights of the
bus. Further, we find from the statement given by the prosecutrix
to PW-30 Pawan Kumar, Metropolitan Magistrate (Ex.PW-30/C)
that on a specific query put to the prosecutrix by the Metropolitan
Magistrate as to whether she had seen the staff of the bus, the
prosecutrix replied in the affirmative.
274. In the context of dying declarations of the prosecutrix, Mr.
M.L. Sharma more or less argued on the same lines as Mr. Singh
adopting the contentions of Mr. Singh. Mr. M.L. Sharma, like Mr.
A.P. Singh, contended that the MLC Ex.PW-49/B was the only

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 worthwhile statement of the prosecutrix. The following additional
arguments were, however, put forth by Mr. M.L. Sharma:-
(i) The prosecution story with regard to the looting of articles
from the two victims is belied by the brief history given by
the prosecutrix in the MLC EX. PW 49/B, in which she has
nowhere stated that any article was looted from her or her
friend.
(ii) Additionally, in document EX. PW 49/A, the doctor lists the
articles seized by her (PW-49 Dr. Rashmi Ahuja) from the
prosecutrix and the wrist watch of the prosecutrix is
specifically mentioned. In her second dying declaration,
however, the prosecutrix specifically mentions watches
(ghadiyan) to be among the looted articles. This too points the
needle of suspicion on her aforesaid dying declaration.
(iii) The fact that there is no mention of insertion of rods by the
accused persons in the first dying declaration viz., MLC
Ex.PW-49/B, but the slaps administered to her by the accused
persons are specifically mentioned by the maker of the
statement, shows that the whole story about the insertion of
rods in the recto-vaginal area of the prosecutrix, as set out in
her second and third dying declarations, is a concocted one.
(iv) The testimony of PW-30 Sh. Pawan Kumar, M.M. cannot be
read in evidence on account of non-administration of oath to
the said witness at the time of recording of his statement in
Court.

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(v) In her third dying declaration while it is the claim of the
prosecution, that the prosecutrix in her own handwriting wrote
down the names of the accused persons vide Ex.PW-30/E, the
said document has not been proved to be in the handwriting of
the prosecutrix by sending the same to the handwriting expert.
Additionally, the name of accused Pawan does not find
mention in document Ex.PW-30/E and instead one Vipin is
introduced for the first time, which goes to show that
document Ex.PW-30/E is an interpolated document. The said
Vipin does not at all figure in the prosecution story.
275. It is proposed to deal with the aforesaid contentions
pointwise:-
(i) In the context of contention No.(i), suffice it to note that
the prosecutrix at the time of her admission to hospital was
in a critical condition as detailed hereinabove and was
suffering from vaso-constriction. In such circumstances,
for her not to disclose the looting of articles cannot be
construed to mean that the Appellants in fact were not
guilty of the same. An MLC like an FIR is not meant to be
an encyclopaedia and in fact in the case of an MLC it is all
the more so when the condition of the patient is critical and
the patient has undergone severe trauma as in the instant
case.
(ii) In the context of contention No.(ii), it may profitably be
noted that it is not the case of the prosecution that the
watch of the prosecutrix was amongst the looted articles.

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 There is a recovery memo in respect of the watch of the
complainant (PW-1) but there is no such document in
respect of the watch of the prosecutrix and hence the use of
the word ghadiyan in the statement of the prosecutrix
must be construed in the singular rather than in the plural.
This in fact is corroborated by document Ex.PW-49/A
which is a list of articles prepared by PW-49 Dr. Rashmi
Ahuja, in SJ Hospital, in which the watch of the
prosecutrix finds mention. Thus, evidently the prosecutrix
was wearing her watch at the time of her admission in the
hospital and the said watch is not shown to have been
recovered from any of the accused.
(iii) In the context of contention No.(iii), suffice it to note that in
her dying declaration recorded by the S.D.M. the prosecutrix
has accurately described the incident and explained the
manner in which the accused not only repeatedly inserted iron
rods in her rectal and vaginal region, but also stated that her
internal organs were pulled out with the rods as well as the
hands of the accused. This is the manner in which she
describes her plight:-
Lohey ki rod se mujhe mere paet par maara aur poore
shareer par danto se kata. Is se pehle mere dost ka
saman - mobile phone, purse, credit card, debit card,
ghadi aadi cheen liye. But total chhey (6) log the jinhoney
bari-bari se oral (oral) vaginal (through vagina) aur
pichhey se (anal) balatkar kiya. In logo ne lohe ki rod ko
mere sharer ke andar vaginal guptang aur guda (pichhey
se) (through rectum) dala aur phir bahar bhi nikala. Aur
mere guptango haath aur lohe ki rod dal kar mere shareer
ke andruni hisson ko bahar nikala aur chot pahunchayi.
Chhey logo ne bari-bari se mere saath kareeb ek ghante

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 tak balatkar kiya. Chalti huyi bus mein he driver badalta
raha taaki woh bhi balatkar kar sake.

True it is that in the MLC Ex.PW-49/B there is no

mention made by her about the insertion of rods in her vagina
and rectum and the pulling out of the internal organs with the
said rods and with hands. It is, however, beyond cavil that her
MLC itself bears testimony to the savage manner in which she
had been brutalized in that at the risk of repetition it is noted
that a tag of the vagina 6 cms. long was hanging out of the
introitus resulting in profuse bleeding, the vaginal wall had a
tear of about 7 to 8 cms, the rectal tear was of about 4 to 5 cm
communicating with the vaginal tear and she was immediately
referred to OT for complete perineal tear repair. The injury to
her rectovaginal area was opined by Dr. Rashmi Ahuja (PW-
49) as dangerous in nature. The manner in which she was
brutalized is also set out in her second dying declaration and
her aforesaid statement is fully corroborated by the medical
evidence given by all the doctors, including Dr. Rashmi Ahuja
(PW-49) and Dr. Raj Kumar Chejara (PW-50).
Then again, the Investigating Officer had sought the
opinion of the doctors with regard to the weapons of offence,
viz., the rods Ex.PW-49/1 and Ex.PW-49/2, which were shown
to both Dr. Rashmi Ahuja (PW-49) and Dr. Raj Kumar Chejara
(PW-50). Both the said doctors identified the rods shown to
them in the course of investigation and opined that the injuries
sustained by the prosecutrix could have been caused by

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 thrusting of the said rods forcibly through vagina and/or anus,
as opined by them in their report Ex. PW-49/G. The findings
rendered by PW-50 Dr. Raj Kumar Chejara, who conducted the
surgery on the prosecutrix in respect of the abdominal injuries
sustained by the prosecutrix are also apposite in that this
medical evidence fully corroborates the prosecution version
with regard to the rods being the weapon of offence. The said
findings have been reproduced hereinabove and are not being
restated to avoid prolixity.
Thus, the mere circumstance that there is no mention
made of the rods by the prosecutrix in the MLC cannot be used
by the counsel for the defence to yield any advantage to the
accused persons, as the insertion of the rods in the interns of the
prosecutrix is fully corroborated by the medical evidence on
record. Apart from this, it is further corroborated by the DNA
analysis. Here again, since we have already dealt with the
DNA reports at some length, at this juncture we rest content by
noting that upon analysis of the DNA profile developed from
the blood-stains on the rods, the same was found to be
consistent with the DNA profile of the prosecutrix.
We are, therefore, not inclined to accept the contention
of the defence that the non-mention of the rodsin the MLC of
the prosecutrix shows that rodswere not used as weapon of
offence. The findings of the learned trial court with regard to
the weapon of offence, viz. the iron rods in this regard appear
to us to be in order and we fully endorse the same.

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 We may also note at this juncture that in the first
statement recorded of the complainant by SI Subhash (PW-74)
on 17.12.2012 (Ex.PW-1/A), the complainant (PW-1) has made
a clear mention of the user of iron rods as weapons of offence
albeit in the context of injuries inflicted upon him, and this
statement was recorded nearly 12 hours before the arrest of
accused Ram Singh, the first of the accused persons to be
arrested.
(iv) As regards the defence plea relating to non-administration of
oath to PW-30, Shri Pawan Kumar, Metropolitan Magistrate, it
only requires to be noted that due to inadvertence, oath was not
administered to the said witness by the learned trial Court in the
first instance. However, thereafter, oath was administered and
his entire examination-in-chief was recorded afresh. Even
otherwise, non-administration of oath to a witness has
absolutely no bearing on his testimony. This is all the more so
in the case of a Magistrate who is deposing in respect of
judicial proceedings. The law in this regard has been
enunciated in a recent judgment of the Supreme Court rendered
in the case of State of Rajasthan v. Darshan Singh @
Darshan Lal (2012) 5 SCC 789, wherein it is held that the
omission of administration of oath or affirmation does not
invalidate any evidence in view of the clear provisions of
Section 7 of the Oaths Act, 1969. In the said case, the Court
noted the legal position as under (SCC, Page 797):-

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 24. This Court in Rameshwar v. State of Rajasthan [AIR
1952 SC 54 : 1952 Cri LJ 547] has categorically held that
the main purpose of administering of oath is to render
persons who give false evidence liable to prosecution and
further to bring home to the witness the solemnity of the
occasion and to impress upon him the duty of speaking
the truth, further such matters only touch credibility and
not admissibility. However, in view of the provisions of
Section 7 of the Oaths Act, 1969, the omission of
administration of oath or affirmation does not invalidate
any evidence.

(v) In context of the discrepancy in the names set out in the second
and third dying declarations of the prosecutrix, it needs to be
borne in mind that the prosecutrix did not know the accused
prior to the incident. She in fact gathered the names of the
accused while overhearing them calling out to each other during
the incident (an incident in which they were the tormentors and
she the tormented) and, therefore, could not be expected to
remember their names accurately, more so when she herself was
precariously poised between life and death. Thus, in the third
dying declaration, there is no mention of the Appellant Pawan
Kumar and instead one Vipin has been mentioned. But is this
solitary circumstance sufficient to discard her statement in its
entirety? We think not. The reasons are set out hereunder.
The medical record of the prosecutrix shows that the
prosecutrix remained unfit for recording of her statement on
17th December, 18th December, 19th December and 20th
December, 2012. It was only on 21st December, 2012 at about
6 p.m, that she was declared fit for recording of her statement.
In her said statement recorded by the SDM, she has given the

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 names of her six assailants accurately and has specified the
exact role played by each of them and the barbaric manner in
which they defiled her body. At the time of the recording of
her third dying declaration, however, the medical record of the
prosecutrix shows that she had again taken a turn for the worse
and as testified by the concerned doctors her bowels had turned
gangrenous. The third dying declaration was recorded on
25.12.2012 and on the following day, i.e., on 26.12.2012, it
was decided to remove her to Singapore keeping in view her
dangerous condition. In such circumstances, though she
managed to correctly name five out of her six assailants, the
last name was erroneously mentioned by her as Vipin instead
of Pawan, presumably on account of her flagging energy
resources towards the end. Be that as it may, we are persuaded
to hold that the fact that the document mentions one of the
names wrongly only goes to prove the authenticity of the
document and not the contrary. Had this been an interpolated
document, there would have been no difficulty in correctly
recording the name Pawan instead of Vipin.
Not much importance can also be attached, in our view,
to the somewhat belated plea raised by learned defence
counsel that document Ex.PW-30/E was not sent for forensic
examination to determine the handwriting of the prosecutrix.
Had the defence counsel shown the same anxiety for forensic
examination of the document at the relevant stage, there might
have been some weight in this contention, but this would have

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 obviously meant the running of a huge risk by the defence.
The defence chose not to tread thin ice and given the
circumstances there does not appear to us to be any reason for
us to doubt the statement of the learned Metropolitan
Magistrate (PW-30) that document Ex.PW-30/E was scribed
by the prosecutrix in her own handwriting, more so when
there is ample evidence on record, including scientific
evidence, to nail the real culprits.
276. In the aforesaid context, in a recent judgment rendered by the
Honble Supreme Court in the case of Rakesh and Another Vs. State
of Haryana (2013) 4 SCC 69, the Supreme Court, while examining
the credibility of a dying declaration recorded by the Judicial
Magistrate opined (SCC, Page 76):-
20. The claim that there was wrong description of names
in the dying declaration and some of the relatives were
present at the time of recording of the dying declaration are
not material contradictions which would affect the
prosecution case.

277. Per contra, Mr. M.L. Sharma heavily relied upon the decision
in Mehiboobsab Abbasabi Nadaf vs. State of Karnataka, (2007) 13
SCC 112 to contend that no credence could be attached to any of the
dying declarations of the prosecutrix. This was a case in which the
deceased herself had taken contradictory and inconsistent stand in
four different dying declarations and in fact there was a total
divergence in her statements with regard to the manner in which the
incident took place. Hence it was held that the same should not be
accepted on their face value; that consistency in the dying

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declarations apart from voluntariness is the relevant factor for placing
full reliance thereupon, and that caution was, therefore, required to be
applied. In the present case, we do not find any such inconsistency in
the three dying declarations of the deceased as to render them
unworthy of credence.
278. Mr. M.L. Sharma further relied upon the decision of State of
Madhya Pradesh vs. Dal Singh and Others, (2013) 7 SCALE 513.
This was a case in which it was alleged that there were discrepancies
in the two statements of the deceased, one recorded in the first
information report and the other before the Executive Magistrate, as
to who set the deceased on fire and who poured kerosene oil on her.
However, the deceased in the FIR as well as in her statement recorded
before the Executive Magistrate had implicated all the three accused
persons. The trial court convicted all the accused. On appeal, the
High Court acquitted all the accused. On further appeal, the Supreme
Court restored the judgment of the trial court holding that the
contradictions raised by the defence in the two dying declarations, as
regards who had put the kerosene oil on her, and who had lit the fire
had been carefully examined and explained by the trial court.
Furthermore, in such a state of mind, one cannot expect that a person
in such a physical condition, would be able to give the exact version
of the incident, as she had been suffering from great pain and physical
agony. This judgment further reiterates the legal position enunciated
in Laxman vs. State of Maharashtra, (2002) 6 SCC 710. We are not
able to see as to how this judgment is of any assistance to the defence.

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279. Reliance was next placed by Mr. Sharma on a recent decision
of the Supreme Court rendered in Kashi Vishwanath vs. State of
Karnataka, (2013) 8 SCALE 620. In this case, the Taluka Executive
Magistrate recorded the first statement of the deceased as to who had
set her ablaze in her matrimonial home. The second dying
declaration was recorded by the police Sub-Inspector while the third
statement was recorded by the Investigating Officer. The Supreme
Court after observing that there were glaring inconsistencies in the
said three dying declarations allowed the appeal of the Appellant.
The Supreme Court noted that in the first dying declaration, the
deceased stated that she had sustained burn injuries when her husband
had a fight with her and instigated her to pour kerosene upon her body
and when she poured kerosene on her body, her husband further
poured kerosene upon her and put her on fire with the match box. In
the second dying declaration, she stated that her husband started
quarrelling with her at the behest of one Laxmi and along with Laxmi
poured kerosene on her body and put her on fire by using match stick;
while in the third dying declaration she stated that her husband poured
kerosene on her and the aforesaid Laxmi lit the match stick and threw
it upon her body as a result of which the flames spread all over her
body. Suffice it to note that this case rests on its own peculiar facts
and has no application whatsoever to the facts of the present case in
which all three dying declarations of the deceased are in the same
strain.
280. The law on multiple dying declarations has been elaborately
dwelt upon by the Supreme Court in a large number of cases and it

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has been consistently held that it is not required for multiple dying
declarations to be identical with each other to pass the test of
admissibility. The Court, in the facts of each case, will examine the
nature of inconsistencies, if any, to see if they are material or not. It
has been further held that even if the dying declarations are
inconsistent, the version that corroborates as nearly as may be the
version of the prosecution can be admitted into evidence.
281. In Abrar Vs. State of Uttar Pradesh (2011) 2 SCC 750, a three
Judge Bench of the Supreme Court noted that minor discrepancies in
dying declarations recorded at multiple intervals is normal because of
the pain and suffering the victim is enduring; such discrepencies are
not required to be given undue weightage or blown out of proportion.
The relevant extract of the judgment is reproduced below (SCC, Page
754):-
12. It is true that there are some discrepancies in the dying
declarations with regard to the presence or otherwise of a light
or a torch. To our mind, however, these are so insignificant that
they call for no discussion. It is also clear from the evidence that
the injured had been in great pain and if there were minor
discrepancies inter se the three dying declarations, they were to
be accepted as something normal. The trial court was thus
clearly wrong in rendering a judgment of acquittal solely on this
specious ground. We, particularly, notice that the dying
declaration had been recorded by the Tahsildar after the doctor
had certified the victim as fit to make a statement. The doctor
also appeared in the witness box to support the statement of
the Tahsildar. We are, therefore, of the opinion, that no fault
whatsoever could be found in the dying declarations.

282. In a recent judgment rendered by the Supreme Court in

Ashabai and Another Vs. State of Maharashtra (2013) 2 SCC 224,
the Supreme Court while upholding the evidentiary value of multiple
dying declarations recorded in the said case, pointed out that the law

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does not require corroboration for dying declarations and even if there
are variations between different dying declarations, the same cannot
be rejected. The relevant extract of the said judgment reads as under
(SCC, Page 230),:-
15. .. It is settled law that if the prosecution solely
depends on the dying declaration, the normal rule is that the
courts must exercise due care and caution to ensure
genuineness of the dying declaration, keeping in mind that the
accused had no opportunity to test the veracity of the statement
of the deceased by cross-examination. As rightly observed by
the High Court, the law does not insist upon the corroboration of
dying declaration before it can be accepted. The insistence of
corroboration to a dying declaration is only a rule of prudence.
When the court is satisfied that the dying declaration is
voluntary, not tainted by tutoring or animosity, and is not a
product of the imagination of the declarant, in that event, there
is no impediment in convicting the accused on the basis of such
dying declaration. When there are multiple dying
declarations, each dying declaration has to be separately
assessed and evaluated and assessed independently on its
own merit as to its evidentiary value and one cannot be
rejected because of certain variations in the other.

16. We have already noted that in the present case, the

prosecution relied on four dying declarations of the deceased.
We have also noted that at the time of recording of these
statements, medical officers on duty had certified that the
deceased was fully conscious and was in a fit state of mind to
make the same. As a matter of fact, the deceased has given
proper replies to the questions put to her by various authorities.
Further, it is not in dispute that the incident occurred on 5-3-
2003 and she sustained 54% burns and, ultimately, she died
only on 18-4-2003. In other words, she survived for about 1
(one-and-a-half) months which speaks for the fitness of the
declarant to make a statement. The persons who recorded the
four dying declarations were examined as PWs 14, 7 and 6 and
they were also cross-examined about the statement made by
the deceased and recorded by them. In such circumstances, we
fully endorse the view expressed by the trial court and affirmed
by the High Court about the acceptability of four dying
declarations implicating the mother-in-law and sisters-in-law
(the appellants herein).

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283. In the case of Shudhakar v. State of M.P. (Supra), the
Supreme Court while dealing with the aforesaid aspect of the matter
broadened the horizons of the law relating to dying declarations by
holding that even if there was a large variance between the dying
declarations, the Court would apply its mind and rely on the one
which must closely corroborates the version of the prosecution. The
relevant portion of the judgment is reproduced herein below (SCC,
Page 580):-
21. Having referred to the law relating to dying
declaration, now we may examine the issue that in cases
involving multiple dying declarations made by the
deceased, which of the various dying declarations should
be believed by the court and what are the principles
governing such determination. This becomes important
where the multiple dying declarations made by the
deceased are either contradictory or are at variance with
each other to a large extent. The test of common prudence
would be to first examine which of the dying declarations is
corroborated by other prosecution evidence. Further, the
attendant circumstances, the condition of the deceased at
the relevant time, the medical evidence, the voluntariness
and genuineness of the statement made by the deceased,
physical and mental fitness of the deceased and possibility
of the deceased being tutored are some of the factors
which would guide the exercise of judicial discretion by the
court in such matters.

22. In Lakhan [(2010) 8 SCC 514 : (2010) 3 SCC (Cri) 942] this
Court provided clarity, not only to the law of dying declarations,
but also to the question as to which of the dying declarations
has to be preferably relied upon by the court in deciding the
question of guilt of the accused under the offence with which he
is charged. The facts of that case were quite similar, if not
identical to the facts of the present case. In that case also, the
deceased was burnt by pouring kerosene oil and was brought
to the hospital by the accused therein and his family members.
The deceased had made two different dying declarations, which
were mutually at variance. The Court held as under: (SCC pp.
518-19 & 522-24, paras 9-10, 23-24, 26 & 30).

9. The doctrine of dying declaration is enshrined in the legal

maxim nemo moriturus praesumitur mentire, which means a

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 man will not meet his Maker with a lie in his mouth. The
doctrine of dying declaration is enshrined in Section 32 of the
Evidence Act, 1872 (hereinafter called as the Evidence Act)
as an exception to the general rule contained in Section 60
of the Evidence Act, which provides that oral evidence in all
cases must be direct i.e. it must be the evidence of a
witness, who says he saw it. The dying declaration is, in fact,
the statement of a person, who cannot be called as witness
and, therefore, cannot be cross-examined. Such statements
themselves are relevant facts in certain cases.

10. This Court has considered time and again the

relevance/probative value of dying declarations recorded
under different situations and also in cases where more than
one dying declaration has been recorded. The law is that if
the court is satisfied that the dying declaration is true and
made voluntarily by the deceased, conviction can be based
solely on it, without any further corroboration. It is neither a
rule of law nor of prudence that a dying declaration cannot
be relied upon without corroboration. When a dying
declaration is suspicious, it should not be relied upon without
having corroborative evidence. The court has to scrutinise
the dying declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting or
imagination. The deceased must be in a fit state of mind to
make the declaration and must identify the assailants.
Merely because a dying declaration does not contain the
details of the occurrence, it cannot be rejected and in case
there is merely a brief statement, it is more reliable for the
reason that the shortness of the statement is itself a
guarantee of its veracity. If the dying declaration suffers from
some infirmity, it cannot alone form the basis of conviction.
Where the prosecution version differs from the version given
in the dying declaration, the said declaration cannot be acted
upon. (Vide Khushal Rao v. State of Bombay [AIR 1958 SC
22 : 1958 Cri LJ 106] , Rasheed Beg v. State of M.P. [(1974)
4 SCC 264 : 1974 SCC (Cri) 426] , K. Ramachandra Reddy
v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri)
473] , State of Maharashtra v. Krishnamurti Laxmipati Naidu
[1980 Supp SCC 455 : 1981 SCC (Cri) 364] , Uka Ram v.
State of Rajasthan [(2001) 5 SCC 254 : 2001 SCC (Cri) 847]
, Babulal v. State of M.P. [(2003) 12 SCC 490 : 2005 SCC
(Cri) 620] , Muthu Kutty v. State [(2005) 9 SCC 113 : 2005
SCC (Cri) 1202] , State of Rajasthan v. Wakteng [(2007) 14
SCC 550 : (2009) 3 SCC (Cri) 217] and Sharda v. State of
Rajasthan [(2010) 2 SCC 85 : (2010) 2 SCC (Cri) 980] .)

23. The second dying declaration was recorded by Shri

Damodar Prasad Mahure, Assistant Sub-Inspector of Police

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 (PW 19). He was directed by the Superintendent of Police on
telephone to record the statement of the deceased, who had
been admitted in the hospital. In that statement, she had stated
as under:

On Sunday, in the morning, at about 5.30 a.m., my husband

Lakhan poured the kerosene oil from a container on my head
as a result of which kerosene oil spread over my entire body
and that he (Lakhan) put my sari afire with the help of a
chimney, due to which I got burnt.

She had also deposed that she had written a letter to her
parents requesting them to fetch her from the matrimonial home
as her husband and in-laws were harassing her. The said dying
declaration was recorded after getting a certificate from the
doctor stating that she was in a fit physical and mental condition
to give the statement.

24. As per the injury report and the medical evidence it remains
fully proved that the deceased had the injuries on the upper part
of her body. The doctor, who had examined her at the time of
admission in hospital, deposed that she had burn injuries on her
head, face, chest, neck, back, abdomen, left arm, hand, right
arm, part of buttocks and some part of both the thighs. The
deceased was 65% burnt. At the time of admission, the smell of
kerosene was coming from her body.

26. Undoubtedly, the first dying declaration had been recorded

by the Executive Magistrate, Smt Madhu Nahar (DW 1),
immediately after admission of the deceased Savita in the
hospital and the doctor had certified that she was in a fit
condition of health to make the declaration. However, as she
had been brought to the hospital by her father-in-law and
mother-in-law and the medical report does not support her first
dying declaration, the trial court and the High Court have rightly
discarded the same.

30. Thus, in view of the above, we reach the following

inescapable conclusions on the questions of fact:

(c) The second dying declaration was recorded by a police

officer on the instruction of the Superintendent of Police after
getting a certificate of fitness from the doctor, which is
corroborated by the medical evidence and is free from any
suspicious circumstances. More so, it stands corroborated by
the oral declaration made by the deceased to her parents,
Phool Singh (PW 1), father and Sushila (PW 3), mother.

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 27. Thus, in our considered view, the second and third dying
declarations are authentic, voluntary and duly corroborated by
other prosecution witnesses including the medical evidence.
These dying declarations, read in conjunction with the
statement of the prosecution witnesses, can safely be made the
basis for conviction of the accused.

284. In the afore-mentioned case, after referring to a large number

of judgments including those rendered in Laxman v. State of
Maharashtra (Supra), the Court held the second and the third dying
declarations to be authentic, voluntary and duly corroborated by other
prosecution witnesses including the medical evidence. It further held
that these dying declarations read in conjunction with the statement of
prosecution witnesses, can safely be made the basis for conviction of
the accused. In substance, it was held that each dying declaration has
to be considered independently on its own merits so as to appreciate
its evidentiary value and one cannot be rejected because of the
contents of the other. In other words, where the deceased makes
dying declarations which are mutually at variance with each other, it
is the duty of the court to examine each one of them in its correct
perspective to assess where it can be made a foundation for the
conviction of the accused. Just as in the case of the testimony of the
witnesses, which may be classified into three categories:- (a) Wholly
reliable; (b) Wholly unreliable; (c) Neither wholly reliable nor wholly
unreliable, vide Lallu Manjhi Vs. State of Jharkhand (2003) 2 SCC
401, multiple dying declarations are also to be viewed and evaluated

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for their probative value in the fine scale of credibility. The rejection
of one dying declaration as not voluntary and not made by the free
will of the deceased does not result in automatic rejection of the other
dying declarations made by the deceased, which have to be
independently evaluated before accepting them as worthy of credence
by rejecting them as wholly unreliable.
285. In the present case, the evidence on record shows that apart
from the fact that the names of the accused and certain other details
are not mentioned in the MLC by the prosecutrix, all three dying
declarations of the prosecutrix corroborate each other in material
particulars.
286. It is also noteworthy that the evidence on record further
corroborates various aspects of the dying declaration, namely, (1) the
fact that the victims went to the Select City Mall in Saket; (2) the fact
that they reached Munirka bus stand; (3) the fact that the iron rods
were used; (4) the fact that they were dumped opposite Hotel Delhi
37 on NH 8 near Mahipalpur (5) the fact that the incident took place
in a bus and (6) the fact that the crime was committed by the five
accused arrayed in the present charge sheet, have all been
independently proved.
287. Mr. Sharma next contended that no reliance could be placed
on the DNA results to link the Appellants with the commission of
the crime as the prosecution has not disclosed the date and time
when the blood sample of the prosecutrix was taken. We find this
contention to be contrary to the record as the record shows that the
blood sample of the prosecutrix was taken for the first time by

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PW-49 Dr. Rashmi Ahuja in the night of 16.12.2012 itself along
with the other medical exhibits of the prosecutrix. The said fact is
mentioned in the Casualty Sheet (Ex.PW-49/A) at serial No.20 as
well as in the MLC (Ex.PW-49/B). Furthermore, the seizure
memo of the medical exhibits of the prosecutrix (Ex.PW-59/A)
affirms that the blood sample formed part of the seized exhibits
among other exhibits.
288. Mr. M.L. Sharma then sought to contend that there was an
irregularity in the arrest of the Appellant Mukesh, who, though
arrested at District Karoli on 18.12.2012 was not produced before
the nearest Magistrate within 24 hours of his arrest as mandated
by law. Instead, he was brought to Delhi on 18th December and
produced before the Magistrate in Delhi on 19 th December.
289. We propose to advert to the testimony of PW-58 S.I. Arvind
Kumar to demonstrate that there was no irregularity in the arrest
of the Appellant Mukesh. PW-58 S.I. Arvind Kumar in his
deposition stated that the involvement and address of accused
Mukesh was disclosed by his brother Ram Singh (since
deceased). PW-58 further deposed that first of all they went to
the local police station and gave them the information and from
there they went to the house of accused Mukesh where he was
found present. The accused was first examined and then
apprehended. At that time he was having a mobile make Samsung
Duos which was switched off at that time and was not having any
SIM. He was first brought to P.S. Vasant Vihar and from there on
their coming to know that the I.O. S.I. Pratibha was at SJ

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Hospital, they reached SJ Hospital and handed over the mobile
and accused Mukesh to S.I. Pratibha Sharma, and thereafter he
was formally arrested. The I.O. then checked the IMEI number of
the mobile and it connected with the mobile of the complainant,
which mobile was then seized vide memo Ex.PW-58/A.
Appellant was arrested vide memo Ex.PW-58/B at SJ Hospital and
his personal search conducted vide memo Ex.PW-58/C.
290. Interestingly, however, the Appellant Mukesh in his
statement under Section 313 Cr.P.C., in answer to Question
No.132, claims that he was not apprehended in his village, i.e.,
Village Karoli, Rajasthan but was apprehended at Ravi Dass
Camp and that the mobile Ex.P-6 was lying in his jhuggi kept by
his brother, Ram Singh (since deceased) which was seized by the
police.
291. In any event, it is a settled proposition of law that any
irregularity in arrest has no bearing on the trial. In a celebrated
decision given by the Privy Council in Parbhu vs. Emperor, AIR
(31) 1944 Privy Council 73, the contention of the Appellant was that
his arrest, having been effected in the territory of Jind by a British
Indian Officer, was illegal and that the illegality of his arrest vitiated
the whole subsequent proceedings. Lord Macmillan repelled the
aforesaid contention as under (SCC, Page 74):-
In their Lordships' view, the validity of the trial and
conviction of the appellant was not affected by any
irregularity in his arrest. When the appellant was presented
for trial at Rohtak he had been validly surrendered to the Court
there by the Jind authorities and so far as that Court was
concerned everything was regular and in order.

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292. In Lumbhardar Zutshi and Another vs. The King, AIR (37)

1950 Privy Council 26, the argument was that the trial and conviction

of the Appellants was void because the police investigation which led

upto the trial was conducted illegally. Their Lordships of the Privy

Council opined (SCC, Page 27),:

Such a fault in procedure might have important consequences

but it could not in their Lordships judgment deprive the Chief
Presidency Magistrate of his jurisdiction to try the appellants.

293. The Supreme Court in H.N. Rishbud and Inder Singh vs. State
of Delhi, (1955) 1 SCR 1150 = AIR 1955 SC 196, considered the
question as to whether defect or illegality in investigation vitiated the
trial. Referring to the provisions of Section 537 of the Code of
Criminal Procedure, it observed:- (SC, page 204)
If, therefore, cognizance is in fact taken, on a police report
vitiated by the breach of a mandatory provision relating to
investigation, there can be no doubt that the result of the trial
which follows it cannot be set aside unless the illegality in the
investigation can be shown to have brought about a miscarriage
of justice. That an illegality committed in the course of
investigation does not affect the competence and the
jurisdiction of the Court for trial is well settled as appears from
the cases in Prabhu v. Emperor and Lumbhardar Zutshi v.
The King. These no doubt relate to the illegality of arrest in the
course of investigation while we are concerned in the present
cases with the illegality with reference to the machinery for the
collection of the evidence. This distinction may have a bearing
on the question of prejudice or miscarriage of justice, but both
the cases clearly show that invalidity of the investigation has no
relation to the competence of the Court. We are, therefore,
clearly, also, of the opinion that where the cognizance of the
case has in fact been taken and the case has proceeded to
termination, the invalidity of the precedent investigation does
not vitiate the result, unless miscarriage of justice had been
caused thereby.

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294. In Mobarik Ali Ahmed vs. The State of Bombay, 1958 SCR
328 = AIR 1957 SC 857, the contention was raised that the trial stood
vitiated in view of the fact that the appellant was brought over from
England, where he happened to be by virtue of extradition
proceedings, in connection with another offence, the trial for which
was then pending in the Sessions Court at Bombay and accordingly
he could not be validly tried and convicted for a different offence, that
is, for the offence under Section 420 read with Section 34 of the
Indian Penal Code. The Supreme Court relying upon the decisions of
the Privy Council (supra) and its earlier decision in Rishbuds case
(supra) held:-
We are unable to accede to that contention. It may also be
mentioned that even if his arrest in India for the purpose of a
trial in respect of a fresh offence is considered not to be
justified, this by itself cannot vitiate the conviction following
upon his trial. This is now well-settled by a series of cases. (See
Parbhu v. Emperor; Lumbhardar Zutshi v. The King; and
H.N. Rishbud v. State of Delhi). This contention must
accordingly be overruled.

295. Next, a somewhat feeble attempt was made by Mr. Sharma

to contend that the testimony of PW-60 Head Constable Mahabir
was not worthy of credence since as per the testimony of this
witness, he was present with the Investigating Officer at Thyagraj
Stadium and he is also shown as a signatory to the arrest memo of
the Appellant Mukesh who was arrested at Safdarjung Hospital at
the same time. We find this contention to be entirely devoid of
force. The learned counsel has clearly misread the testimony of
the witness. PW-60 Head Constable Mahabir in his cross-

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examination in Court clearly stated that on that day, that is, on
18.12.2012 he had gone to Thyagraj Stadium with the
Investigating Officer at 5.00 P.M. and thereafter to Safdarjung
Hopsital. He further clarified that he actually went to Thyagraj
Stadium twice. Once before going to the hospital and then from
S.J. Hospital. In cross-examination, he stated that they left
Thyagraj Stadium at about 8:30 PM and returned to S.J.
Hospital where they stayed for about 30/45 minutes before returning
to the poice station at about 10.00 P.M.
296. In the context of non-mention of the names of the
Appellants in the First Information Report, Mr. M.L. Sharma
contended that this circumstance by itself was fatal to the case of
the prosecution. He relied upon the following decisions:-
(i) Mitter Sen and Others vs. State of U.P., AIR 1976 SC 1156
(ii) Devinder vs. State of Haryana, 1997 SCC (Crl.) 570
(iii) State vs. Ramesh, 1998 Criminal Law Journal 4233
(iv) Rehmat vs. State of Haryana, 1997 Criminal Law Journal
764 = AIR 1997 SC 1526
(v) Jagir Singh v. State of Delhi, 1975 SCC (Cri.) 129
(vi) Husna vs. State of Punjab, (1996) 7 SCC 382
297. Suffice it to note that in the first five cases, the parties were
known to each other. These cases, therefore, are of no assistance
to the defence. In the last case, the Supreme Court came to the
conclusion that the prosecution was not able to satisfactorily
establish the case against the Appellant Rupa beyond reasonable
doubt as his presence at the time of occurrence was not

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satisfactorily proved. The Court, however, came to the conclusion
that the evidence on the record had brought home the charge
against Appellant Husna beyond every reasonable doubt and his
conviction and sentence for the various offences as recorded by
the trial court called for no interference.
298. Relying upon the decision of the Supreme Court in Sunil
Kumar Sambhudayal Gupta vs. State of Maharashtra, (2010) 13
SCC 657, Mr. Sharma further contended that where the complainant
in the FIR or the witness in his statement under Section 161 Cr.P.C.
has not disclosed certain facts but meets the prosecution case first
time before the Court, such version lacks credence and is liable to be
discarded. Reference was made by him in this context to paragraph
33 of the said judgment. We are constrained to state that the said
paragraph cannot be read in isolation with the rest of the judgment for
in the succeeding paragraphs, i.e., paragraphs 34 to 37, the Court has
held that marginal variations in the statements cannot be dubbed as
improvements as the same may be elaborations of the statement made
by the witness earlier. It further held that the omissions which
amount to contradictions in material particulars, i.e., go to the root of
the case/materially affect the trial or core of the prosecution case,
render the testimony of the witness liable to be discarded. No such
contradictions or improvements have been poined out to us in the
instant case and this judgment, therefore, has no application to the
facts of the present case.
299. Mr. Sharma further contended that if two views are possible
on the evidence adduced in the case, the view which is favourable

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to the accused should be adopted. Reliance in this context was
placed by him upon the judgment of the Supreme Court in Bihari
Nath Goswami vs. Shiv Kumar Singh and Others, (2004) 9 SCC
186, wherein it is laid down that the golden thread which runs
through the administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case, one pointing
to the guilt of the accused and the other to his innocence, the view
which is favourable to the accused should be adopted. It is
noteworthy that the aforesaid observations were made in a case where
the appeal was against the acquittal of the accused and the Court held
that a miscarriage of justice which may arise from the acquittal of the
guilty is no less than from the conviction of an innocent. In any
event, this judgment will have absolutely no relevance where the
prosecution proves its case beyond reasonable doubt and no
alternative hypothesis is established by the defence.
300. Another contention sought to be raised by Mr. M.L. Sharma
was that the FIR in the instant case was lodged after the police had
already visited the spot. For the aforesaid contention, Mr. Sharma
relied upon a judgment of the Madhya Pradesh High Court in
Mantram vs. State of M.P., 1997 (2) Crimes 550 (M.P.). In the cited
case, the finding of the Court essentially rests on the fact that the
maker of the FIR (PW-3) had not proven the same. The case
proceeded on the basis that the report had been lodged with the police
by one Mathurabai whereas the FIR was lodged later on by one
Kashiram (PW-7) who was also an injured witness. The Court came
to the conclusion that it was on learning about the incident obviously

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from Mathurabai that the investigating agency had come into motion
and reached the spot and thereafter they had brought in two eye
witnesses and Ex.P-19 was recorded to which no sanctity could be
attached firstly because it cannot be treated to be an FIR and secondly
it was not even proved through the maker thereof. It further opined
that the said report was brought into being after deliberations with the
prosecution witnesses and implicit reliance cannot be placed on the
testimony of such partisan witnesses. This case turns on its own facts
and has no relevance to the present case. In the present case, the FIR
was lodged at 5:40 AM on 17.12.2012 and only after the registration
of the FIR, the Investigating Officer went to the spot.
301. On the aspect of disclosure, Mr. M.L. Sharma, learned defence
counsel relied upon the following decisions, all of which are wholly
inapplicable to the facts of the present case:-
(i) Shanker Raju Banglorkar vs. State of Goa, 1992
Criminal Law Journal 3034 In this case, the Court
came to the conclusion from the evidence on record that
the alleged disclosure was made by the accused in the
police station while he was in handcuffs and that it was
the outcome of duress, pressure or threats given by the
police and, therefore, not admissible in view of Article
20 of the Constitution. Disbelieving the prosecution that
the accused had led the police to the place where the
charas had been kept in his house, the Court quashed the
conviction and set it aside. Suffice it to note that this
case turns on its own peculiar facts in which the Court

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 found that the entire case of the prosecution was an
unreal one, fraught with inconsistencies and
improbabilities which have been detailed in the judgment
itself.
(ii) Meghaji Godadji Thakore vs. The State of Gujarat,
1993 Criminal Law Journal 730 In this case, it was
held that a joint statement by two accused persons
leading to discovery is not per se inadmissible but is a
very very weak piece of evidence as it would be difficult
to come to the conclusion which of the two accused
persons gave any specific and definite information to the
police and panchas, which related distinctly to the
discovery of the place of the complainant from where the
offence of house breaking was committed. In this view
of the matter, the aforesaid discovery evidence cannot be
used against the accused persons in order to connect
them with the crime in question. In the instant case,
there is no joint statement and hence this case has no
relevance.
(iii) State of Karnataka vs. M.V. Mahesh, (2003) 3 SCC 353
In this case, the Supreme Court expressed doubt as to
whether the statement made by the Appellant really led
to the discovery of the bones of the deceased, inasmuch
as the police had already information through another
witness and that circumstance was strongly relied upon
by the High Court. The High Court held that the

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 statement made by the Respondent did not lead to any
discovery since the information was already in
possession of the police and that reasoning was endorsed
by the Supreme Court. This case again has no relevance
to the facts of the present case.
(iv) Kailash Potlia vs. State of Andhra Pradesh, (2008) 13
SCC 266 It was held that the evidence regarding
alleged extra judicial confesion and recoveries made in
pursuance of Section 27 Evidence Act did not inspire
confidence as also the testimony of the recovery witness.
From the tenor of the cross-examination and answers
given by the sole recovery witness, the Court found that
it was clear that he did not know the place of recovery.
This case is based on its own peculiar facts.
(v) Harish Chander and Billa vs. State, 1995 Criminal Law
Journal 3036 The alleged recovery of a nylon rope at
the instance of the accused was held to be doubtful in
this case as the recovery was made from an open public
place and no evidence was led by the prosecution to
show that the said piece of nylon rope was kept hidden
there. This case also has no relevance to the present
case.
EVIDENCE AGAINST EACH OF THE ACCUSED PERSONS
302. The primary evidence against accused Ram Singh, Akshay
Kumar, Vinay, Pawan and Mukesh is the testimony of PW-1
Awninder Pratap.

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303. Before we reproduce the testimony of PW-1, however, the first
aspect which deserves to be highlighted is that the complainant/eye
witness also happens to be an injured witness. The narration of
events described by him thus assumes great significance when it is
kept in mind that the settled legal position is that the version of an
injured eye witness carries greater evidentiary value than the
statement of an eye witness simpliciter [Akhtar v. State of
Uttaranchal (2009) 13 SCC 722]. The second aspect which is
required to be borne in mind is that the statement of PW-1 recorded in
Court more or less reiterates the entire incident almost verbatim as
narrated by the witness to the Metropolitan Magistrate at the time of
the recording of his statement under Section 164 Cr.P.C. (Ex.PW-
1/B). The third aspect which is required to be highlighted is that the
record reveals that all aspects of the testimony of PW-1 have been
independently corroborated by other witnesses examined by the
prosecution. With the aforesaid background, we proceed to examine
the version of the complainant given by him before the learned trial
court. In his statement made to the Court, PW-1 testified as follows.
304. On 16.12.2012, at about 3.30 PM, he (PW-1) took the
prosecutrix from the bus stand of Sector-1, Dwarka, New Delhi
to Select City Mall at Saket in an auto. After reaching the said
Mall, they watched the movie Life of Pi for the show at 6.30
PM. At about 8.30 PM, they left Select City Mall, Saket. As
they could not get an auto for Dwarka, they hired an auto for
Munirka bus stand from where they could get a bus of Route
No.764, for Dwarka. At about 9.00 PM, they reached at

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Munirka bus stand and found a white colour bus on which
YADAV was written. The bus had yellow and green stripes
on it. The entry gate of the bus was ahead of the front tyre, as
is usually the case in luxury buses, and the front tyre was not
having a wheel cover. A boy in the bus was calling out for
commuters for Dwarka/Palam Mod, which boy insisted on their
boarding the bus. Both of them boarded the bus and as they
boarded, they saw that besides that boy two other persons were
sitting in the drivers cabin along with the driver of the bus. The
driver was of blackish complexion. As they entered the bus,
they found that it was a 3 x 2 seater bus, i.e., three seats behind
the driver's seat and two seats on the other side. One person was
sitting on the left side, i.e., on the two seats and another one was
sitting on the right side, i.e., on three seats just behind the
driver's seat. The complainant and his friend sat behind the
person who was sitting on the left side of the bus, i.e., on the
two seats row. After entering the bus, he (PW-1) noticed that the
seat covers were of red colour, the curtains were of yellow colour
and the windows of the bus had black film on it. The windows were
at quite a height, as in luxury buses. As he sat down inside the bus,
he noticed that the persons who were sitting in the drivers cabin
were coming and returning to the drivers cabin. He paid an amount
of ` 20/- as bus fare to the conductor, i.e., ` 10/- per head.
305. After boarding the bus, he had a feeling that the persons
aforesaid did not allow anyone else to board the bus and immediately
started the bus and left Munirka bus stand. As the bus started, the

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accused put off the lights inside the bus and thereafter three
persons came towards him, i.e., the accused Ram Singh, the
accused Akshay Kumar (identified by him to be the persons who
were sitting in the drivers cabin along with the driver) and the
third being the Juvenile in Conflict with Law (JCL) [not being tried
by this Court]. All three persons started abusing them and asked
him (PW-1) where he was taking the girl (prosecutrix) in the
night. All three then started giving him fist blows on his face. He
got up from his seat and grappled with them. As he was resisting
them, these persons, called the other accused persons by name,
namely, accused Vinay and accused Pawan and asked them to bring
the iron rods. Accused Pawan Kumar was identified by the
complainant as the person who was sitting in front of him in the
two seats row of the bus and accused Vinay Sharma as the one who
was sitting on the three seats row just behind the drivers cabin.
Thereafter, all these four accused persons and the JCL (not being
tried by this court) gave beatings to him with two iron rods. On
account of the beatings administered to him, he got injuries on his
head, both his legs and all parts of his body. His friend (the
prosecutrix) during this period was shouting and calling for help
and was helping him. As she tried to call the police on her mobile
phone, the accused persons snatched away their mobile phones. He
had two mobiles with him, the numbers whereof were 9540034561
and 7827917720, and the prosecutrix had one mobile with her.
Both his mobiles were of dual SIM facility but at that time he had
only one SIM in each mobile, and both were of Samsung make.

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306. The further testimony of PW-1 is that because of the beatings
given to him, he fell on the floor of the bus and two of the
accused, namely, accused Pawan and accused Vinay, then pinned
him down and robbed him of all his belongings, including his
purse, containing a City Bank credit card, ICICI Bank debit card,
identity card issued by his company, metro card and ` 1,100/- in
cash; his watch of Titan make; one gold ring studded with
jewels and one silver ring studded with pearl; black colour Hush
Puppy' shoes, black colour Numero-Uno jeans; a grey pullover
and a brown (khaki) blazer. As he was pinned down by two of the
accused, the other two accused persons, namely, Ram Singh (since
deceased) and Akshay along with the third one, i.e., JCL (not being
tried by this Court) had taken the prosecutrix to the back side of the
bus, from where he could hear her voice saying Chod do, Bachao.
He also heard sounds of the prosecutrix being beaten by the other
accused persons. As and when he tried to reach the back side of
the bus, he was again beaten up by the accused persons by giving
him leg and fist blows. At that time, his friend was crying and
shouting in a loud voice and some time he could hear her voice
oscillating. Accused Ram Singh and Akshay @ Thakur and the
third one, i.e., JCL (not being tried by this Court) committed rape
upon the prosecutrix one by one. After sometime, these accused
came and pinned him down; and then accused Vinay and Pawan
went towards the back side of the bus and raped the prosecutrix.
Earlier the bus was moving at a fast speed, but after sometime the
speed of the bus was reduced and then he saw the accused who

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was driving the bus (Mukesh) come near him and he hit him with
the iron rod and he went to the back side of the bus and raped the
girl. He had heard one of the accused saying Mar Gayee, Mar
Gayee. As the accused were beating him, they took off all his
clothes and he was left in his under garment, i.e., his underwear.
307. PW-1 further deposed that the accused persons had not only
stripped him of his belongings but had also taken away all the
belongings of his friend, including her grey colour purse having an
Axis Bank ATM card and had even taken off all her clothes. Not
satisfied, they even took off his underwear and again gave beatings
to him with iron rod, exhorting that they should not be left alive.
They then pulled him near the rear door and put his friend on him.
The rear door was closed at that time, which they tried to open but
could not. The accused persons exhorted that they should be thrown
out of the bus from the rear gate and asked Ram Singh to bring the
key of the rear gate, which he brought, but the rear gate could not
be opened. Thereafter, they pulled him and his friend (the
prosecutrix) by their hair and brought both of them to the front
gate. They were then thrown out of the bus at the place opposite to
Hotel Delhi 37. After they were thrown out, the accused persons
took a turn and tried to crush them under the wheels of the bus. He
(PW-1), however, managed to save himself and his friend from the
wheels of the bus. When he set eyes on his friend for the first time
after they were thrown out of the moving bus, he found her naked and
bleeding from all parts of her body.

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308. The further testimony of PW-1 is to the effect that both he
and the prosecutrix were shifted to the hospital in a police
Gypsy drenched in blood. His first statement was recorded in the
hospital, which he had signed twice and which was Ex.PW-1/A.
After the recording of his statement, he had taken the Investigating
Officer to Munirka Bus Stand and had shown her the spot. At his
instance, she prepared the site plan of the spot. He then took the
Investigating Officer to the place where he and the prosecutrix were
thrown out of the moving bus by the accused persons. By then, the
crime team had also reached at that place. The Investigating Officer
prepared the site plan of the said spot and collected the exhibits,
including the blood lying at the spot in the presence of the Crime
Team. The IO then made inquiries from the nearby hotels, if they
had any CCTV installed in their premises, so that she could get
the CCTV footage, but to no avail. Ultimately, they came to the
Delhi Airport Hotel and he identified the CCTV footage of the
bus which he had boarded with his friend-the prosecutrix. The
said bus was seen in the footage twice. He, identified the bus
bearing No.DL-1PC-0149 as Ex.P-1, which at the relevant time
was lying parked near the lock-up.
309. Further, he stated that on 19.12.2012, he had come to the
Court of Shri Prashant Sharma, Metropolitan Magistrate, on which
date his statement under Section 164 Cr.PC was recorded, which he
identified after unsealing of the same in the trial Court as Ex.PW-
1/B (six pages). He stated that he had come to the Court for TIP
proceedings in the course of which he had identified his wrist watch

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and his shoes. The Test Identification Proceedings and his signatures
thereon were identified by him as Ex.PW-1/C (two pages). He further
identified one pair of shoes of make Hush Puppy (Ex.P-2) and
one wrist watch make Sonata (Titan) as Ex.P-3, which were
unsealed in Court. He stated that on 28.12.2012, he had again
visited the Saket court for identification of his ring and metro card
and identified the TIP proceedings regarding the ring as Ex.PW-
1/D, his silver ring as Ex.P-4 and his metro card as Ex.P-5. He stated
that he had gone for identification of the accused persons to Tihar
Jail. On 20.12.2012 he had identified accused Mukesh and on
26.12.2012 accused Akshay. The TIP proceedings regarding
accused Mukesh bearing his signatures were identified by him as
Ex.PW-1/E and those of accused Akshay as Ex.PW-1/F. His
mobile phone make Samsung Galaxy Duo was identified by him
as Ex.P-6 and on unsealing he identified the currency notes of
denomination of ` 500/- (two notes) and one currency note of
denomination of ` 100/- as Ex.P-7.
310. With regard to the testimony of PW-1, suffice it to state that
despite being extensively cross-examined by defence counsel, no
dent could be caused by the defence in the statement of PW-1. From
time to time, he was confronted with his statements made in the
course of investigation. Nevertheless, the defence failed to establish
any contradictions in his testimony and at the most was able to
establish an embellishment here and a flourish there. The testimony
of PW-1 has the ring of truth in it and is, therefore, resonatry of the
entire incident.

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311. Adverting next to the dying declarations of the prosecutrix
made before the first treating doctor (PW-49 Dr. Rashmi Ahuja), the
Sub-Divisional Magistrate (PW-27 Smt. Usha Chaturvedi) and the
learned Metropolitan Magistrate (PW-30 Shri Pawan Kumar). As
discussed above, all the three aforesaid statements made by the
prosecutrix are in line with each other and there is no such
inconsistency in the said statements as would enable us to discard
one or the other of the statements. It is no doubt true that the names
of the assailants have not been disclosed by the prosecutrix before
the first treating doctor (PW-49 Dr. Rashmi Ahuja) but the reasons
for her not doing so have been dealt with by us at great length
hereinabove and are not being repeated herein to avoid prolixity.
Suffice it to note that at the time of her admission in the hospital the
prosecutrix was in a critical condition and in no position to give
intricate details of the incident such as the names of her assailants.
The names of all the accused persons were disclosed by her at the
very first instance when she was declared fit for statement for the
first time on 21st December, 2012 before the learned Sub-Divisional
Magistrate as Ram Singh, Thakur, Raju, Mukesh, Pawan and Vinay.
In her statement recorded before the learned M.M. also, the
prosecutrix named her assailants by writing down their names with
precision except that one of the names was wrongly given by her as
Vipin instead of Pawan. This aspect having been dealt with at
great length hereinabove, we refrain from further elaborating on this
aspect.

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312. Then again, there is the evidence of res gestae against all the
accused persons. It is in evidence against the accused, as testified by
H.C. Ram Chander (PW-73), that on the way to Safdarjung Hospital
the victims described the incident to him and the fact that they were
beaten up, robbed, the prosecutrix gang raped and both thrown out of
the bus on the road near Mahipalpur flyover. The rule of res gestae
rests on the principle of law embodied in Section 6 of the Evidence
Act and has been elucidated by the Honble Supreme Court in
Gentela Vijayavardhan Rao and Anr. vs. State of A.P., (1996) 6
SCC 241. Thus, the essence of the doctrine is that a fact which,
though not in issue, is so connected with the fact in issue as to form
part of the same transaction becomes relevant by itself. This rule is,
roughly speaking, an exception to the general rule that hearsay
evidence is not admissible. The rationale in making certain statement
or fact admissible under Section 6 of the Evidence Act is on account
of the spontaneity and immediacy of such statement or fact in relation
to the fact in issue. But it is necessary that such fact or statement must
be a part of the same transaction. In other words, such statement must
have been made contemporaneous with the acts which constitute the
offence or at least immediately thereafter.
313. The prosecution has also established through DNA analysis the
involvement of bus Ex.P-1, the use of rods Ex.P-49/1 and Ex.P-49/2
and the dumping spot where the victims were thrown out of the bus
as follows:-

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(i) The DNA profile developed from hair and blood stained pieces
of paper recovered from the offending bus matched with the
DNA profile of the complainant.
(ii) The DNA profile developed from the blood stained dried
leaves collected from the place where the victims were thrown
out of the bus matched with the DNA profile of the
complainant.
(iii) The DNA profile developed from the blood stains on both the
iron rods (Ex. P-49/1 and Ex. P49/2) matched with the DNA
profile of the prosecutrix.
(iv) The DNA profile developed from the blood stains from
curtains of the bus matched with the DNA profile of the
prosecutrix.
(v) The DNA profile developed from the blood stained seat covers
of the bus matched with the DNA profile of the prosecutrix.
(vi) The DNA profile developed from the bunch of hair recovered
from the floor of the bus below sixth row seat, blood stains
from the roof of the bus near back gate, blood stains from the
floor of the bus near back gate, blood stains from side of rear
stairs of the bus, blood stains from the inner side of the rear
door of the bus, matched with the DNA profile of the
prosecutrix.
314. As regards the identification of the accused, accused Ram
Singh (since deceased) has been identified in Court by PW-1
Awninder Pratap and PW-82 Ram Adhar. On 18.12.2012, he refused
to participate in TIP proceedings Ex.PW-17/B conducted by PW-17

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Shri Sandeep Garg, Metropolitan Magistrate. It is also in evidence
against him that he was not unknown to the other co-accused. Thus,
co-accused Mukesh was the younger brother of the accused, co-
accused Akshay was the helper of the offending bus (Ex.P-1) of
which Ram Singh was the assigned driver, and accused Vinay and
Pawan were neighbours of this accused. Apart from this, there is
scientific evidence against accused Ram Singh showing the location
of the accused at the time of the incident. The movement of the
accused on 16.12.2012, as proved by CDR analysis (Ex.PW-24/A) of
phone No.9868612958 shows that at 10:04 PM and 10:06 PM, he
received two calls which were recorded by tower ID No.47541 and
No.47633 respectively, which show the movement of the accused
from Vasant Gaon towards Munirka. The movement of the bus has
been captured by CCTV footage, recorded by the CCTV installed at
Hotel Delhi Airport, seized from PW-67 Pramod Jha, the owner of
the said hotel vide seizure memo Ex.PW-67/A, which is proved by
the complainant (PW-1), SI Subhash (PW-74) and Gautam Roy (PW-
76). The bite marks found on the body of the prosecutrix, as
photographed in photograph Nos.1, 2 and 4 were found to be of
accused Ram Singh with reasonable medical certainty (highest
degree of certainty) after forensic analysis by Dr. Ashith B. Acharya
(PW-71). Further, on DNA analysis, the rectal swab collected from
the prosecutrix matched with the DNA profile developed from the
blood sample of accused Ram Singh. The DNA profile developed
from the blood stains on the underwear of accused Ram Singh
matched with the DNA of the prosecutrix. The DNA profile

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developed from the blood stains found on the recovered T-shirt (Ex.P-
74/6) and slippers (Ex.P-74/7) seized vide seizure memo Ex.PW-74/L
worn by the accused at the time of the incident, pursuant to the
disclosure made by him (Ex.PW-74/F), matched with the DNA
profile of the prosecutrix. The recovery of partially burnt clothes of
the victims and ash, pursuant to the disclosure made by the accused,
seized vide seizure memo Ex.PW-74/M, matched with the DNA
profile of the complainant. The recovery of the iron rods (Ex.P-49/1
and Ex.P-49/2), pursuant to the disclosure made by the accused,
seized vide memo Ex.PW-74/G, matched with the DNA profile of the
prosecutrix. As per the opinion of the doctors (Ex.PW-51/C), the
injury suffered by the complainant (PW-1) could be caused by the
two iron rods recovered at the instance of the accused, which could be
the weapon of offence which caused the severe perineal injury and
complete tear of posterior vaginal wall, recto vaginal septum, anus
and anal canal, anterior rectal wall as well as irreparable damage and
loss and severe injury to large and small intestines. Further, PW-2
Dr. Akhilesh Raj in his report Ex.PW-2/A has opined that the injuries
found on the body of accused Ram Singh at the time of his medical
examination could be possible due to struggle. Accused Ram Singh
has been specifically named by the prosecutrix as one of the persons
who had assaulted and raped her in her second dying declaration
recorded by PW-27 Smt. Usha Chaturvedi, SDM on 21.12.2012 as
well as in her third dying declaration recorded by PW-30 Shri Pawan
Kumar, the learned Metropolitan Magistrate. From the looted
articles, the recovery of the Indian Bank debit card (Ex.P-74/3) taken

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from the possession of the prosecutrix, seized vide seizure memo
Ex.PW-74/H, from accused Ram Singh is proved on record by PW-75
Smt. Asha Devi, the mother of the prosecutrix.
315. As regards accused Mukesh, the complainant/eye-witness (PW-
1) has testified that the accused was driving the offending bus (Ex.P-
1) which had picked up the prosecutrix and the complainant from
Munirka bus stand. The complainant/eye-witness (PW-1) has further
testified that after sometime the accused driving the bus came and hit
him with the rod and thereafter went to the rear of the bus and raped
the prosecutrix. The accused Mukesh has been identified in Court by
PW-1 Awninder Pratap and PW-82 Ram Adhar, PW-48 H.C. Giri Raj
and PW-58 S.I. Arvind Kumar. Accused Mukesh was also
identified by the complainant/eye-witness (PW-1) during the TIP
proceedings conducted on 20.12.2012 at Tihar Jail, by PW-17
Shri Sandeep Garg, learned Metropolitan Magistrate, which
proceedings were recorded as Ex.PW-1/E. It is also in evidence
against the accused that he was not unknown to the other co-accused.
He was the younger brother of co-accused Ram Singh, a neighbour of
co-accused Pawan and Vinay and also known to co-accused Akshay,
who worked as a helper in the bus (Ex.P-1) driven by accused Ram
Singh. As regards the scientific evidence against accused Mukesh,
the movement of the bus has been captured by CCTV footage
recorded by the CCTV installed at Hotel Delhi Airport, seized from
PW-67 Pramod Jha, the owner of the said hotel vide seizure memo
Ex.PW-67/A which is proved by the complainant (PW-1), SI
Subhash (PW-74) and Gautam Roy (PW-76). On DNA analysis, the

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DNA profile developed from the blood stains found on the pair of
pants, T-shirt and jacket recovered from the accused and seized vide
seizure memo Ex.PW-48/B matched with the DNA profile developed
from the sample of the blood of the prosecutrix. Accused Mukesh
after his abscondance though was apprehended from Karoli,
Rajasthan on 18.12.2012, his formal arrest was effected at SJ
Hospital at 6:30 PM by the I.O. S.I. Pratibha on confirmation that it
was the complainants mobile phone (Samsung Galaxy Duos Ex.P-6)
which was recovered from him. Accused Mukesh has been
specifically named by the prosecutrix in her second dying declaration
recorded by PW-27 Smt. Usha Chaturvedi, SDM on 21.12.2012
(Ex.PW-27/A) as well as in her third dying declaration recorded by
PW-30 Shri Pawan Kumar, the learned Metropolitan Magistrate
recorded on 25.12.2012 as one of the persons who raped her, inflicted
injuries on her person and that of the complainant, robbed them of
their belongings and threw them out of the bus believing them to be
dead. Significantly, accused Mukesh in his statement recorded under
Section 313 Cr.P.C. has corroborated the case of the prosecution in
material particulars.
316. As regards accused Vinay, the complainant/eye-witness (PW-
1) has testified that accused Vinay along with accused Pawan had
pinned down the complainant inside the offending bus Ex.P-1 and
beaten him up. He further testified that accused Vinay and Pawan
went to the rear of the bus and raped the prosecutrix after the other
accused had raped her and had come in front to pin him down. The
accused was identified in Court by the complainant/eye-witness (PW-

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1), Ram Adhar (PW-82), H.C. Mahabir (PW-60) and S.I. Vishal
Chaudhry (PW-18). Accused Vinay refused to participate in TIP
proceedings Ex.PW-17/B conducted by Mr. Sandeep Garg,
learned M.M. (PW-17) on 19.12.2012 without giving any reason
whatsoever. The identity of this accused has also been established
through fingerprint matching. Chance print marked as Q-1 found
in the offending bus (Ex.P-1) is found identical with the left palm
print specimen of accused Vinay, and chance print marked as Q-4
identical with the right hand thumb impression of accused Vinay.
PW-46 Mr. A.D. Shah, CFSL, CBI has proved on record the finger
print matching report in Court, which is marked as Ex.PW-46/D. It is
also in evidence against the accused that he was not unknown to the
other co-accused. He was a neighbour of co-accused Ram Singh,
Mukesh and Pawan and, therefore, also known to co-accused Akshay
who worked as a helper in bus Ex.P-1 driven by accused Ram Singh.
The identity of accused Vinay is also established by the prosecution
through scientific evidence. The analysis of the CDR (Ex.PW-22/B)
shows that two calls were made with the Nokia mobile phone of the
accused with IMEI No.354138058308218 at 7:58 PM and 8:19 PM
which were covered by the tower located at Ravi Dass Camp, Sector-
3, R.K. Puram. This proves that till 8:19 PM, the accused was at Ravi
Dass Camp. The analysis of the CDR (Ex.PW-22/B) further shows
that he made a call at 9:55 PM, which was covered by tower
No.55043 located at NH-8 near Mahipalpur. The application filed by
the accused for return of his mobile phone bearing No.8285947545
proves that the said phone belonged to the accused. The movement of

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the bus has been captured by CCTV footage recorded by the CCTV
installed at Hotel Delhi Airport seized from PW-67 Pramod Jha, the
owner of the said hotel vide seizure memo Ex.PW-67/A, which is
proved by the complainant (PW-1), SI Subhash (PW-74) and Gautam
Roy (PW-76). On DNA analysis, the DNA profile developed from
the stains found on the under garments of the accused matched with
the DNA profile developed from the sample of the blood of the
prosecutrix. The DNA profile developed from the blood stains found
on the jacket of the accused also matched with the DNA profile
developed from the sample of the prosecutrix. A separate DNA
profile developed from the blood stains found on the jacket of the
accused matched with the DNA profile developed from the sample of
the blood of the complainant. The DNA profile developed from a
pair of slippers of the accused matched with the DNA profile
developed from the sample of the blood of the prosecutrix. Accused
Vinay is mentioned by name in the dying declaration of the
prosecutrix recorded by PW-27 Smt. Usha Chaturvedi on 21.12.2012
and the dying declaration of the prosecutrix recorded by the
Metropolitan Magistrate on 25.12.2012 and named as one of the
persons who raped her, inflicted injuries on her person and that of the
complainant, robbed them of their belongings and threw them out of
the bus believing them to be dead. From the looted articles, pursuant
to disclosure Ex.PW-60/H made by the accused, the complainants
Hush Puppy shoes (Ex.P-2) and the Nokia mobile phone
belonging to the prosecutrix (Ex.P-68) were recovered from the
possession of the accused. The injury marks found on the person of

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the accused, recorded in his MLC (Ex.PW-7/C) are opined to be
suggestive of struggle. It is also relevant to mention that the answers
given by this accused during his examination under Section 313
Cr.P.C. before the Court and the evidence led in defence to prove his
plea of alibi have been established to be false by the rebuttal
evidence adduced by the prosecution and this too is a circumstance
which must go against the accused.
317. As regards accused Pawan, the complainant/eye-witness (PW-
1) has testified that accused Pawan along with accused Vinay pinned
down the complainant inside the offending bus Ex.P-1 and had beaten
him up. The complainant/eye-witness (PW-1) has further testified
that accused Pawan and Vinay went to the rear of the bus and raped
the prosecutrix after the other accused had raped her and had come in
front to pin him down. The accused was identified in the dock by the
complainant/eye-witness (PW-1), Ram Adhar (PW-82), H.C. Mahabir
(PW-60) and H.C. Giri Raj (PW-48). It is on record that he refused
to participate in the TIP proceedings (Ex.PW-67/B) conducted by
PW-17 Mr. Sandeep Garg, learned Metropolitan Magistrate on
19.12.2012 without giving any reason whatsoever. It is also in
evidence against the accused that he was not unknown to other co-
accused. He was a neighbour of co-accused Ram Singh, Mukesh and
Vinay and, therefore, also known to co-accused Akshay, who worked
as a helper in the bus Ex.P-1 driven by accused Ram Singh. As
regards the location of the accused at the time of the incident, call
detail records (Ex.PW-23/B) of the accused show the movement of
the accused on 16.12.2012 at 9:32 PM from Naval Officers Mess to

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Mehram Nagar. The evidence of PW-12 Santosh Kumar affirms this
fact. PW-12 Santosh Kumar, a neighbour of the accused, in his
deposition has stated that around that time, at the instance of the
mother of the accused, he had called the accused from his mobile
phone No.9873540952. The movement of the bus has been captured
by CCTV footage recorded by the CCTV installed at Hotel Delhi
Airport seized from PW-67 Pramod Jha, the owner of the said hotel
vide seizure memo Ex.PW-67/A, which is proved by the complainant
(PW-1), SI Subhash (PW-74) and Gautam Roy (PW-76). On DNA
analysis, the DNA developed from the sweater of accused Pawan
matched with the DNA profile developed from the sample of the
blood of the prosecutrix. A separate DNA profile developed from the
sweater of the accused matched with the DNA profile developed from
the sample of the blood of the complainant. The DNA profile
developed from the pair of shoes worn by the accused at the time of
the incident matched with the DNA profile developed from the blood
of the prosecutrix. The prosecutrix in her dying declaration recorded
on 21.12.2012 by the SDM Smt. Usha Chaturvedi has specifically
named accused Pawan as one of the persons who raped her, inflicted
injuries on her person and that of the complainant, robbed them of
their belongings and threw them out of the bus believing them to be
dead. From the looted articles, recovery of the complainants wrist
watch make Sonata (Titan) [Ex.P-3] pursuant to the disclosure made
by the accused and recovery of two currency notes (Ex.P-7) of the
denomination of ` 500/- each looted from the complainant seized
vide seizure memos Ex.PW-60/G and Ex.PW-68/G and respectively,

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are proved on record. The MLC of the accused Ex.PW-10/A shows
that on the date of the said MLC the injuries found on the body of the
accused were proved to be 2-3 days old by PW-7 Dr. Shashank Punia
(Ex.PW-7/B). It is also relevant to mention that the answers given by
this accused during his examination under Section 313 Cr.P.C. before
the Court and the evidence led in defence to prove his plea of alibi
have been established to be false by the rebuttal evidence adduced by
the prosecution and this too is a circumstance which must go against
the accused.
318. As regards accused Akshay, the complainant/eye-witness (PW-
1) has testified that soon after he boarded the bus with the prosecutrix
from Munirka bus stand, the accused came towards him (along with
accused Ram Singh and the JCL), and started abusing and giving fist
blows on his face. Then the accused beat him with iron rods as a
result of which he got injuries on his head, legs and other parts of the
body. The complainant/eye-witness (PW-1) has further testified that
accused Akshay (along with accused Ram Singh and the JCL) took
the prosecutrix towards the rear side of the bus and that he could hear
her cries for help. The complainant/eye-witness (PW-1) also testified
that he heard the sounds of the prosecutrix being beaten up at the rear
of the bus by the accused, and sometimes her voice was oscillating.
He further testified that accused Akshay, accused Ram Singh and the
JCL, had commited rape upon the prosecutrix one by one. The
complainant/eye-witness (PW-1) further testified that accused Akshay
(along with accused Ram Singh and the JCL) then came towards the
complainant and pinned him down. Accused Akshay was identified

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in the dock during his testimony by the complainant/eye-witness
(PW-1), Ram Adhar (PW-82) and also by S.I. Jeet Singh (PW-61).
The accused was also identified by the complainant/eye-witness
(PW-1) in TIP proceedings (Ex.PW-1/F) conducted on 26.12.2012
at Central Jail No.4, Tihar Jail complex by the learned
Metropolitan Magistrate Monika Saroha (PW-8). A bite mark
found on the body of the prosecutrix photographed in
photograph No.5 is most likely found to be that of the accused on
forensic analysis by Dr. Ashith B. Acharya (PW-71) in his report
Ex.PW-71/C. It is also in evidence against the accused that he was
not unknown to other co-accused. He worked as a helper in the bus
Ex.P-1 driven by accused Ram Singh and was, therefore, known to
accused Mukesh who was the younger brother of accused Ram Singh,
and accused Pawan and Vinay who lived in the same neighbourhood.
The movement of the bus has been captured by CCTV footage
recorded by the CCTV installed at Hotel Delhi Airport seized from
PW-67 Pramod Jha, the owner of the said hotel vide seizure memo
Ex.PW-67/A which is proved by the complainant (PW-1), SI
Subhash (PW-74) and Gautam Roy (PW-76). On DNA analysis, the
DNA profile developed from the breast swab from the prosecutrix
matched with the DNA profile of the accused. This also tallies with
the analysis of the bite mark in the report of the forensic expert PW-
71 Dr. Ashith B. Acharya. The DNA profile developed from the
blood stains found on the T-shirt and pair of slippers of accused
Akshay matched with the DNA profile developed from the sample of
the blood of the prosecutrix. The DNA profile developed from the

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blood stained jeans of the accused matched with the DNA profile
developed from the sample of the blood of the complainant. In her
dying declarations Ex.PW-27/A recorded by the SDM Smt. Usha
Chaturvedi on 21.12.2012, the prosecutrix has named the accused as
one of the persons who had assaulted and raped her and had also
assaulted the complainant and thrown them out of the moving bus.
In her dying declaration recorded on 25.12.2012 by PW-30 Shri
Pawan Kumar, learned M.M. also the accused has been named by the
prosecutrix. From the looted articles, the recovery of the
complainants silver ring (Ex.P-1) pursuant to the disclosure of the
accused Ex.PW-63/I on 27.12.2012, seized vide memo Ex.PW-68/M,
the recovery of the complainants metro card (Ex.P-5) on 27.12.2012
pursuant to the disclosure made by the accused seized vide memo
Ex.PW-68/M from the residenc of his brother at House No.1943,
Gali No.3, Rajeev Nagar, Gurgaon further inculpates the accused.
The MLC of the accused Ex.PW-7/A reflects injury suggestive of a
struggle. The abscondence of the accused and his arrest after five
days, i.e., on 21.12.2012 at 9 PM from village Karmalangh, P.S.
Tandwa, District Aurangabad, Bihar (Ex.PW-53/A) is established by
his answer to Question No.122 given at the time of recording of his
statement under Section 313 Cr.P.C. in which he admitted that his
arrest was made from Tandwa, Bihar on 21.12.2012. It is also
relevant to mention that the answers given by this accused during his
examination under Section 313 Cr.P.C. before the Court and the
evidence led in defence to prove his plea of alibi have been
established to be false by the rebuttal evidence adduced by the

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prosecution and this too is a circumstance which must go against the
accused.
319. From the aforesaid, it stands established on record that all the
accused persons have committed the several offences under the
Indian Penal Code for which they have been tried and convicted by
the learned trial court with the exception of accused Ram Singh
proceedings against whom abated in the course of trial.
CONCLUSIONS

320. The prosecution in the instant case claims that the identity and
involvement of each of the accused persons has been established
beyond doubt both by the traditional method of proving identity and
by scientific methods. The defence naturally contends to the
contrary.
321. At the risk of repetition, it may be reiterated that the main
thrust of the defence with regard to the identification of the accused is
that the accused were not identified by the victims in the first instance
and it was only after the registration of the First Information Report
that the investigators implicated the accused through manipulation as
by then the incident had attracted the attention of the public and the
media and political pressure had mounted on the Government to such
an extent that the investigators who were unable to apprehend the real
culprits succumbed to the easier course of putting the accused, who
were innocent persons, in the dock to suit their own purposes.
322. The question which arises for consideration is:

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 Has the identity of the accused been proved beyond
any iota of doubt or is there some force in the
contention of the defence that the real culprits have
not been nailed?
323. For answering the aforesaid extremely vital matter, we have
with the utmost care gleaned through the voluminous evidence on
record, pausing at each juncture to test the veracity of the same.
Indubitably, the names of the accused persons do not find mention
either in the MLC of the prosecutrix or in the first statement made by
her companion before the police, which statement was treated as the
rukka in the instant case and given the shape of the First Information
Report. There is, however, no denying the fact that the victims when
brought to Safdarjung Hospital had suffered trauma to an extent
which an ordinary mortal possibly cannot visualize. PW-1 had been
badly beaten up with iron rods on his head, face, eyes, knees and all
parts of his body and the prosecutrix had been gang raped by six able-
bodied men, one after the other, beaten with rods and bitten all over
her body. When she arrived at the hospital, she had a tag of six cms.
long vagina hanging out of her introitus, her vaginal and rectal walls
were torn and her insides had been culled out with the hands of her
tormentors, who had used iron rods as well. She was vasoconstricted,
clammy and cold on account of the loss of blood as she was bleeding
profusely. Her vital parameters were far from stable, and as reflected
by her MLC she was suffering from drowsiness and unable to
recollect how many times she had been subjected to sexual
intercourse. She stated that she remembered sexual intercourse twice

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and the fact that she was subjected to vaginal and anal intercourse but
she was rendered unconscious after that. The MLC further shows that
she was immediately referred to the Surgical department after
infusion of I.V fluids and administration of warm saline on account of
the huge loss of blood suffered by her. In such a situation, to expect
from her to recapitulate the names of her assailants with which names
she was not familiar would possibly be stretching it too far.
324. It is a settled legal proposition that mere non-mention of the
names of the assailants and/or their overt acts elaborately or details of
injuries said to have been suffered by the victim/s would not render
the FIR vague or unreliable. The FIR is not after all an encyclopaedia
of all facts; and when a large number of accused are involved, it is
quite natural that the names and details may not be given in the FIR.
325. Great emphasis was placed by Mr. A.P. Singh, learned defence
counsel, on the statement made by PW-49 Dr. Rashmi Ahuja in her
cross-examination that she had asked the girl the names of her
assailants but she did not remember them. Mr. M.L. Sharma, learned
defence counsel has also highlighted the fact that in his first statement
made before the police, PW-1 Awninder Pratap did not mention the
names of the accused persons though the injuries sustained by him
were subsequently opined to be simple in nature. We are unable to
find any force in the aforesaid submissions made by learned defence
counsel. At the relevant time, the victims were beaten, traumatized
and assaulted in an unimaginable manner before being thrown out of
the bus. There was considerable time lag between the time when they
were thrown out of the bus and the time they were rescued. The

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incident had transpired much before 10 PM and their arrival at
Safdarjung Hospital has been documented to be at 11.00-11:30 PM.
Their throbbing injuries and the rigors of the weather coupled with
the state of their minds must have at that point of time brought forth
their instinct of survival and self preservation. The desire to have
apprehended their assailants and to mete out just desserts to them
could not have been their priority. A look at the MLC of PW-1, (the
complainant) shows that though he may not have sustained injuries of
the nature sustained by his companion, he had been beaten all over his
body with iron rods, apart from being beaten with hands and fists. He
was called upon to defend the honour and the physical form of the girl
he was accompanying, but he was one against six. That he yet
attempted to protect her from the savagery of the six bespeaks of the
valiant front put up by him against all odds. The prosecutrix has in
her dying declarations clearly stated that each time she was raped, he
was pinned down by two to three of the accused persons by beating
him with iron rods. In the circumstances, therefore, we are not
inclined to attach too much importance to the fact that the names of
the accused persons were not disclosed precisely at 11:30 PM when
the victims were brought to the hospital. It is, however, beyond cavil
that it is for the prosecution to lend us assurance that the accused
persons were indeed the much maligned culprits in the instant case.
326. In the aforesaid backdrop, we embark upon examining the
evidence adduced by the prosecution to establish the identity of the
accused. At the risk of repetition, it is highlighted that the first arrest
made in the instant case was that of Ram Singh (since deceased). The

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arrest memo shows that Ram Singh was arrested at 4 P.M. from Ravi
Dass Camp, R.K. Puram, New Delhi. Much prior to his arrest and
possibly as soon as PW-1, the complainant recovered his senses after
being administered medical aid, he described the bus in which the
occurrence had taken place in great detail. His statement with regard
to the description of the bus was recorded by the I.O. S.I. Pratibha at
about 7.30 a.m., as soon as she took over the reins of the
investigation. Shortly thereafter, at around 12 noon, he named the
accused persons as Ram Singh, Raju, Pawan, Vinay, Mukesh and
Thakur. Thus, more than four hours prior to the arrest of the
first of the accused persons, i.e., Ram Singh, the names of all the
culprits had been entered in the daily diary of the police
delineating the precise role played by them in the incident.
327. The victim-girl also disclosed the names of the culprits at the
earliest. There is medical evidence on record to establish that she was
unfit for statement for a duration of four days, after undergoing
surgery (jejunostomy) in the night intervening 16.12.2012 and
17.12.2012, i.e. on the 17th, 18th, 19th and 20th of December, 2012. It
was on 21st December, 2012, therefore, that she was declared fit for
statement for the first time after the occurrence and the Investigating
Officer who had been seeking opinion from the doctors on her
medical status on a daily basis was given clearance for recording her
statement. The Investigation Officer immediately sprung into action
by sending for the Sub-Divisional Magistrate to do the needful. In
her statement recorded by the Sub-Divisional Magistrate on 21st
December, the victim disclosed the names of all the six accused

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persons as Ram Singh, Thakur, Raju, Mukesh, Pawan and Vinay.
At the time of the recording of her subsequent statement by the
Metropolitan Magistrate under Section 164 Cr.P.C., on 25th
December, 2012, she chose to write down the names of the accused
persons since she was not in a position to communicate verbally, but
had been declared fit by the concerned doctors for non-verbal
communications through gestures and the like. The said sheet of
paper on which she scribed the names of the accused persons reveals
the names to be Ram Singh, Mukesh, Vinay, Akshay, Raju and
Vipin. This sheet of paper Ex.PW-30/E was scribed by her in the
presence of the Metropolitan Magistrate and bears her signatures.
The contention of the learned defence counsel with regard to this
document is that it is a fabricated one, in that the victim was not in a
position to write the names of the accused persons. It is also sought
to be contended that without forensic examination the document
cannot be allowed to stand. As already discussed above, we do not
see any reason why this document should be discarded from
consideration. The signature of the prosecutrix appears on each and
every page of her statement made before the learned Magistrate.
True, she was not in a position to verbally communicate on account of
the fact that she had an endo- tracheal tube in her larynx and trachea,
but as opined by the doctors she was otherwise fit to make her
statement. If she was in a position to affix her signature on each
and every page of her dying declaration made before the
Magistrate, she certainly could have written down the names of
the accused persons. The fact that the name of one of the accused

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persons Pawan is not mentioned in this document and instead
Vipin is mentioned by her is not sufficient in our opinion to
discredit the statement of the Magistrate that the names were written
by her in his presence. The Magistrate had no axe to grind insofar as
the accused persons were concerned and why he should be a party to
the fabrication of a document is, therefore, beyond our
comprehension. Had he been inclined to fabricate, there was nothing
to prevent him from mentioning the correct name in the allegedly
fabricated document. It appears to us that the very fact that one of the
names has not been correctly given in the said document is an
assurance that the document is not a fabricated one. At the most, we
are put to caution with regard to the accused whose name has been
wrongly mentioned in this document, namely, accused Pawan and a
heavier burden will, to our mind, lie on the prosecution to establish
the identity of this particular accused person.
328. We also note that the argument that document Ex.PW-30/E is a
fabricated document which ought to be put to the handwriting expert,
had it been raised at the relevant time before the learned trial court,
there is no reason why the trial court would not have sent the
document to the handwriting expert, but in that case the accused
persons would have run a heavy risk, and possibly for this reason
though one application after another was filed before the learned trial
court on behalf of the accused persons on various grounds, the
learned defence counsel wisely chose not to apply for the examination
of the document by a handwriting expert. For the defence to turn
round at this juncture and urge to the contrary in the hope of

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deliverance would amount to allowing them to make capital out of the
situation.
329. With the aforesaid aspects in mind, it is now proposed to
examine one by one the methods adopted by the prosecution,
traditional as well as scientific, to establish the identity of the culprits
and to gauge the extent of their success or otherwise in doing so.
330. For the purpose of dock identification of the accused persons,
the prosecution has principally relied upon the testimonies of PW-1
Awninder Pratap Pandey and PW-82 Ram Adhar.
331. Awninder Pratap Pandey, the complainant/injured eye
witness (PW-1) has identified all the accused persons during his
deposition in Court. He identifies accused Mukesh to be the person
who was sitting on the drivers seat and as driving the bus; accused
Ram Singh and accused Akshay Kumar to be the persons who were
sitting in the drivers cabin along with the driver; accused Pawan
Kumar as the person sitting in front of him in the two seats row of
the bus and accused Vinay Sharma as the person sitting on the three
seats row just behind the drivers cabin. PW-1 also testified that the
conductor who was calling out to passengers to board the bus was not
amongst the accused persons present in the Court (the JCL, who was
tried separately by the Juvenile Justice Board). In his further
testimony (which is not being reproduced again in order to avoid
prolixity), he graphically delineated the role played by each of the
accused persons by name.
332. Adverting to the dock identification of the accused persons by
PW-82, Ram Adhar, the said witness, who is also the complainant in

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case FIR No.414/2013, P.S. Vasant Vihar, clearly described the
incident which took place with the same accused persons being the
key players and in which he was the unfortunate victim. He testified
that on 16.12.2012, he finished his work at Munirka at 8.30 PM and
was proceeding towards Sangam Vihar. He boarded the bus from
Subzi Mandi, which was across the road from his work place. When
he was standing at the bus stop, a white bus came there and the
helper was calling Khanpur Khanpur. He boarded the bus and
when the bus started moving out, he was told by one of the
occupants that the bus was going to Nehru Place. He tried to get
down from the bus, but was administered beatings by one of the
persons in the bus who was having burn injury on one limb.
Another person inside the bus pulled him towards the back side of
the bus, where the accused persons gave beatings to him and
snatched all his belongings, i.e., a mobile having two Sims and `
1,500/- in cash.
333. PW-82 Ram Adhar identified accused Akshay in the dock as
the person who had pulled him behind when the person having burn
injury on his hand gave blow on his body (deceased Ram Singh). He
further identified accused Mukesh as the person who was driving the
bus, accused Vinay as the person who gave beatings to him and
removed his possessions and accused Pawan who also gave beatings
to him. He further stated that the person whose hand was burnt
was not present in the Court and the JCL was also not present in
the Court. He testified to the fact that the accused persons had
torn his clothes and thrown him out from the moving bus at the

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IIT flyover in such a manner that he should come under the
wheels of a truck moving by the side of the bus.
334. From the aforesaid statement of PW-82 Ram Adhar, it
stands established on record that apart from identifying all the
accused persons in the dock (accused in case FIR No. 413/2012
as well), he clearly defined the role played by each of the
accused persons in the earlier incident, which transpired
immediately prior to the occurrence in the present case. The
testimony of this witness was sought to be brushed aside by the
learned defence counsel on the ground that no complaint was
made by him to the police after the incident, but we find that this
aspect has been satisfactorily explained by the witness in the
course of his cross-examination in which a specific query was
put to him by learned defence counsel as to why he did not go to
the police. The witness, though an illiterate one being a
carpenter by profession, explained that after he had taken initial
treatment at his house by applying lukewarm salty water, he saw
the news about the bus in question, having registration No.0149,
and then he telephoned one Sanjeev Bhai of Munirka in the
evening of 17.12.2012. The latter asked him to reach his office
on the next day, i.e., on 18.12.2012. He did so and then both of
them went to the police station and met a lady officer who
lodged his report. His statement was then recorded and he was
taken to SJ Hospital for his medical examination. In his further
cross-examination, he stated that on 17.12.2012 also he had
telephoned the police. There is thus nothing in the testimon y of

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this witness to discredit the version of the incident given by him,
the role played by each of the accused persons in the said
incident in which he was the sole victim and his identification of
the said persons as the persons who were aboard the bus in
question at the relevant time.
335. We note also that the above testimony of PW-82
establishes also the fact that the pattern of the subsequent
incident in which PW-1 and the prosecutrix were the victims was
exactly the same as the incident which had transpired with PW-
82. The modus operandi adopted by the accused persons on the
second occasion was no doubt somewhat varied to suit their
convenience since in the later incident they had ensnared a girl
victim as well. This apart, the manner in which they entrapped
their victims by inducing them to board the bus, ripping them of
their material possessions, tearing off their clothes and then
throwing them out of the moving bus in such a manner as to
eliminate them, shows the working of the minds of the culprits ,
which, it is inconceivable could have been replicated by another
set of persons on the same very night. The entire sequence of
both the incidents of trapping, beating, robbing and eliminating
is discomfitingly identical, the eliminating being for the purpose
of destruction of vital human evidence against them. To the
incident in the instant case, raping has been added. The brutality
with which the rape victim in the instant case has been dealt
with was also quite obviously for the purpose of ensuring he r
annihilation, and it is only when they had assured themselves

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that she had met her maker (as is obvious from the use of the
words Mar gayee, Mar gayee by them) that the accused
persons threw out the complainant and what was to them the
dead body of the girl from the moving bus, thereafter turning the
bus in such a manner as to ensure that the complainant also met
his end and the twain were rendered incapable of making any
disclosure of the horrible crime committed upon them.
336. Apart from the dock identification of the accused persons by
PW-1 Awninder Pratap Singh and PW-82 Ram Adhar, the accused
persons have been identified in the dock by other witnesses as
follows:-
(i) Accused Pawan and Vinay have been identified by Head
Constable Mahabir (PW-60), who testified that he had seen
accused Pawan and Vinay at the time of their arrest on the
pointing out of accused Ram Singh on 18.12.2012.
(ii) Accused Pawan and Vinay have also been identified by S.I.
Vishal Choudhary (PW-18) as he was a part of the police party
which had gone to arrest accused Vinay and Pawan, along with
accused Ram Singh pursuant to the disclosure of the latter.
(iii) Accused Pawan is also identified by H.C. Giri Raj (PW-48),
who testified that though the accused was in muffled face when
the witness had taken him for medical examination, when he was
being examined by the doctor, he had removed his muffler.
(iv) Head Constable Giri Raj (PW-48) also identified accused
Mukesh and testified that he had seen accused Mukesh on
23.12.2012 while he was pointing out and taking out the articles

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 from Garage No.2, Anupam Apartments, Saket as at that time he
had removed his muffler, though he was in muffled face when he
had led the police party to the place of recovery.
(v) Accused Mukesh was also identified by S.I. Arvind Kumar
(PW-58), who had apprehended him from Karoli, Rajasthan and
handed him over to the I.O. at Safdarjung Hospital on
18.12.2012.
(vi) Accused Akshay is identified by S.I. Jeet Singh (PW-61), being
a witness to the arrest of the accused at Tandwa, Bihar.

337. The sole ground on which the TIP of accused Akshay Kumar is
sought to be challenged is that the counsel for the accused was not
present with him when he was produced by the Assistant
Superintendent, Tihar Jail, and he was not provided with legal aid at
the time of the conduct of the TIP. At the time of hearing, learned
defence counsel was unable to point out any requirement in law that
the defence counsel should be present when the TIP is conducted or
even that any legal aid is required to be provided to the accused at the
stage of TIP.

338. We note that no element of coercion or unwillingness to join

the TIP proceedings on the part of accused Akshay has been brought
forth in evidence nor has the defence shown that any prejudice
whatsoever was caused to the accused person with regard to the
manner in which the TIP was conducted. The same applies with
equal force to the TIP proceedings qua accused Mukesh.

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339. Apart from the dock identification of the accused persons and
the identification of two of the accused persons in test identification
proceedings, the DNA reports conclusively establish the identity of
the accused persons and even assuming the traditional methods of
identification are ignored, the DNA findings by themselves are
sufficient to prove the identity of the accused and to further establish
the fact that the bus in question was the scene of occurrence, the iron
rods were the weapons of offence and the Mahipalpur Flyover was
the dumping spot where the victims were dumped after the
occurrence. The DNA profiles further establish the fact that the
prosecutrix was subjected to sexual intercourse per vagina as well as
per rectum and was bitten by some of the accused persons and rods
were inserted into her body as evidenced by the blood on the said rods
which was consistent with the DNA profile of the prosecutrix.
340. It deserves to be mentioned at this juncture that though DNA
testing obtained legislative recognition in India through the Code of
Criminal Procedure (Amendment) Act, 2005 by addition of Sections
53 and 53A, which expanded the scope of the term examination to
include DNA profiling, as early as in the year 2001, the Supreme
Court in the case of Kamti Devi v. Poshi Ram, (2001) 5 SCC 311
held that the method of proving identity through DNA profiling
was scientific and accurate.
341. In Pantangi Balarama Venkata Ganesh v. State of Andhra
Pradesh, (2009) 14 SCC 607, the Supreme Court on the submission
of learned defence counsel in that case that the report of DNA should
not be relied upon and cannot be accepted examined the question:

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What is DNA? in detail. The relevant extract of the judgment reads
as under (SCC, Page 617):-
41. Submission of Mr Sachar that the report of DNA should not
be relied upon, cannot be accepted. What is DNA? It means:

Deoxyribonucleic acid, which is found in the

chromosomes of the cells of living beings is the blueprint
of an individual. DNA decides the characteristics of the
person such as the colour of the skin, type of hair, nails
and so on. Using this genetic fingerprinting,
identification of an individual is done like in the
traditional method of identifying fingerprints of
offenders. The identification is hundred per cent
precise, experts opine.

There cannot be any doubt whatsoever that there is a

need of quality control. Precautions are required to be taken to
ensure preparation of high molecular weight DNA, complete
digestion of the samples with appropriate enzymes, and perfect
transfer and hybridization of the blot to obtain distinct bands
with appropriate control. (See article of Lalji Singh, Centre for
Cellular and Molecular Biology, Hyderabad in DNA profiling and
its applications.) But in this case there is nothing to show that
such precautions were not taken.

42. Indisputably, the evidence of the experts is admissible

in evidence in terms of Section 45 of the Evidence Act,
1872. In cross-examination, PW 46 had stated as under:

If the DNA fingerprint of a person matches with that of a

sample, it means that the sample has come from that
person only. The probability of two persons except
identical twins having the same DNA fingerprint is
around 1 in 30 billion world population.

342. In Santosh Kumar Singh Vs. State through CBI, (2010) 9

SCC 747, the Supreme Court, accepting the DNA report in the said
case as scientifically accurate and the DNA science as an exact
science, held that the trial court had been swayed by irrelevant
considerations into ignoring the complexity of the issue on a highly

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technical subject and substituting its own opinion for the opinion of
expert witnesses. In paragraph 71, it was observed (SCC, Page 772):-

71. We feel that the trial court was not justified in rejecting
the DNA report, as nothing adverse could be pointed out
against the two experts who had submitted it. We must,
therefore, accept the DNA report as being scientifically
accurate and an exact science as held by this Court in Kamti
Devi v. Poshi Ram [(2001) 5 SCC 311 : 2001 SCC (Cri) 892 :
AIR 2001 SC 2226] . In arriving at its conclusions the trial court
was also influenced by the fact that the semen swabs and
slides and the blood samples of the appellant had not been kept
in proper custody and had been tampered with, as already
indicated above. We are of the opinion that the trial court was in
error on this score. We, accordingly, endorse the conclusions of
the High Court on Circumstance 9.

343. In the case of Vinay Kumar v. State, 2012 (4) JCC 2857, a
Division Bench of this Court reiterated that the evidence of the
experts is admissible in evidence in terms of Section 45 of the
Evidence Act, 1872. Reliance was placed by the Division Bench
upon the decision of the Apex Court in State of H.P. V. Mast Ram
(2004) 8 SCC 660 wherein it was held that the report of DNA
fingerprint cannot be rejected on the ground that the government
scientific expert, who has issued the same, is not enumerated under
sub-section (4) of Section 293 of the Criminal Procedure Code. The
Supreme Court in the said case opined that the report of the DNA
fingerprint has to be admitted under sub-section (1) of Section 293 as
a report, which is issued under the hand of the government scientific
expert.
344. The Division Bench in Vinay Kumar (supra) also laid down
certain guidelines in respect of forensic examination of biological
evidence. The Court further held that in cases involving biological

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evidence, chain of custody needs to be established. There must
not be any missing links. The relevant observations with regard to
the chain of custody made in the said case read as under (JCC, Page
18):-
70. In cases involving biological evidence the concept of
chain of custody needs to be established. Chain of custody
means the complete record of biological evidence from the
place of its extraction and up to its presentation in the Court and
its complete documentation at every stage. The possession,
time and date of transfer, and location of evidence from the time
it is obtained to the time it is presented in the Court is called the
chain of custody.

345. In the light of the above, we conclude that in order to prove the
authenticity and correctness of DNA analysis, the prosecution must
establish the following:-
(i) The process of generation of DNA profiles from the
samples taken from the victims and the accused persons
individually.
(ii) The chain of custody from the generation of the samples
to their deposit with the CFSL Laboratory and upto its
presentation in the Court must be established beyond any
doubt. That is to say, to prove the DNA matching, it is
necessary to establish that the various exhibits which
were used for the purpose of DNA analysis were
received by the expert/laboratory without any tampering.
In other words, there was no manipulation with the
exhibits from the time of their generation till the time
they were received for forensic examination and

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 thereafter till the time the complete record of biological
evidence is presented in the Court.
(iii) The process of matching the DNA through the concerned
expert, thus linking the accused with the victims, the
scene of crime, the dumping spot and the weapons of
offence.

346. In the aforesaid backdrop, we have examined with utmost care

the evidence of the relevant prosecution witnesses, the authenticity
and veracity of the DNA reports Ex.PW-45/A, Ex.PW-45/B and
Ex.PW-45/C and the findings rendered by the author of the said
reports - Dr. B.K. Mohapatra (PW-45).
347. Adverting to the evidence of the prosecution with regard to the
authenticity of the biological samples as well as the fact that there
was no possibility of their contamination, we find that the chain of
custody of biological samples from the point of their generation to the
point of their being deposited with the CFSL is sought to be
established by the prosecution in the following manner:-
A. Re: Blood samples of the complainant, through the
testimonies of:
(i) PW-15 D.Kamran Faizal;
(ii) PW-42 Ct.Suresh Kumar;
(iii) PW-77 HC Rajender Prasad Meena;
(iv) PW-31 SI Nand Kishore
B. Re: Samples of the prosecutrix collected from (1) Debris
collection (dust, grass present in hair, dust in clothes), (2)

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 Debris from in between fingers, (3) Debris from nails, (4) Nail
clippings, (5) Nail scrapings, (6) Breast swab, (7) Body fluid
collection (swab from Saliva), (8) Combing of public hair, (9)
Matted public hair, (10) Clipping of public hair, (11) Cervical
mucus swab, (12) Vaginal secretion, (13) Vaginal culture, (14)
Washing from vagina, (15) Rectal swab, (16) Oral swab, (17)
Urine and oxalate blood, (18) Blood samples, (19) Outer
clothing/sweater, (20) Inner clothes of prosecutrix, (21) Bed
sheet of prosecutrix, through the testimonies of:
(i) PW-49 Dr.Rashmi Ahuja
(ii) PW-59 Inspector Raj Kumar
(iii) PW-74 S.I. Subhash Chand
(iv) PW-77 HC Rajender Prasad Meena [the MHC(M)]
(v) PW-18 S.I Vishal Choudhary
(vi) PW-11 Dr.Pintu Kumar Singh
(vii) PW-55 SI Gajender Singh
(viii) PW-29 Dr.Ranju Gandhi
C. Re: Samples of accused Ram Singh including a penile swab,
blood in gauze, underwear, saliva in T-Shirt and slippers,
through the testimonies of:
(i) PW-2 Dr.Akhilesh Raj
(ii) PW-39 Ct.Murari
(iii) PW-77 HC Rajender Prasad Meena [the MHC(M)]
(iv) PW-74 SI Subhash
D. Re: Samples of accused Pawan Kumar including blood
sample in gauze piece, saliva on whatmans filter paper, nail

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 clippings, pubic hair, swab glans of penis and urethra and
single stray hair found on the body of the accused and
biological samples from sweater, pants, underwear and shoes of
accused, through the testimonies of:
(i) PW-10 Dr.Mohit Gupta
(ii) PW-48 HC Giri Raj
(iii) PW-77 HC Rajender Prasad Meena [the
MHC(M)]
(iv) PW-74 SI Subhash Chand
E. Re: Samples of accused Vinay Sharma including blood
sample in gauze piece, nail clippings of both hands, urethral
swab, glans swab, pubic hair, saliva, single long stray hair,
mons pupis, undergarments, one blue coloured jeans, one black
jacket, one black full-sleeved T-Shirt and a pair of blue
coloured plastic slippers, through the testimonies of:
(i) PW-36 Ct.Sandeep
(ii) PW-77 HC Rajender Prasad Meena [the
MHC(M)]
(iii) PW 74 SI Subhash Chand
F: Re: Samples of accused Mukesh including gauze cloth piece,
nail clippings of both hands, urethral swab, glans swab, pubic
hair, saliva on whatman paper, stray hair found on body, one
dirty blue and green coloured striped underwear, one grey
coloured full pants, one green coloured half-sleeved T-shirt and
one blue coloured full sleeved jacket, through the testimonies
of:

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 (i) PW-3 Dr.Chetan Kumar
(ii) PW-37 Ct.Sanjeev
(iii) PW-77 HC Rajender Prasad Meena [the MHC(M)]
(iv) PW-74 SI Subhash Chand
G: Re: Samples of accused Akshay including gauze cloth piece,
penile swab, nail scrapings and clippings, red coloured banian,
dark brown underwear, scalp hair, pubic hair and one dirty blue
coloured jeans, through the testimonies of:
(i) PW-7 Dr.Shashank Poonia
(ii) PW-40 ASI Surinder Kumar
(iii) PW-77 HC Rajender Prasad Meena [the MHC(M)]
(iv) PW-53 SI Upender Singh
(v) SI Subhash Chand
H: Re: Blood samples from the weapons of offence viz. iron rods
Ex.PW.49/1 and Ex.PW.49/2, through the testimonies of:
(i) PW-77 HC Rajender Prasad Meena [the MHC(M)]
(ii) PW-80 SI Pratibha Sharma (I.O)
(iii) PW-74 SI Subhash Chand
I: Re: DNA samples from ash and partly burnt clothes of the
victims, through the testimonies of:
(i) PW-77 HC Rajender Prasad Meena [the MHC(M)]
(ii) PW-80 SI Pratibha Sharma (I.O)
(iii) PW-74 SI Subhash Chand
J: Re: Samples lifted from the bus Ex.P1, through the
testimonies of:
(i) PW-45 Dr.B.K.Mohapatra

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 (ii) PW-74 SI Subhash Chand
(iii) PW-32 SI Vishal Choudhary
(iv) PW-33 SI Vikas Rana
(v) PW-77 HC Rajender Prasad Meena [the MHC(M)]
(vi) PW-60 HC Mahabir
K: A number of samples were also collected by the
investigating agency from the spot where the prosecutrix and
the complainant were thrown off the bus near Mahipalpur
flyover for DNA examination viz., blood stained leaves, blood
stained grass blades, leaves without blood, blades of grass
without blood, blood stained dust along with leaves and grass.
In the context of the aforesaid samples, the chain of custody is
established by the prosecution of examining the following
prosecution witnesses:-
(i) PW-41 Inspector Naresh Kumar
(ii) PW-43 Ct.Jai Veer
(iii) PW-74 SI Subhash Chand
(iv) PW-77 HC Rajender Prasad Meena [the MHC(M)]

348. In the light of the above evidence on record, the prosecution

claims that there is no possibility of any contamination of the
biological samples obtained from the complainant, the biological
samples obtained from the prosecutrix and the biological samples of
the accused persons, i.e., accused Ram Singh (since deceased) and the
Appellants Pawan Kumar, Vinay Sharma, Mukesh and Akshay
Kumar as well as the biological samples lifted from the weapons of

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offence, the partly burnt clothes and ashes, the bus Ex.P-1 and the
dumping spot. No reason has been pointed out by the defence at
the time of hearing suggestive of the fact that the samples were
tampered with at any point of time. The continuous chain of
custody of the biological samples recovered from the complainant,
the prosecutrix and all the aforesaid accused persons at the time of
preparation of their respective MLCs and from the clothes recovered
which they were wearing at the time of the incident thus stand proved.
SENTENCE
349. The Appellants were given full opportunity to defend
themselves on the question of quantum of sentence before the
learned trial court. We have also heard both the sides on the point
of sentence at length. Learned Special Public Prosecutor contends
that looking at the crime committed by the convicts, there is no
valid ground for interference in the sentence. However, it is the
vehement contention of learned counsel for the defence that the
facts and circumstances of this case are not sufficient to
categorize the present case as the rarest of rare cases justifying the
imposition of death penalty.
350. Mr. A.P. Singh, learned counsel for convicts Vinay Sharma
and Akshay Thakur referred to the judgments of the Honble
Supreme Court in Bachan Singh v. State of Punjab, (1980) 2
SCC 684 and Machhi Singh v. State of Punjab, (1983) 3 SCC
470 to submit that in the backdrop of the aforesaid judgments, the
mitigating circumstances relating to the convicts deserve to be
kept in mind by this Court, including:

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 (i) the young age of the convicts,
(ii) the socio-economic conditions of the convicts they being
poor and their impecunious circumstances being a
determinative factor,
(iii) their clean antecedents and the chance of their reformation,
(iv) the presumption of innocence being in their favour,
(v) life imprisonment being the rule and death being an
exception and there being no such reasons to award death
sentence, and
(vi) they being convicted only on the ground of conspiracy and
not their individual acts.
351. Mr. Singh submitted that this Court was required to draw a
balance sheet of aggravating and mitigating circumstances, and if
such balance sheet was drawn and the parameters laid down by the
Constitution Bench of the Supreme Court in the case of Bachan
Singh and the three-Judge Bench in Machhi Singh meticulously
applied, the only justifiable sentence would be life imprisonment
and not death sentence as imposed by the learned trial court. The
following observations of M.K. Gandhi, Father of the Nation
made over 40 years ago in the Harijan (March 19, 1937) were
relied on:
I do regard death sentence as contrary to ahinsa. Only he
takes life who gives it. All punishment is repugnant to
ahinsa. Under a State governed according to the principles
of ahinsa, therefore, a murderer would be sent to a
penitentiary and then given every chance of reforming
himself. All crime is a kind of disease and should be
treated as such.

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352. The learned Special Public Prosecutor, on the other hand,
highlighted the fact that the repeated incidents of gang rape in
Delhi and Mumbai had led to the widespread feeling that women
in the two metropolitans were unsafe. By giving the maximum
sentence the message to the society would be that deviant
behavior of an extreme kind will not be tolerated. By not handing
out the maximum sentence, the message would be loud and clear that
criminals can get away with incidents like this.
353. The learned Special Public Prosecutor emphasized that the
Honble Supreme Court has repeatedly held that where there is
grotesque, diabolical and barbaric behavior, death sentence must be
awarded. In this case, the prosecution has proved not just the
existence of extreme brutality, but grotesque, diabolical and barbaric
behavior on the part of the accused. The offence of gang rape in the
instant case has been compounded with murder and Courts have
repeatedly awarded the death sentence in cases of brutal rape and
murder. Also, where depravity and extreme brutality shock the
collective conscience of the society, death sentence has been held to
be warranted. Young age of the accused is not a determinative factor
against awarding of the death sentence nor can the socio-economic
status of the accused be considered a mitigating factor in sentencing
in a case of gang rape coupled with murder. Learned Special Public
Prosecutor further submitted that each case turns on its own facts and
no two cases can be alike, specially for considerations of sentencing.
In the present case, when an exercise is undertaken to balance the
aggravating circumstances relating to the crime and the mitigating

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circumstances in respect of the accused, it would be abundantly clear
that the scale decisively turns towards awarding of the death sentence.
This being so and it being settled law that as long as the death penalty
is on the statute book and held to be constitutional, the Courts are
duty bound to award it in befitting cases, this Court irrespective of its
predilictions has no alternative but to affirm the death sentence
awarded to the accused in the instant case.
354. Learned Special Public Prosecutor contended that the
prosecution had completely discharged the onus placed upon it of
proving that the accused demonstrated extreme depravity as they
lured the victims into the bus, brutally gang raped the girl, inflicted
inhuman torture and threw the defenceless victims out of the moving
bus in a naked condition on a cold winter night with the prosecutrix
bleeding profusely from the vagina. It was a pre-meditated,
unprovoked crime. There is no denying the fact that this hair raising
incident had shocked the collective conscience of the nation, which is
held to be one of the significant tests for determining if a case falls in
the rarest of rare category. In the light of the evidence against each
accused, the brutality of the crime which is evident from the
statements of the victims as well as the medical evidence of the
treating doctors, each of the accused must be awarded the death
sentence. If this is not a rarest of rare case, there is none which can
be given that epithet.
355. As regards the young age of the convicts, which the defence
states is a mitigating factor, learned Special Public Prosecutor
contended it has time and again been emphasized by the Supreme

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Court that the young age of the accused is not by itself a
determinative factor against the award of the death sentence. The
cumulative circumstances have to be taken together and a
comprehensive view taken after proper weightage being given to each
circumstance. In the following among other cases, the Supreme
Court in spite of the young age of the accused felt impelled to confirm
the death sentence:-
(i) Mohammed Ajmal Mohammad Amir Kasab @ Abu
Mujahid v. State of Maharashtra, (2012) 9 SCC 1.
(ii) Atbir v. State (NCT of Delhi) (2010) 9 SCC 1.
(iii) Vikram Singh v. State of Punjab (2010) 3 SCC 56.
(iv) Shivu v. High Court of Karnataka (2007) 4 SCC 713.
(v) Jai Kumar v. State of M.P. (1999) 5 SCC 1.
(vi) Dhananjoy Chatterjee v. State of West Bengal (1994) 2
SCC 220.
356. It is noteworthy that the cases of Shivu (supra) and Dhananjoy
Chatterjee (supra) were cases based on circumstantial evidence.
Shivus case was for the offence of gang rape coupled with murder
while Dhananjoy Chatterjee was a case of rape coupled with murder.
357. Regarding socio-economic status of the accused not being a
determinative factor, learned Special Public Prosecutor relied upon
the decision in the case of Shimbhu vs. State of Haryana (supra),
which was a case of rape simpliciter (not gang rape and not coupled
with murder), and in particular upon the following observations made
by the Supreme Court in the said case:- (SCALE, page 596)

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 Thus, the law on the issue can be summarized to the effect
that punishment should always be proportionate/commensurate
to the gravity of offence. Religion, race, caste, economic or
social status of the accused or victim or the long pendency
of the criminal trial or offer of the rapist to marry the victim or the
victim is married and settled in life cannot be construed as
special factors for reducing the sentence prescribed by the
statute.

358. Reliance was also placed by learned Special Public Prosecutor

upon a recent judgment rendered in State of Rajasthan vs. Vinod
Kumar, (2012) 6 SCC 770 wherein the Supreme Court reiterated the
law as under:- (SCC, page 780, para 23)
23. Thus, the law on the issue can be summarised to the effect
that punishment should always be proportionate/commensurate
to the gravity of offence. Religion, race, caste, economic or
social status of the accused or victim are not the relevant
factors for determining the quantum of punishment. The
court has to decide the punishment after considering all
aggravating and mitigating factors and the circumstances in
which the crime has been committed. Conduct and state of
mind of the accused and age of the sexually assaulted victim
and the gravity of the criminal act are the factors of
paramount importance. The court must exercise its discretion
in imposing the punishment objectively considering the facts
and circumstances of the case.
359. Reference was next made to the case of State of Karnataka v.
Krishnappa (supra). In the said case, a three-Judge Bench of the
Supreme Court on the issue of sentencing held as under:- (SCC, page
83, para 18)
18. The High Court, however, differed with the reasoning of the
trial court in the matter of sentence and, as already noticed, the
reasons given by the High Court are wholly unsatisfactory and
even irrelevant. We are at a loss to understand how the High
Court considered that the discretion had not been properly
exercised by the trial court. There is no warrant for such an
observation. The High Court justified the reduction of
sentence on the ground that the accused-respondent was
an unsophisticated and illiterate citizen belonging to a
weaker section of the society; that he was a chronic
addict to drinking and had committed rape on the girl
while in a state of intoxication and that his family

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 comprising of an old mother, wife and children were
dependent upon him. These factors, in our opinion, did not
justify recourse to the proviso to Section 376(2) IPC to impose a
sentence less than the prescribed minimum. These reasons
are neither special nor adequate. The measure of
punishment in a case of rape cannot depend upon the
social status of the victim or the accused. It must depend
upon the conduct of the accused, the state and age of the
sexually assaulted female and the gravity of the criminal act.
Crimes of violence upon women need to be severely dealt with.
The socio-economic status, religion, race, caste or creed of
the accused or the victim are irrelevant considerations in
sentencing policy. Protection of society and deterring the
criminal is the avowed object of law and that is required to
be achieved by imposing an appropriate sentence. The
sentencing courts are expected to consider all relevant facts
and circumstances bearing on the question of sentence and
proceed to impose a sentence commensurate with the gravity of
the offence. Courts must hear the loud cry for justice by the
society in cases of the heinous crime of rape on innocent
helpless girls of tender years, as in this case, and respond by
imposition of proper sentence. Public abhorrence of the crime
needs reflection through imposition of appropriate sentence by
the court. There are no extenuating or mitigating circumstances
available on the record which may justify imposition of any
sentence less than the prescribed minimum on the respondent.
To show mercy in the case of such a heinous crime would be a
travesty of justice and the plea for leniency is wholly misplaced.
The High Court, in the facts and circumstances of the case, was
not justified in interfering with the discretion exercised by the
trial court and our answer to the question posed in the earlier
part of the judgment is an emphatic No.
360. As regards the defence plea of clean antecedents of the
convicts, the chance of their reformation and the presumption of
innocence being in their favour, it was pointed out by learned
Special Public Prosecutor that this aspect of the matter has been
adequately dealt with by the learned trial court in his order on
sentence, the relevant portion of which reads as follows:
The submission qua clean antecedents or a chance of
reformation, I may refer to the following judgments where the
accused were first offenders but were awarded death for the
acts they had committed viz., (a) Mohd Anis Kasab (Supra) and
(b) Dhananjay Chatterjee (Supra). Rather, I may refer to the

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 deposition of PW82 Shri Ram Adhar wherein he had deposed
about dacoity committed with him by the convict person along
with their associates in the same bus on the time just prior to
the incident belies the claim of the convicts that they had clean
antecedents. Qua the plea of reformation I may add that in
Sunders case (supra) the Honble Supreme Court observed
that the method adopted by the accused may disclose the traits
of outrageous criminality in the behaviour of accused.

Further, the plea of presumption of the innocence in

favour of the convicts is now not available to them since they
stand convicted. I may also put the record straight that convict
person are not convicted only on account of conspiracy but also
for their overt acts. Lastly, the plea of convict Mukesh that he
had helped the system by admitting that he was present inside
the bus, is probably to seek misplaced mercy as he took this
contradictory stand in his statement under section 313 Cr.P.C to
save himself after he found the chain of circumstances being
proved against him too.

361. Learned Special Public Prosecutor also laboriously took us

through the entire gamut of case law to bring home his submissions.
We propose to examine the parameters laid down by the Supreme
Court in the precedents cited by him and others which have come to
our notice and we now embark upon this exercise, bearing in mind the
fact that there is nothing more irrevocable than death itself and that
human judgment is not infallible, but also that proof beyond
reasonable doubt is a guideline, not a fetish, and meticulous hyper-
sensitivity to the dogma that to eliminate a rare innocent a hundred
guilty men must be allowed to escape may prove to be destructive of
the social fabric and render justice completely sterile.
362. Learned Special Public Prosecutor contended at the outset
that Courts have repeatedly awarded stringent punishment in cases of
gang rape. In a recent judgment in Shimbhu vs. State of Haryana,
2013 (10) SCALE 595, the Honble Supreme Court has held that in

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incidents of gang rape no leniency should be shown by the Courts. In
this case, when the prosecutrix in the early hours of the morning came
out of her house to attend the call of nature, she was accosted by the
two accused, threatened with dire consequences by pointing of a knife
at her and taken inside the shop of one of the accused, where she was
repeatedly raped by the accused, turn by turn, on that day and the
following day by confining her in the said shop. Subsequently,
however, it transpired that a compromise was arrived at between the
parties and the victim was happily married and blessed with children.
The accused relying upon these circumstances and the fact that the
occurrence of the incident dated back to the year 1995 sought to press
into service the proviso to Section 376(2)(g) of the Penal Code that
the Court may for adequate and special reasons impose sentence of
imprisonment for a term of less than 10 years. A three-Judge Bench
of the Honble Supreme Court, after noting that the legislature
through the Criminal Law (Amendment) Act, 2013, had not only
deleted this proviso in the wake of increasing crimes against women,
but also enhanced the minimum sentence to twenty years, which may
extend to life which shall mean imprisonment for the remainder of
that persons natural life and with fine, observed: (SCALE, page 603)
24. This is yet another opportunity to inform the subordinate
Courts and the High Courts that despite stringent provisions for
rape under Section 376 IPC, many Courts in the past have
taken a softer view while awarding sentence for such a heinous
crime. This Court has in the past noticed that few subordinate
and High Courts have reduced the sentence of the accused to
the period already undergone to suffice as the punishment, by
taking aid of the proviso to Section 376(2) Indian Penal Code.
The above trend exhibits stark insensitivity to the need for
proportionate punishments to be imposed in such cases.

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363. It may be noted that in the aforesaid case, the Supreme
Court affirmed its earlier decisions rendered in State of M.P. vs.
Bala @ Balaram, (2005) 8 SCC 1 and State of Karnataka vs.
Krishnappa, (2000) 4 SCC 75, wherein it was held that to show
mercy in the case of such a heinous crime as gang rape, a crime
against society, a crime against human dignity, one that reduces a
man to an animal would be a travesty of justice and an affront to
society notwithstanding the long pendency of the criminal trial or
offer of the rapist to marry the victim or the socio-economic status,
religion, race, caste or creed of the accused, which are irrelevant
circumstances.
364. Learned Special Public Prosecutor contended that the
emphasis placed by the Supreme Court in the case of Shimbhu
(supra) that in incidents of gang rape no leniency should be shown by
the Courts in the award of sentence assumes special significance in
the present case. In that case, the degree of deviance was lesser,
inasmuch as it was not gang rape coupled with murder. In the present
case, there is much higher degree of deviance coupled with brutality
which is hithertobefore unknown in the history of criminal law. The
entire intestine of the prosecutrix was perforated, splayed and cut
open due to repeated insertions of rods. The accused, in the most
barbaric manner, pulled out her internal organs with their bare hands
as well as the rods and caused irreparable injuries resulting in an
agonizing and traumatic death for the victim. If this is not the rares of
rare case, there is none. The Courts have repeatedly awarded the
death sentence in cases of brutal rape and murder.

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365. Reliance was placed by learned Special Public Prosecutor, in
this context, upon the judgment in the case of B.A. Umesh vs.
Registrar General, High Court of Karnataka, (2011) 3 SCC 85
where the victim, mother of a 7 year old child, was subjected to
violent sexual assault when she was alone in the house and then
smothered to death. The Honble Supreme Court held as under:-
(SCC, page 108, para 83)
On the question of sentence we are satisfied that the extreme
depravity with which the offences were committed and the
merciless manner in which death was inflicted on the victim,
brings it within the category of the rarest of rare cases which
merits the death penalty, as awarded by the trial court and
confirmed by the High Court. None of the mitigating factors as
were indicated by this Court in Bachan Singh case or in Machhi
Singh case are present in the facts of the instant case.
.

366. We note that in the above mentioned case, the rape of the
victim was coupled with robbery in the house. The victim was found
lying naked on the floor with her genitals exposed and blood oozing
out of her vagina. The post mortem examination disclosed lacerations
on the vagina and abrasions all over the body. We further note that
the conviction in Umesh (supra) was based entirely on circumstantial
evidence. The case on hand, in addition to being a case of gang
rape, rests on much stronger direct evidence and involves
extreme brutality which has seen no comparison.
367. Reliance was next placed by learned Special Public Prosecutor
upon the judgment in Ankush Maruti Shinde vs. State of
Maharashtra, (2009) 6 SCC 667. In this case, a group of six persons
barged into a house, demanding money and valuables. Five membes

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of a family were brutally murdered who were not even known to the
accused and there was no animosity towards them and the accused
raped two, one being a young girl aged 15 years who was dragged to
the open field, gang-raped and done to death. The High Court
confirmed the death sentence awarded to three accused convicted for
offences under Sections 376(2)(g) and 302 IPC, while three others
were convicted under Section 302 IPC but acquitted under Section
376(2)(g) IPC and were awarded life sentences. The Supreme Court
allowing the State appeals and awarding death sentence to all the six
accused, concluded as under:- (SCC, page 680, paras 31 to 35)
31. The case at hand falls in the rarest of rare category. The
depraved acts of the accused call for only one sentence that is
death sentence.

32. The murders were not only cruel, brutal but were diabolic.
The High Court has held that those who were guilty of rape and
murder deserve death sentence, while those who were
convicted for murder only were to be awarded life sentence.
The High Court noted that the whole incident is extremely
revolting, it shocks the collective conscience of the community
and the aggravating circumstances have outweighed the
mitigating circumstances in the case of accused persons 1, 2
and 4; but held that in the case of others it was to be altered to
life sentence.

33. The High Court itself noticed that five members of a family
were brutally murdered, they were not known to the accused
and there was no animosity towards them. Four of the
witnesses were of tender age, they were defenceless and the
attack was without any provocation. Some of them were so
young that they could not resist any attack by the accused. A
minor girl of about fifteen years was dragged to the open field,
gang-raped and done to death.

34. There can be no doubt that the case at hand falls under the
rarest of rare category. There was no reason to adopt a
different yardstick for A-2, A-3 and A-5. In fact, A-3 was the
main person. He assaulted PW 1 and took the money from the
deceased.

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 35. Above being the position, the appeals filed by the accused
persons deserve dismissal, which we direct and the State's
appeals deserve to be allowed. A-2, A-3 and A-5 are also
awarded death sentence. In essence all the six accused
persons deserve death sentence.

368. In the Ankush Maruti Shinde case (supra), the Supreme Court
relied upon its earlier judgments and in particular upon the following
extract from the judgment rendered in State of Madhya Pradesh vs.
Munna Choubey, (2005) 2 SCC 710:- (SCC, page 714)
9. The law regulates social interests, arbitrates conflicting
claims and demands. Security of persons and property of
the people is an essential function of the State. It could be
achieved through instrumentality of criminal law.
Undoubtedly, there is a cross-cultural conflict where living
law must find answer to the new challenges and the courts
are required to mould the sentencing system to meet the
challenges. The contagion of lawlessness would
undermine social order and lay it in ruins. Protection of
society and stamping out criminal proclivity must be the
object of law which must be achieved by imposing
appropriate sentence. Therefore, law as a cornerstone of
the edifice of order should meet the challenges
confronting the society. Friedman in his Law in Changing
Society stated that: State of criminal law continues to be
as it should be a decisive reflection of social
consciousness of society. Therefore, in operating the
sentencing system, law should adopt the corrective
machinery or deterrence based on factual matrix. By deft
modulation sentencing process be stern where it should be, and
tempered with mercy where it warrants to be. The facts and
given circumstances in each case, the nature of the crime, the
manner in which it was planned and committed, the motive for
commission of the crime, the conduct of the accused, the nature
of weapons used and all other attending circumstances are
relevant facts which would enter into the area of consideration.
For instance a murder committed due to deep-seated mutual
and personal rivalry may not call for penalty of death. But an
organised crime or mass murders of innocent people would call
for imposition of death sentence as deterrence. In Mahesh v.
State of M.P. this Court while refusing to reduce the death
sentence observed thus: (SCC p. 82, para 6)

It will be a mockery of justice to permit [the

accused] to escape the extreme penalty of

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 law when faced with such evidence and such
cruel acts. To give the lesser punishment for
the accused would be to render the justicing
system of the country suspect. The common
man will lose faith in courts. In such cases,
he understands and appreciates the language
of deterrence more than the reformative
jargon.

10. Therefore, undue sympathy to impose inadequate

sentence would do more harm to the justice system to
undermine the public confidence in the efficacy of law, and
society could not long endure under such serious threats.
It is, therefore, the duty of every court to award proper
sentence having regard to the nature of the offence and the
manner in which it was executed or committed, etc. This
position was illuminatingly stated by this Court in Sevaka
Perumal v. State of T.N.

11. The criminal law adheres in general to the principle of

proportionality in prescribing liability according to the culpability
of each kind of criminal conduct. It ordinarily allows some
significant discretion to the Judge in arriving at a sentence in
each case, presumably to permit sentences that reflect more
subtle considerations of culpability that are raised by the special
facts of each case. Judges in essence affirm that punishment
ought always to fit the crime; yet in practice sentences are
determined largely by other considerations. Sometimes it is the
correctional needs of the perpetrator that are offered to justify a
sentence. Sometimes the desirability of keeping him out of
circulation, and sometimes even the tragic results of his crime.
Inevitably these considerations cause a departure from just
deserts as the basis of punishment and create cases of
apparent injustice that are serious and widespread.

12. Proportion between crime and punishment is a goal

respected in principle, and in spite of errant notions, it remains a
strong influence in the determination of sentences. The practice
of punishing all serious crimes with equal severity is now
unknown in civilised societies, but such a radical departure from
the principle of proportionality has disappeared from the law
only in recent times. Even now for a single grave infraction
drastic sentences are imposed. Anything less than a penalty of
greatest severity for any serious crime is thought then to be a
measure of toleration that is unwarranted and unwise. But in
fact, quite apart from those considerations that make
punishment unjustifiable when it is out of proportion to the
crime, uniformly disproportionate punishment has some very
undesirable practical consequences.

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 13. After giving due consideration to the facts and
circumstances of each case, for deciding just and appropriate
sentence to be awarded for an offence, the aggravating and
mitigating factors and circumstances in which a crime has been
committed are to be delicately balanced on the basis of really
relevant circumstances in a dispassionate manner by the court.
Such act of balancing is indeed a difficult task. It has been very
aptly indicated in McGautha v. State of California that no
formula of a foolproof nature is possible that would provide a
reasonable criterion in determining a just and appropriate
punishment in the infinite variety of circumstances that may
affect the gravity of the crime. In the absence of any foolproof
formula which may provide any basis for reasonable criteria to
correctly assess various circumstances germane to the
consideration of gravity of crime, the discretionary judgment in
the facts of each case, is the only way in which such judgment
may be equitably distinguished.

14. In Jashubha Bharatsinh Gohil v. State of Gujarat [(1994) 4

SCC 353] it has been held by this Court that in the matter of
death sentence, the courts are required to answer new
challenges and mould the sentencing system to meet these
challenges. The object should be to protect the society and
to deter the criminal in achieving the avowed object of law
by imposing appropriate sentence. It is expected that the
courts would operate the sentencing system so as to
impose such sentence which reflects the conscience of the
society and the sentencing process has to be stern where
it should be. Even though the principles were indicated in the
background of death sentence and life sentence, the logic
applies to all cases where appropriate sentence is the issue.

15. Imposition of sentence without considering its effect on the

social order in many cases may be in reality a futile exercise.
The social impact of the crime e.g. where it relates to offences
against women, dacoity, kidnapping, misappropriation of public
money, treason and other offences involving moral turpitude or
moral delinquency which have great impact on social order and
public interest, cannot be lost sight of and per se require
exemplary treatment. Any liberal attitude by imposing meagre
sentences or taking too sympathetic view merely on account of
lapse of time in respect of such offences will be resultwise
counterproductive in the long run and against societal interest
which needs to be cared for and strengthened by string of
deterrence inbuilt in the sentencing system.

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369. Further discussing the appropriateness of death sentencing, the
Supreme Court relied upon and quoted the following extract from its
judgment in Union of India vs. Devendra Nath Rai, (2006) 2 SCC
243:- (SCC, pp.247-49)
23. Lord Justice Denning, Master of the Rolls of the Court of
Appeal in England said to the Royal Commission on Capital
Punishment in 1950:

Punishment is the way in which society expresses

its denunciation of wrongdoing; and, in order to
maintain respect for the law, it is essential that the
punishment inflicted for grave crimes should
adequately reflect the revulsion felt by the great
majority of citizens for them. It is a mistake to
consider the objects of punishments as being a
deterrent or reformative or preventive and nothing
else. The truth is that some crimes are so
outrageous that society insists on adequate
punishment, because the wrongdoer deserves
it, irrespective of whether it is a deterrent or
not.

In J.J. Rousseau's The Social Contract written in 1762, he says

the following:

Again, every rogue who criminously attacks social

rights becomes, by his wrong, a rebel and a traitor
to his fatherland. By contravening its laws, he
ceases to be one of its citizens: he even wages war
against it. In such circumstances, the State and he
cannot both be saved: one or the other must perish.
In killing the criminal, we destroy not so much a
citizen as an enemy. The trial and judgments are
proofs that he has broken the social contract,
and so is no longer a member of the State.

370. The learned Special Public Prosecutor next relied upon the case
of Dhananjoy Chatterjee vs. State of West Bengal, (1994) 2 SCC
220 which is yet another case in which the Court observed that the
punishment awarded by the Courts must reflect the public
abhorrence of the crime and must be proportionate to the

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atrocity committed on the victim. This case pertains to the rape and
murder of a helpless and defenceless school-going girl of 18 years by
a security guard of the building in which the girl was residing.
Affirming the fact that the case fell in the category of rarest of rare
category, which called for capital punishment, the Court made the
following observations:- (SCC, page 239, paras 15 and 16)
In our opinion, the measure of punishment in a given case
must depend upon the atrocity of the crime; the conduct of
the criminal and the defenceless and unprotected state of
the victim. Imposition of appropriate punishment is the
manner in which the courts respond to the society's cry for
justice against the criminals. Justice demands that courts
should impose punishment befitting the crime so that the
courts reflect public abhorrence of the crime. The courts
must not only keep in view the rights of the criminal but
also the rights of the victim of crime and the society at
large while considering imposition of appropriate
punishment.

The sordid episode of the security guard, whose sacred duty

was to ensure the protection and welfare of the inhabitants of
the flats in the apartment, should have subjected the deceased,
a resident of one of the flats, to gratify his lust and murder her in
retaliation for his transfer on her complaint, makes the crime
even more heinous. Keeping in view the medical evidence and
the state in which the body of the deceased was found, it is
obvious that a most heinous type of barbaric rape and
murder was committed on a helpless and defenceless
school-going girl of 18 years. If the security guards behave in
this manner who will guard the guards? The faith of the
society by such a barbaric act of the guard, gets totally
shaken and its cry for justice becomes loud and clear. The
offence was not only inhuman and barbaric but it was a
totally ruthless crime of rape followed by cold blooded
murder and an affront to the human dignity of the society.
The savage nature of the crime has shocked our judicial
conscience. There are no extenuating or mitigating
circumstances whatsoever in the case. We agree that a real
and abiding concern for the dignity of human life is
required to be kept in mind by the courts while considering
the confirmation of the sentence of death but a cold
blooded preplanned brutal murder, without any
provocation, after committing rape on an innocent and
defenceless young girl of 18 years, by the security guard

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 certainly makes this case a rarest of the rare cases which
calls for no punishment other than the capital punishment
and we accordingly confirm the sentence of death imposed
upon the appellant for the offence under Section 302 IPC.
The order of sentence imposed on the appellant by the courts
below for offences under Sections 376 and 380 IPC are also
confirmed along with the directions relating thereto as in the
event of the execution of the appellant, those sentences would
only remain of academic interest. This appeal fails and is
hereby dismissed.

371. Reference was next made by the learned Prosecutor to the

case of Shivu vs. The Registrar General, High Court of Karnataka,
(2007) 4 SCC 713, wherein the Honble Supreme Court once again
relying on the principle of proportionality in sentencing, sentenced
two young accused to death for the offence of rape coupled with
murder. Noting that the accused, aged about 20 and 22 years
respectively, who were sexually obsessed youngsters and who had
prior to the alleged incident attempted to rape two girls of the same
village and thus emboldened had committed rape on the deceased, a
young girl of hardly 18 years, and to avoid detection committed the
heinous and brutal act of her murder, the Supreme Court observed
that anything less than a penalty of greatest severity for any
serious crime must be thought to be a measure of toleration that is
unwarranted and unwise. It was further observed that quite apart
from those considerations that make punishment unjustifiable when it
is out of proportion to the crime, uniformly disproportionate
punishment has some very undesirable practical consequences.
Proportion between crime and punishment was thus a goal to be
respected in principle in spite of errant notions. It may be noted
that this was a case which rested on circumstantial evidence alone.

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372. The learned Special Public Prosecutor next referred to a three-
Judge Bench decision of the Supreme Court in Molai vs. State of
M.P., (1999) 9 SCC 581 in which the Supreme Court awarded death
sentence to both the accused persons upon conviction for offences
under Sections 376(2)(g), 302, 34 and 201 IPC for rape of a sixteen
year old girl. It is noteworthy that the said case was also based
entirely on circumstantial evidence. The conclusions arrived at in the
said case read as under:- (SCC, page 593, para 36)
36. We have very carefully considered the contentions raised
on behalf of the parties. We have also gone through various
decisions of this Court relied upon by the parties in the courts
below as well as before us and in our opinion the present
case squarely falls in the category of one of the rarest of
rare cases, and if this be so, the courts below have
committed no error in awarding capital punishment to each
of the accused. It cannot be overlooked that Naveen, a 16-
year-old girl, was preparing for her Class 10th examination at
her house and suddenly both the accused took advantage of
she being alone in the house and committed a most shameful
act of rape. The accused did not stop there but they
strangulated her by using her undergarment and thereafter took
her to the septic tank along with the cycle and caused injuries
with a sharp-edged weapon. The accused did not even stop
there but they exhibited the criminality in their conduct by
throwing the dead body into the septic tank totally disregarding
the respect for a human dead body. Learned counsel for the
accused (appellants) could not point any mitigating
circumstance from the record of the case to justify the reduction
of sentence of either of the accused. In a case of this nature, in
our considered view, the capital punishment to both the
accused is the only proper punishment and we see no reason
to take a different view than the one taken by the courts below.

373. Significantly in the aforesaid case, pre-meditation was held by

the Supreme Court not to be a pre-requisite for the award of death
penalty. The present case stands on a better footing since in the
present case the victims were lured into the bus for the purpose of
robbing, raping and eliminating. Pre-meditation was thus writ large

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and the crime was the result of a conspiracy hatched by the accused
well in advance of the commission of the crime. The depravity and
extreme brutality with which the crime was committed reflects the
mind set of the accused, a mind set which was incapable of
reformation.
374. The learned Special Public Prosecutor vehemently contended
that the Supreme Court has in a string of decisions emphasized that
depravity of the mind of the convict/s and the brutality demonstrated
in committing the offence constitute special reasons required for the
award of death sentence. A look now at the law cited by him which
substantiates this contention.
375. Reference at the outset was made to the Constitution Bench
decision in Bachan Singh vs. State of Punjab (supra) wherein it is
held that when culpability assumes the proportion of extreme
depravity that constitutes legitimate special reasons for award of
death sentence:- (SCC, page 748, paras 201 and 202)
201. .. As we read Sections 354(3) and 235(2)
and other related provisions of the Code of 1973, it is quite clear
to us that for making the choice of punishment or for
ascertaining the existence or absence of special reasons in
that context, the court must pay due regard both to the crime
and the criminal. What is the relative weight to be given to the
aggravating and mitigating factors, depends on the facts and
circumstances of the particular case. More often than not, these
two aspects are so intertwined that it is difficult to give a
separate treatment to each of them. This is so because style is
the man. In many cases, the extremely cruel or beastly
manner of the commission of murder is itself a
demonstrated index of the depraved character of the
perpetrator. That is why, it is not desirable to consider the
circumstances of the crime and the circumstances of the
criminal in two separate watertight compartments. In a
sense, to kill is to be cruel and therefore all murders are cruel.
But such cruelty may vary in its degree of culpability. And

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 it is only when the culpability assumes the proportion of
extreme depravity that special reasons can legitimately
be said to exist.

202. ... Aggravating circumstances: A court

may, however, in the following cases impose the penalty of
death in its discretion:
(a) if the murder has been committed after previous planning
and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c)
(d)

Suffice it to note that both (a) and (b) exist in the present
case.
376. Reference was next made to a three-Judge Bench decision in
Machhi Singh vs. State of Punjab (supra) wherein the Honble
Supreme Court recorded its reflections on the question of death
penalty and held that inhuman acts of torture or cruelty to bring
about the death of the victim arouse intense and extreme
indignation of the society and warrant death sentence. It further
held that when the collective conscience of society is shocked, the
holders of judicial power are expected to award the death
sentence. The rationale was explained in the following terms:- (SCC,
page 487, paras 32 and 33)
32. The reasons why the community as a whole does not
endorse the humanistic approach reflected in death sentence-
in-no-case doctrine are not far to seek. In the first place, the
very humanistic edifice is constructed on the foundation of
reverence for life principle. When a member of the
community violates this very principle by killing another
member, the society may not feel itself bound by the
shackles of this doctrine. Secondly, it has to be realized
that every member of the community is able to live with
safety without his or her own life being endangered
because of the protective arm of the community and on
account of the rule of law enforced by it. The very existence
of the rule of law and the fear of being brought to book operates

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 as a deterrent for those who have no scruples in killing others if
it suits their ends. Every member of the community owes a debt
to the community for this protection. When ingratitude is shown
instead of gratitude by killing a member of the community
which protects the murderer himself from being killed, or when
the community feels that for the sake of self-preservation
the killer has to be killed, the community may well withdraw
the protection by sanctioning the death penalty. But the
community will not do so in every case. It may do so in rarest
of rare cases when its collective conscience is so
shocked that it will expect the holders of the judicial power
centre to inflict death penalty irrespective of their personal
opinion as regards desirability or otherwise of retaining
death penalty. The community may entertain such a
sentiment when the crime is viewed from the platform of
the motive for, or the manner of commission of the crime,
or the anti-social or abhorrent nature of the crime, such as
for instance:

I. Manner of commission of murder

33. When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as
to arouse intense and extreme indignation of the
community. For instance,

(i) when the house of the victim is set aflame with the end
in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of

torture or cruelty in order to bring about his or her
death.

(iii)

377. In Machhi Singh (supra), the following five tests were laid
down as parameters for the assistance of the Courts in determining
whether a case falls in the category of rarest of rare:- (SCC, page 488)
I. Manner of commission of murder.
II. Motive for commission of murder.
III. Anti-social or socially abhorrent nature of the crime.
IV. Magnitude of crime.
V. Personality of victim of murder.

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378. Suffice it to note that all the five indicators laid down in
Machhi Singh (supra), which are relied upon by the prosecution, are
against the accused in the instant case and the each of the five
indicates towards imposition of the death penalty. The manner of
commission of the offences was extremely brutal; the motive was
exceptionally depraved being a combination of sexual obsession and
avarice for material objects; the nature of the crime undoubtedly
shocked the conscience of the society and the nation; the magnitude
of the crime was such that the incident created widespread concern
with regard to the safety and security of women all over the country
and instilled fear in the mind of the common man; and the victim was
a helpless young girl, who was in what may be described a hapless
situation, not in a position to call for help and not in a position to run,
being confined to a moving bus with her tormentors.
379. We note that in Devender Pal Singh v. State (NCT of Delhi)
(2002) 5 SCC 234, the Supreme Court once again highlighted that the
principle culled out from Bachan Singh (supra) and Machhi Singh
(supra) is that when the collective conscience of the community is
shocked, the Courts must award the death sentence. The dastardly
acts of the accused in the said case were opined by the Court to be
diabolic in conception and cruel in execution. The relevant extract of
the judgment is as under:- (SCC, page 271, para 58)
58. From Bachan Singh v. State of Punjab and Machhi Singh v.
State of Punjab the principle culled out is that when the
collective conscience of the community is so shocked, that
it will expect the holders of the judicial power centre to
inflict death penalty irrespective of their personal opinion
as regards desirability or otherwise of retaining death
penalty, the same can be awarded.

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380. A similar view was taken in the case of Mahesh vs. State of
M.P. (supra), where the conviction was under Section 302 IPC, and
where the ghastly murders were considered shocking to the judicial
conscience. Affirming the death sentence, the Supreme Court held as
under:- (SCC, page 82, paras 5 and 6)
5. It is against this background that the request of the
appellants' counsel for interference with the sentence has to be
considered. The High Court observes that the act of the
appellant was extremely brutal, revolting and gruesome
which shocks the judicial conscience. And again as in
such shocking nature of crime as the one before us which
is so cruel, barbaric and revolting, it is necessary to
impose such maximum punishment under the law as a
measure of social necessity which work as a deterrent to
other potential offenders.

6. We share the concern of the High Court. We also feel that it

will be a mockery of justice to permit these appellants to
escape the extreme penalty of law when faced with such
evidence and such cruel acts. To give the lesser
punishment for the appellants would be to render the
justicing system of this country suspect. The common man
will lose faith in courts. In such cases, he understands and
appreciates the language of deterrence more than the
reformative jargon. When we say this, we do not ignore the
need for a reformative approach in the sentencing process. But
here, we have no alternative but to confirm the death sentence.
Accordingly, we dismiss the appeal.

381. In Ram Singh vs. Sonia & Ors., (2007) 3 SCC 1, the Supreme
Court once again held that it would be a failure of justice not to
award the death sentence in a case where the crime was executed
in the most grotesque and revolting manner. At paragraph 66, the
Court held as under:- (SCC, page 32, para 66)
66. The instant case is one wherein accused Sonia, along with
accused Sanjiv (her husband) has not only put an end to the
lives of her stepbrother and his whole family, which included

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 three tiny tots of 45 days, 2 years and 4 years, but also her
own father, mother and sister in a very diabolic manner so as to
deprive her father from giving the property to her stepbrother
and his family. The fact that murders in question were
committed in such a diabolic manner while the victims were
sleeping, without any provocation whatsoever from the victims'
side indicates the cold-blooded and premeditated approach of
the accused to cause death of the victims. The brutality of the
act is amplified by the grotesque and revolting manner in
which the helpless victims have been murdered which is
indicative of the fact that the act was diabolic of the most
superlative degree in conception and cruel in execution
and that both the accused persons are not possessed of
the basic humanness and completely lack the psyche or
mindset which can be amenable for any reformation. If this
act is not revolting or dastardly, it is beyond
comprehension as to what other act can be so. In view of
these facts we are of the view that there would be failure of
justice in case death sentence is not awarded in the
present case as the same undoubtedly falls within the
category of the rarest of the rare cases and the High Court
was not justified in commuting death sentence into life
imprisonment.

382. In C. Muniappan vs. State of Tamil Nadu, (2010) 9 SCC 567,

the Supreme Court while referring to the guidelines laid down in
Bachan Singh, Machhi Singh and Devender Pal Singh (supra)
emphasized that criminal law requires strict adherence to the rule of
proportionality in providing punishment according to the culpability
of each kind of criminal conduct. The accused in the said case had
burnt a bus carrying college girls as part of a public demonstration as
a result of which three girls died. Dismissing the appeal and
maintaining the award of death sentence to the Appellant, the Court
observed as under:- (SCC, pages 599 and 600, para 92)
92. Life imprisonment is the rule and death penalty an
exception. Therefore, the court must satisfy itself that death
penalty would be the only punishment which can be meted out
to a convict. The court has to consider whether any other
punishment would be completely inadequate and what would
be the mitigating and aggravating circumstances in the case.

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 Murder is always foul, however, the degree of brutality,
depravity and diabolic nature differ in each case.
Circumstances under which murders take place also differ from
case to case and there cannot be a straitjacket formula for
deciding upon circumstances under which death penalty must
be awarded. In such matters, it is not only the nature of
crime, but the background of criminal, his psychology, his
social conditions, his mindset for committing offence and
effect of imposing alternative punishment on the society
are also relevant factors.

It further observed:- (SCC, pages 600 and 601, para 96)

96. The aggravating circumstances in the case of Nedu @
Nedunchezhian (A-2), Madhu @ Ravindran (A-3) and C.
Muniappan (A-4) are that this offence had been committed after
previous planning and with extreme brutality. These
murders involved exceptional depravity on the part of Nedu @
Nedunchezhian (A-2), Madhu @ Ravindran (A-3) and C.
Muniappan (A-4). These were the murders of helpless,
innocent, unarmed, young girl students in a totally
unprovoked situation. No mitigating circumstances could
be pointed to us, which would convince us to impose a
lesser sentence on them. Their activities were not only
barbaric but inhuman of the highest degree. Thus, the
manner of the commission of the offence in the present
case is extremely brutal, diabolical, grotesque and cruel. It
is shocking to the collective conscience of society. We do
not see any cogent reason to interfere with the punishment of
death sentence awarded to Nedu @ Nedunchezhian (A-2),
Madhu @ Ravindran (A-3) and C. Muniappan (A-4) by the
courts below. Their appeals are liable to be dismissed.

383. It may be noted that the Supreme Court in C. Muniappan

(supra) referred to its earlier judgments rendered in Mahesh vs. State
of M.P. (supra); State of Punjab vs. Rakesh Kumar, (2008) 12 SCC
33; Sahdev vs. Jaibar, (2009) 11 SCC 798, Bantu vs. State of U.P.,
(2008) 11 SCC 113 and Sevaka Perumal vs. State of T.N., (1991) 3
SCC 471. In all the aforesaid decisions, the Honble Supreme Court
has deprecated the practice of imposing inappropriate sentence as it

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would render the justicing system suspect and undermine public
confidence in the efficacy of law.
384. In its judgment rendered in Ajitsingh Harnamsingh Gujral vs.
State of Maharashtra, (2011) 14 SCC 401, also relied upon by the
learned Special Public Prosecutor, the Honble Supreme Court in a
case of circumstantial evidence again held that gruesome, ghastly or
horrendous murders belong to the category of rarest of rare cases
where death sentence must be awarded. The Court, at paragraphs 93
and 94, observed as under:- (SCC, page 433, paras 93 and 94)
93. In our opinion a distinction has to be drawn between
ordinary murders and murders which are gruesome,
ghastly or horrendous. While life sentence should be given
in the former, the latter belongs to the category of the
rarest of rare cases, and hence death sentence should be
given. This distinction has been clarified by a recent judgment
of my learned brother Hon'ble C.K. Prasad, J. in Mohd. Mannan
v. State of Bihar, wherein it has been observed: (SCC pp. 322-
23, paras 23-24)

23. It is trite that death sentence can be inflicted

only in a case which comes within the category of
the rarest of rare cases but there is no hard-and-fast
rule and parameter to decide this vexed issue. This
Court had the occasion to consider the cases which
can be termed as the rarest of rare cases and
although certain comprehensive guidelines have
been laid to adjudge this issue but no hard-and-fast
formula of universal application has been laid down
in this regard. Crimes are committed in so different
and distinct circumstances that it is impossible to lay
down comprehensive guidelines to decide this
issue. Nevertheless it is widely accepted that in
deciding this question the number of persons killed
is not decisive.

24. Further, crime being brutal and heinous itself

does not turn the scale towards the death sentence.
When the crime is committed in an extremely
brutal, grotesque, diabolical, revolting or
dastardly manner so as to arouse intense and
extreme indignation of the community and when

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 collective conscience of the community is
petrified, one has to lean towards the death
sentence. But this is not the end. If these factors
are present the court has to see as to whether the
accused is a menace to the society and would
continue to be so, threatening its peaceful and
harmonious coexistence. The court has to further
enquire and believe that the accused condemned
cannot be reformed or rehabilitated and shall
continue with the criminal acts. In this way a
balance sheet is to be prepared while considering
the imposition of penalty of death of aggravating
and mitigating circumstances and a just balance is
to be struck. So long the death sentence is
provided in the statute and when collective
conscience of the community is petrified, it is
expected that the holders of judicial power do
not stammer dehors their personal opinion and
inflict death penalty. These are the broad
guidelines which this Court had laid down for
imposition of the death penalty.

94. We fully agree with the above view as it has clarified the
meaning of the expression the rarest of rare cases. To
take a hypothetical case, supposing A murders B over a land
dispute, this may be a case of ordinary murder deserving life
sentence. However, if in addition to murdering B, A goes to the
house of B and wipes out his entire family, then this will come in
the category of the rarest of rare cases deserving death
sentence. The expression the rarest of rare cases cannot, of
course, be defined with complete exactitude. However, the
broad guidelines in this connection have been explained by
various decisions of this Court. As explained therein, the
accused deserves death penalty where the murder was
grotesque, diabolical, revolting or of a dastardly manner so
as to arouse intense and extreme indignation of the
community, and when the collective conscience of the
community is petrified, or outraged. It has also to be seen
whether the accused is a menace to society and continues to
do so, threatening its peaceful and harmonious coexistence.
The court has to further enquire and believe that the accused
cannot be reformed or rehabilitated and shall continue with his
criminal acts. Thus a balance sheet is to be prepared in
considering the imposition of death penalty of the aggravating
and mitigating circumstances, and a just balance is to be
struck.

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385. In Sangeet and Anr. vs. State of Haryana, (2013) 2 SCC 452,
the Supreme Court noted that the Constitution Bench in Bachan
Singh laid down that not only the relevant circumstances of the
crime should be factored in, but due consideration must also be
given to the circumstances of the criminal. It further noted that
the Constitution Bench in Bachan Singh had expressed the hope
that in view of the broad illustrative guidelines laid down with
regard to aggravating and mitigating circumstances, the Courts:
209. will discharge the onerous function with evermore
scrupulous care and humane concern, directed along the
highroad of legislative policy outlined in Section 354(3) [of
CrPC] viz. that for persons convicted of murder, life
imprisonment is the rule and death sentence an exception.
It further observed:
29. Despite the legislative change and Bachan
Singh discarding Proposition (iv)(a) of Jagmohan Singh, this
Court in Machhi Singh revived the balancing of
aggravating and mitigating circumstances through a
balance sheet theory. In doing so, it sought to compare
aggravating circumstances pertaining to a crime with the
mitigating circumstances pertaining to a criminal. It hardly need
be stated, with respect, that these are completely distinct and
different elements and cannot be compared with one another. A
balance sheet cannot be drawn up of two distinct and
different constituents of an incident. Nevertheless, the
balance sheet theory held the field post Machhi Singh.
33. Therefore, in our respectful opinion, not only does the
aggravating and mitigating circumstances approach need a
fresh look but the necessity of adopting this approach also
needs a fresh look in light of the conclusions in Bachan Singh.
It appears to us that even though Bachan Singh intended
principled sentencing, sentencing has now really become
Judge-centric as highlighted in Swamy Shraddananda and
Bariyar. This aspect of the sentencing policy in Phase II as
introduced by the Constitution Bench in Bachan Singh seems
to have been lost in transition.

34. Despite Bachan Singh, primacy still seems to be given to

the nature of the crime. The circumstances of the criminal,
referred to in Bachan Singh appear to have taken a bit of a

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 back seat in the sentencing process. This was noticed
in Bariyar with reference to Ravji v. State of Rajasthan. It was
observed that curiously only characteristics relating to the
crime, to the exclusion of the criminal were found relevant to
sentencing. It was noted that Ravji has been followed in several
decisions of this Court where primacy has been given to the
crime and circumstances concerning the criminal have not been
considered. In para 63 of the Report it is noted that Ravji was
rendered per incuriam and then it was observed that: (Bariyar
case, SCC p. 529)
63. It is apparent that Ravji has not only been
considered but also relied upon as an authority on the
point that in heinous crimes, circumstances relating to
the criminal are not pertinent.
386. In Sandesh alias Sainath Kailash Abhang vs. State of
Maharashtra, (2013) 2 SCC 479, the Supreme Court reiterated:
22. it is not only the crime and its
various facets which are the foundation for formation of special
reasons as contemplated under Section 354(3) CrPC for
imposing death penalty but it is also the criminal, his
background, the manner in which the crime was committed and
his mental condition at the relevant time, the motive of the
offence and brutality with which the crime was committed are
also to be examined. The doctrine of rehabilitation and doctrine
of prudence are the other two guiding principles for proper
exercise of judicial discretion.
387. In a recent judgment rendered in the case of Gurvail Singh
alias Gala and Anr. vs. State of Punjab, (2013) 2 SCC 713, after
noting the law laid down in Bachan Singh case and Sangeet case,
the Supreme Court laid down the test and factors for the award of
death sentence as follows:
19. .To award death sentence, the
aggravating circumstances (crime test) have to be fully
satisfied and there should be no mitigating circumstance
(criminal test) favouring the accused. Even if both the tests
are satisfied as against the accused, even then the court
has to finally apply the rarest of rare cases test (R-R Test),
which depends on the perception of the society and not
Judge-centric, that is, whether the society will approve
the awarding of death sentence to certain types of crime or
not. While applying this test, the Court has to look into variety of

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 factors like society's abhorrence, extreme indignation and
antipathy to certain types of crimes like rape and murder of
minor girls, especially intellectually challenged minor girls, minor
girls with physical disability, old and infirm women with those
disabilities, etc. Examples are only illustrative and not
exhaustive. Courts award death sentence, because the
situation demands, due to constitutional compulsion,
reflected by the will of the people, and is not Judge-
centric.

388. In another recent decision rendered in the case of Sunder vs.

State, (2013) 3 SCC 215, the Supeme Court while dismissing the
appeal by the convict and affirming the award of death sentence, in
paragraph 42 of its judgment culled out the following factors which it
considered as aggravating circumstances:- (SCC, pages 239-240)
(a) The accused had been held guilty of two heinous offences,
which independently of one another, provide for the death
penalty viz. under Section 364-A and Section 302 of the
Penal Code.
(b) The facts and circumstances of the case did not depict any
previous enmity between the parties. There was no grave
and sudden provocation which had compelled the accused
to take the life of the prosecutrix, an innocent child of seven
years.
(c) On account of non-payment of ransom, a minor childs
murder was committed. This circumstance demonstrated
extreme mental perversion not worthy of human
condonation.
(d) The manner in which the victim was murdered and the
approach and method adopted by the accused, disclosed the
traits of outrageous criminality in the behaviour of the

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 accused. It was a well thought out and well-planned
murder. The approach of the accused revealed a brutal
mind set of the highest order.
(e) Murder was committed not of a stranger, but of a child with
whom the accused was acquainted.
(f) Extreme misery caused to the aggrieved party to be
regarded as an add on to the aggravating circumstances.
389. It deserves to be noted that in Sunders case (supra), a male
child of about seven years was kidnapped for ransom and when the
ransom was not paid the Appellant strangulated him, put his dead
body in a gunny bag and threw it in a tank from where it was
subsequently fished out. The Court noted that kidnapping the only
male child was to induce maximum fear in the mind of his parents,
agony which is unfathomable and the extreme misery caused to the
aggrieved party certainly added to the aggravating circumstances.
Suffice it to note that in the instant case the extreme misery and
trauma caused to the aggrieved party (the victim), and misery of a
nature which can never be effaced from the minds of the parents of
the victim, is of critical significance and hence it needs to be
considered by this Court whether the option of awarding any alternate
punishment, however harsh, is foreclosed.
390. In the case of Deepak Rai vs. State of Bihar, (2013) 10 SCC
421, a three-Judge Bench of the Supreme Court, while noting the
penological shift in the present Code legislated in 1973 making
imprisonment for life a rule and death sentence an exception, dwelt
upon the words special reasons for award of sentence of death

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mandated by the provisions of Section 354(3) of the Code. It noted
that in Bachan Singh case, in the context of the said provision,
special reasons were construed to mean exceptional reasons
founded on the exceptionally grave circumstances relating to the
crime as well as the criminal. It further noted that the Constitution
Bench in Shashi Nayar vs. Union of India, (1992) 1 SCC 96
observed that the special reasons clause means reasons, specific to
the facts of a particular case, which can be catalogued as justifying a
severe punishment and unless such reasons are not recorded death
sentence must not be awarded. It summed up with great perspicacity
the objects and purpose of the legislative mandate of assigning special
reasons and the judicial approach to be adopted in assigning such
reasons as follows: (SCC, page 448)
51. The aforesaid would reflect that under this provision the
legislature casts a statutory duty on the court to state reasons
for choice of the sterner sentence to be awarded in exceptional
cases as against the rule of life imprisonment and by necessary
implication, a legal obligation to explain them as distinguished
from the expression reasons follow. The legislative mandate of
assigning special reasons assures that the imposition of the
capital punishment is well considered by the court and that only
upon categorisation of the case as the rarest of rare, thus
leaving no room for imposition of a less harsh sentence, should
the court sentence the accused person to death.
52. Incontrovertibly, the judicial approach towards sentencing
has to be cautious, circumspect and careful. The courts at all
stagestrial and appellatemust therefore peruse and analyse
the facts of the case in hand and reach an independent
conclusion which must be appropriately and cogently justified in
the reasons or special reasons recorded by them for
imposition of life imprisonment or death penalty. The length of
the discussion would not be a touchstone for determining
correctness of a decision. The test would be that reasons must
be lucid and satisfy the appellate court that the court below has
considered the case in toto and thereafter, upon balancing all
the mitigating and aggravating factors, recorded the sentence.

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 x x x x x
60. This Court has consistently held that only in those
exceptional cases where the crime is so brutal, diabolical and
revolting so as to shock the collective conscience of the
community, would it be appropriate to award death sentence.
Since such circumstances cannot be laid down as a straitjacket
formula but must be ascertained from case to case, the
legislature has left it open for the courts to examine the facts of
the case and appropriately decide upon the sentence
proportional to the gravity of the offence.

391. Learned Special Public Prosecutor next contended that the

existence of death penalty on the statute book and its constitutionality
having been upheld by the Apex Court, courts are duty bound to
award it in befitting cases. Reference in this context was made by
him to the Constitution-Bench in Bachan Singh v. State of Punjab
(supra), Ajit Singh Harnamsingh Gujral v. State of Maharashtra
(supra) and to the more recent decision of the Supreme Court in
Mohammed Ajmal Mohammed Amir Kasab @ Abu Mujahid v.
State of Maharashtra (2012) 9 SCC 1.
392. In its judgment in Bachan Singh (supra), the Honble Supreme
Court held as under:
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 of the Penal Code
on the ground of 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 and light are rationally and
deeply divided in their opinion on this issue, is a ground among
others, for rejecting the petitioners 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,

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 jurists, 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 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 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-
sentence hearing and sentencing procedure on conviction
for murder and other capital offences were before the
Parliament and presumably considered by it when in 1972-
1973 it took up revision of the Code of 1898 and replaced it
by the Code of Criminal Procedure, 1973, it is not possible
to hold that the provision of death penalty as an alternative
punishment for murder, in Section 302 of the Penal Code is
unreasonable and not in the public interest

393. In Ajitsingh Harnamsingh Gujral v. State of Maharashtra

(supra), the Supreme Court after examining the entire gamut of case
law summed up the position in paragraph 96 of its judgment as
under:- (SCC, page 434, para 96)
96. It is only the legislature which can abolish the death penalty
and not the courts. As long as the death penalty exists in the
statute book it has to be imposed in some cases, otherwise it
will tantamount to repeal of the death penalty by the judiciary. It
is not for the judiciary to repeal or amend the law as that is in
the domain of the legislature vide Common Cause v. Union of
India [(2008) 5 SCC 511] (vide paras 25 to 27). The very fact
that it has been held that death penalty should be given only in
the rarest of rare cases means that in some cases it should be
given and not that it should never be given. As to when it has to
be given, the broad guidelines in this connection have been laid
down in Machhi Singh case [(1983) 3 SCC 470 : 1983 SCC
(Cri) 681] which has been followed in several decisions referred
to above.

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394. In Mohammed Ajmal Mohammed Amir Kasab @ Abu
Mujahid (supra), in para 577, the Honble Supreme Court observed:
Putting the matter once again quite simply, in this country
death as a penalty has been held to be constitutionally valid,
though it is indeed to be awarded in the rarest of rare cases
when the alternative option (of life sentence) is unquestionably
foreclosed. Now, as long as the death penalty remains on the
statute book as punishment for certain offences, including
waging war and murder, it logically follows that there must be
some cases, howsoever rare or one in a million, that would call
for inflicting that penalty.

395. Courts of law have been faced with the eternal strife between
the humanistic approach reflected in death sentence-in-no-case
doctrine favoured by the Abolitionists and the retributive approach
reflected in the death penalty in all heinous crimes favoured by the
Retentionists. In India particularly there is a deep divide between the
Abolitionists and the Retentionists for the death penalty. The present
position regarding capital punishment is to use it as sparingly as
possible, i.e., in the rarest of rare cases and this is the system as it
stands in India. True it is that it cannot be predicated that a crime-free
society will dawn if the hang-man is kept feverishly busy, but it is
equally true that barbariac rapes and heinous murders have become
the order of the day and inadequate punishment may lead to the
sufferings of the community at large. Societys abhorrence to the
atrocious crimes perpetrated upon innocent and helpless victims has
resulted in the death penalty being retained on the statute book to
remind such criminals in the society that human life is very precious
and one who dares to take the life of others must lose his own life.
No litmus test has been formulated to discern precisely what are the
rarest of rare cases in which the alternative option of awarding life

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sentence must be regarded as unquestionably foreclosed. Adherence
to the guidelines laid down by the Supreme Court from time to time is
the advisory for resolving the dilemma of the Judge in every murder
case: Death or life imprisonment for the murderer? The judiciary in
India has been vested with the discretion to impose or not to impose
the death penalty one of the greatest burdens it must carry till the
death penalty remains on the statute book. Predilictions of the Judge
must of necessity have no role to play.
396. The inevitable conclusion, therefore, is that it needs to be
examined in each individual case as to whether there is no other
alternative except to impose the death penalty in the larger public
interest and to maintain the integrity of life, the greatest gift bestowed
upon mankind, which cannot be allowed to be frittered away by
flagitious criminality.
397. Having noticed the legislative mandate laid down in Section
354(3) and the decisions of this Court on the aspect of imposition of
death sentence in the rarest of rare cases, we deem it expedient to
revert to the factual position in the instant case in our quest for the
appropriate sentence. The offence in the present case has indubitably
been committed in an extremely fiendish, demoniac, barbaric and
nefarious manner. Also the manner in which the offence has been
committed is demonstrative of exceptional licentiousness and
perversion of a superlative degree. Further, the time, place, manner
of execution and the motive behind the commission of the crime
speaks volumes of the pre-meditated and callous nature of the
offence. The medical evidence charters the hellish misery and trauma

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inflicted upon the prosecutrix before her death. Incontrovertibly also,
pain of an unparalleled order was inflicted upon her family members
and her companion (PW-1, the eye-witness), who were compelled to
watch her die many deaths before being certified dead. What makes
matters worse is that Debauchery, avarice, profligacy and viciousness
appear to be the only impelling forces behind the commission of the
crime. Most certainly, the crime was not committed to alleviate
poverty or the pangs of hunger and starvation, nor were the convicts
in such impecunious circumstances as is sought to be portrayed.
Undoubtedly they did not belong to the cream of the society, but they
were neither beggars nor vagabonds nor even ruffians for whom
crime is a means of self-preservation and is in fact reflective of the
social injustice meted out to them. They were in fact men who were
usefully and gainfully employed and were not expected to stoop so
low in their lust for money and in order to satiate their egregious
sexual appetite. Undeniably, the shocking incident left an indelible
scar on the social order and became a burning societal issue. An
enraged and infuriated society took to the streets to avenge the affront
inflicted upon it. Social abhorrence could not have been more
manifest nor the national shock at the incident more perceptible. It
would be no exaggeration or hyperbole to state that the shocking
incident had ramifications which crossed the national borders into
international terrain. The barbariety with which the internal organs of
the victim were pulled out with bare hands coupled with the twisting
of iron rods through every orifice in her body exhibits outlandish
mental perversion not worthy of human condonation. The medical

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reports of the victim reflect that her entire intestine was perforated,
splayed and cut open due to repeated insertions of rods and hands,
causing her irreparable injuries, leading to gangrenous bowels and her
ultimate death. In the postmortem report Ex.PW-34/A, besides other
serious injuries, various bite marks were observed on her face, lips,
jaws, near ear, on the right and left breast, left upper arm, right lower
limb, right inner groin, right lower thigh, left thigh lateral, left lower
anterior and genitals, depicting satantic beastliness. Further, the
convicts did not stop even after this vile orgy but proceeded to drag
the victims, one piled on the other, first to the rear gate of the bus, and
on finding the rear gate to be jammed, dragged the victims by their
hair to the front gate to be unceremoniously thrown out of the bus.
Not satisfied, an attempt was then made to run over the victims so as
to eliminate any chance of their living to tell their woeful tale. Their
conscience unpricked by the gruesome crime and the infernal torture
inflicted by them, they coolly proceeded to divide the looted articles
amongst themselves, to wash the bus which was stained with the
blood of the victims on its seat covers, curtains, stairs, floor, roof and
back gate and to burn unabashedly the clothes stripped off the backs
of the victims by lighting a bonfire. To expect society to be a
sanguine spectator to this kind of depraved behaviour of the
outlandish variety and to continue to extend its protective arm to the
convicts would be both unnatural and ludicrous.
398. Thus, we are constrained to hold that the mitigating
circumstances, elaborated upon by the defence by way of highlighting
the comparatively young age of the convicts, their socio-economic

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background, their clean antecedents and their chances of reformation,
fade into insignificance in the light of the aggravating circumstances
and the fact that we are of the considered view that the instant case
without a shadow of doubt falls in the category of the rarest of rare
cases where culpability has assumed the proportion of extreme
depravity. The entire incident is completely revolting, gruesome and
spine chilling. As regards the lack of criminal antecedents, we draw
strength from the following observations made by the Honble
Supreme Court in the case of Deepak Rai (supra): (SCC, page 463)
94. Further, in respect of the mitigating factors of lack of
criminal antecedents or probabilities of the appellants to be
menace to the society, we would reiterate the observations of
this Court in Gurdev Singh v. State of Punjab that it is indeed
true that the underlying principle of our sentencing
jurisprudence is reformation and there is nothing in evidence to
show that the appellants have been a threat or menace to the
society at large besides the FIR regarding the theft of buffalo. It
is also true that we cannot say that they would be a further
menace to the society or not as we live as creatures
saddled with an imperfect ability to predict the future.
Nevertheless, the law prescribes for future, based upon its
knowledge of the past and is being forced to deal with
tomorrow's problems with yesterday's tools.
399. We conclude by stating the obvious that a strong message
needs to be sent to the perpetrators of grotesque and ghastly crimes
against women that such crimes shall not be countenanced, though we
confess that we are not aware of any case in which a crime of such
dimensions has been committed hithertobefore. We cannot also but
be conscious of the fact that the gruesome manner of the execution of
the crime in the instant case is in a sense unparalled in the history of
criminal jurisprudence and that if the rising trend towards such crime
is not nipped in the bud and arrested at its inception, the poison is

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likely to spread like wild fire through the social order, rendering it
hapless and defunct. Exemplary punishment is, therefore, the need of
the hour, for, if this is not the rarest of rare cases there is likely to be
none.
400. For the reasons afore-recorded, Death Sentence Reference
No.6/2013 made by the trial court is accepted. The death sentence
awarded to accused Mukesh, Akshay @ Thakur, Pawan @ Kalu, and
Vinay is affirmed. Resultantly, Crl. A. No.1398/2013 filed by
accused Pawan @ Kalu, Crl. A. No.1399/2013 filed by accused
Mukesh and Crl. A. No.1414/2013 filed by accused Vinay and
Akshay @ Thakur are dismissed.

REVA KHETRAPAL
JUDGE
March 13, 2014
km /k/sk

PRATIBHA RANI, J.

1. I have had the advantage of going through the judgment

proposed by my esteemed sister Reva Khetrapal, J. answering the
Death Reference and confirming the death penalty awarded to the
four convicts in the infamous 16th December, 2012 gang rape case
and dismissal of their Appeals. While fully endorsing and concurring
with the judgment of my learned sister Reva Khetrapal, J., in
addition, I propose to record my views as to why the death penalty
should be awarded to the convicts.

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2. Ever since the hearing of the Death Reference and the
connected Appeals commenced, Mr.Dayan Krishnan, learned ASC
for the State, while contending that offences against all the convicts
stand proved beyond reasonable doubt, seeks confirmation of death
penalty as the unprecedented brutality with which the crime was
committed by the convicts, has shocked not only the nation but even
the international community. Mr.A.P.Singh, Advocate representing
convicts Akshay & Vinay Sharma and Mr.M.L.Sharma, Advocate
representing convicts Pawan Kumar Gupta and Mukesh are in unison
with learned ASC for the State that the brutality with which the crime
was committed brings it in the category of rarest of the rare cases.
However, the learned counsel for the convicts have been seeking
acquittal for all the four convicts on the ground of framing up the
innocent poor persons for the acts done by someone in connivance
with the complainant and efforts of State machinery to shield the real
offenders.
3. The incident of gang rape in the running bus on the night of
16th December, 2012 when brought to light by Media, sparked an
unprecedented public movement when people from every strata of
Society in the Country came on common platform demanding justice
for the victim. The outcry was for safety of women and punishment
proportionate to the crime for the offenders. Public demand was for
amending penal law thereby prescribing death sentence in deserving
cases of rape/gang rape.
4. The victim of gang rape committed in the moving bus is known
as Nirbhaya/Damini. Section 228-A of the Indian Penal Code, 1860

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makes disclosure of identity of the victim of certain offences
punishable. National and international community are more familiar
with the identity of the victim being described as Nirbhaya. To
respect the anonymity of the victim which is also the requirement of
law, wherever required, the victim would be referred as Nirbhaya.
5. While delicate physique of a woman has made her vulnerable,
her place and role in the growth of society has made her command
utmost respect. These characteristics of a woman have been depicted
by great Hindi Poet Jai Shankar Prasad in his epic Kamayanias :
Yeh aaj samajh to paayi hoon,
Main durbalta mein nari hoon,
Avyay ki sunder komalta,
Lekar main sabse haari hoon.

(This I understand today,

I am a woman, in weakness,
The delicate beauty of my limbs,
Because of them, I lose to all.)

Nari! tum kewal shraddha ho,

Vishwas-rajat-nag-pal-tal mein,
Piyush srot si baha karo,
Jeevan ki sundar samtal mein.

(Oh woman! You are honor personified,

Under the silver mountain of faith,
Flow you, like a river of ambrosia,
On this beautiful earth.)

6. Nirbhaya was on the verge of completing her Physiotherapy

Course and provide healing touch to many patients in need of
physiotherapy. Her fragile physique as a young girl rendered her

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totally helpless when the convicts took turn to rape her. She could
only look towards her friend (PW-1) for help who was also pinned
down and assaulted by the convicts to prevent him from coming to
her rescue.
7. The convicts did not spare any cavity in her body as they not
only satisfied their lust by committing rape per vagina and anal, but
also put their male organ in her mouth. They did not stop there and
after satisfying their lust, to draw sadistic pleasure, they inserted rods
in her private part. After being gang raped and insertion of the rods,
she was further tortured in most inhuman and barbaric manner by
inserting hand in her vagina and pulling out her internal organ. She
was not spared even thereafter and despite she being critical, they
pulled her hair and dragged her from rear portion of the bus to the
front gate and threw her out of the bus alongwith her friend in nude
condition, in the bushes, on the road side. Nirbhaya and PW-1 were
left there to die in a cold winter night in mid December (16th
December) with no ray of hope in sight to get any assistance from the
moving vehicles or passers-by to come to their rescue.
8. Perhaps the convicts were familiar with the insensitive attitude
of this metro city which also finds reflection in the couplet :

Lagta hai sheher mein aaye ho naye,

Ruk gaye ho raah, hadsa dekh kar.
Nirbhaya and her friend PW-1 were obviously dumped under the
belief that seeing a young male and female in nude condition on the
road side at night, even the passers-by noticing them in that condition

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might feel hesitant to help them. Further, even if PW-1 could gather
the courage to stand-up and support Nirbhaya to get up, being nude
due to shame, they would not be able to move ahead to seek help
from the persons in the moving vehicles on the road by signaling
them to stop and remove them to some hospital for necessary medical
aid.
9. The volcano that erupted in the form of protest in Delhi
dispelled above notion. On the public outcry, a Judicial Committee
headed by Justice J.S.Verma was set up by the Government to
suggest amendment to Criminal Law to deal with sexual assault
cases. Need of the hour was to satisfy the rage of the Society so that
people continue to have faith in the Judicial System and are dissuaded
to take law in their hands in an anxiety to deliver quick and instant
justice. The Criminal Law Amendment Act, 2013 was passed
amending Indian Penal Code to provide death penalty in rape cases
that lead to death of the victim or leave her in a vegetative state.
10. Seldom does a crime lead to far reaching changes in law as was
notified and effected in rape laws in the aftermath of infamous 16 th
December, 2012 gang rape case. Within days of incident, Fast Track
Courts were ordered to be set up in all part of the Country to deal with
the cases relating to sexual assault against women. Overnight, safety
of women became a cause of concern for all, as irrespective of age,
sex, caste and creed, public came on the streets on knowing about the
gang rape and brutal assault on a young paramedical student who was
returning with her friend (PW-1) after seeing the movie Life of Pi.
How a young boy and a carnivorous (tiger) comfort each other in

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adversity and despite both being hungry and nothing available for
their survival, did not harm each other, must be etched in her mind.
11. The macabre chain of events that occurred in the moving bus
on 16th December, 2012 need not be repeated. From the un-curtaining
of the gruesome events, it is manifest that on the date of occurrence,
the night slowly and intensely developed into real darkness for the
victim as the convicts, to satisfy their lust, not only found easy prey
when the victim alongwith her friend boarded the contract bus with a
hope to have comfortable journey at an affordable fare, little realizing
what the destiny had in store for them. While boarding the contract
bus with some persons sitting on passengers seats, she expected a
comfortable return journey to her home in the company of her friend.
The luxury bus with dark window panes proved haven for the
convicts to commit the gruesome act without bothering to find a
suitable place to commit the rape and risking them to identification.
While the close doors and windows of the bus prevented the screams
of the victim to be heard by persons moving on the road, switching of
the lights prevented detection by other moving vehicles on the road.
12. When the horrific details of the crime committed on Nirbhaya
in a moving bus on the night of 16th December, 2012 came in public
domain, it evoked a reaction from the public that was unprecedented.
From common man to persons in power had only one demand i.e.
justice for victim who succumbed to the injuries suffered at the hands
of the convicts due to their barbaric acts. The crime was horrendous.
Delhi earned the title of Rape Capital.

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13. While hearing the Death Reference, it has to be considered
whether the death sentence is required to be confirmed by examining
presence or absence of special reasons requiring confirmation of
death sentence or commutation to life imprisonment. If on such
consideration, such special reasons can be discerned from the facts
and circumstances of the case, death sentence has to be confirmed and
in the absence thereof, only imprisonment to life should be awarded.
In a recent report State of Rajasthan vs. Jamil Khan 2013 (12)
SCALE 200, the Supreme Court had the occasion to examine this
aspect and make the following observations :
23. The detailed procedure would clearly show the seriousness
with which the High Court has to consider a reference for the
confirmation of death sentence. In a recent decision in Kunal
Majumdar v. State of Rajasthan MANU/SC/0736/2012 : (2012)
9 SCC 320, a coordinate Bench of this Court has held that it is a
special and onerous duty of the High Court. To quote:
18...A duty is cast upon the High Court to examine the
nature and the manner in which the offence was committed,
the mens rea if any, of the culprit, the plight of the victim as
noted by the trial Court, the diabolic manner in which the
offence was alleged to have been performed, the ill-effects it
had on the victim as well as the society at large, the mindset
of the culprit vis-`-vis the public interest, the conduct of the
convict immediately after the commission of the offence and
thereafter, the past history of the culprit, the magnitude of the
crime and also the consequences it had on the dependants or
the custodians of the victim. There should be very wide range
of consideration to be made by the High Court dealing with
the reference in order to ensure that the ultimate outcome of
the reference would instill confidence in the minds of peace-
loving citizens and also achieve the object of acting as a
deterrent for others from indulging in such crimes.

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14. The learned Addl. Session Judge has considered the
aggravating and mitigating circumstances referred to hereinafter and
applied the R-R Test as per the guidelines laid down in Gurvail Singh
@ Gala & Anr. Vs. State of Punjab (2013) 2 SCC 713. The
aggravating and mitigating circumstances have been recorded as
under :
Aggravating circumstances :
(i) intense and extreme indignation of society.
(ii) demonstration of exceptional depravity and extreme brutality
(iii) extreme misery inflicted upon the prosecutrix
(iv) grave impact of crime on social order

Mitigating circumstances :

(i) young age of the convicts

(ii) socio economic status as also the plea of reformatory approach
(iii) clean antecedents

15. The learned Addl. Session Judge referred to various decisions

of the Supreme Court wherein young age, first offender, socio
economic condition and state of intoxication were not considered as
mitigating circumstances. To bring on record that the facts of the
instant case satisfy even the R-R test, learned Addl. Session Judge
recorded that (i) in most barbaric manner, the convicts, pulled out
internal organs of prosecutrix with their bare hands as well as by rods;
(ii) the entire intestine of prosecutrix was perforated, splayed and cut
open due to repeated insertions of rods and hands; (iii) after luring the
victims into the bus, the convicts brutally gang raped the victim,
inflicted inhuman torture and threw defenceless victims out of the

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moving bus in naked and profusely bleeding condition in a cold
winter night and their unprovoked crime demonstrated exceptional
depravity of mind of the convicts.
16. The learned Addl. Session Judge recorded that the sufferings
inflicted on the prosecutrix was unparallel calling for extreme
penalty.
17. The constitutional validity of Section 302 Indian Penal Code,
which prescribes death as one of the punishments, was considered by
the Constitution Bench in Bachan Singh vs. State of Punjab (1980) 2
SCC 684. By a majority of 4:1, the Constitution Bench declared that
Section 302 Indian Penal Code was constitutionally valid. It is well
settled that awarding of life sentence is a rule and death is an
exception.
18. Section 354(3) of the Code of Criminal Procedure requires that
when the conviction is for an offence punishable with death or in the
alternative with imprisonment for life or imprisonment for a term of
years, the judgment shall state the reasons for the sentence awarded,
and in the case of sentence of death, the special reasons thereof.
19. The condition of providing special reasons for awarding death
penalty is to satisfy the requirement of law to award/uphold the death
penalty. Because of irrevocable nature of the death penalty, this
Court has to satisfy itself that manner of committing the crime is such
that it pricks the judicial conscience of the Courts to such an extent
that awarding death sentence would be an inescapable conclusion.
20. On behalf of all the convicts, it has been submitted that even
after 16th December gang rape case and the amendment in Penal Law,

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the crime rate against women has not decreased. Thus, awarding
death penalty to the convicts may not have any deterrent effect on
potential offenders.
21. In this regard, suffice it to note that it is the duty of the Court to
impose appropriate sentence having regard to the nature of the crime
and the pre-planned manner in which atrocities were committed on
the hapless victim, having due regard not only the rights of criminal
but also that of the victim. The cruel acts committed by the convicts
are such that if appropriate sentence is not awarded, rage of the
society would not be satisfied and our justicing system would be
rendered suspect. This would be having devastating effect as
common man will lose faith in the Courts. Any leniency shown in the
matter would not only be misplaced but would give rise to a feeling
of private revenge among the people leading to lawlessness in the
society. The Court would not like such a situation to prevail. The
victim has been subjected to such a cruelty which is extremely brutal,
inhuman and unheard of. The convicts indulged in a deliberately
planned crime and meticulous execution by alluring the victim and
her friend (PW-1) in the bus pretending to be ferrying passengers to
the destination. It may be noticed that except the young age of the
convicts and dependence of their family on them, learned counsel for
the convicts could not point out any other mitigating circumstance.
On the contrary, the case discloses only aggravating circumstances
which have been referred to above. Thus, irrespective of the fact
whether the death sentence has deterrent effect or not, to award lesser

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punishment to the convicts by letting them escape the death penalty
would do more harm to the justice system.
22. Though commutation has also been prayed on the ground that
all the convicts are young and have family to support, that itself is not
sufficient to award life imprisonment. In the case of Dhananjoy
Chatterjee vs. State of West Bengal (1994) 2 SCC 220, death
sentence was awarded to the Appellant who was a young married man
of 27 years of age. The Supreme Court, finding it to be a case of rape
and murder of a young girl of about 18 years, opined that a real and
abiding concern for the dignity of human life is required to be kept in
mind by Courts while considering the confirmation of the sentence of
death. In para 14 of the report, while expressing concern about the
rising graph of violent crime against women and societys cry for
justice, the Supreme Court emphasized the need to impose sentence
befitting the crime, observing :
14. In recent years, the rising crime rate-particularly violent
crime against women has made the criminal sentencing by the
courts a subject of concern. Today there are admitted
disparities. Some criminals gel very harsh sentences while
many receive grossly different sentence for an essentially
equivalent crime and a shockingly large number even go
unpunished, thereby encouraging the criminal and in the
ultimate making justice suffer by weakening the system's
credibility. of course, it is not possible to lay down any cut
and dry formula relating to imposition of sentence but the
object of sentencing should be to see that the crime does not
go unpunished and the victim of crime as also the society has
the satisfaction that justice has been done to it. In imposing
sentences, in the absence of specific legislation, Judges must
consider variety of factors and alter considering all those
factors and taking an over-all view of the situation, impose

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 sentence which they consider to be an appropriate one.
Aggravating factors cannot be ignored and similarly
mitigating circumstances have also to be taken into
consideration.
23. In Bantu vs. State of U.P. (2008) 11 SCC 113, the death
sentence was confirmed for the special reason of the depraved and
heinous act of rape and murder of a 5 year old child, which included
the insertion of a wooden stick in her vagina to the extent of 33
cms, to masquerade the crime as an accident. The Supreme Court
held that the case at hand falls in the rarest of the rare category. The
depraved acts of the accused call for only one sentence, that is,
death sentence.
24. Nirbhaya and her friend had reposed complete confidence in
the occupants of the contract bus while boarding the same to reach
their destination. The four convicts and their associates must have
been believed to be bonafide driver/conductor/cleaner/passengers. It
was on account of such representation by the convicts leading to
belief that they were being taken to their destination in the contract
bus, they fell in the trap laid by the convicts. The convicts, misusing
the confidence and faith of the victim and her friend, made them to
board the bus so as to overpower them on the way and satisfy their
lust. The crime was pre-planned and executed by resorting to
diabolical method, exhibiting inhuman conduct in a ghastly manner,
pricking the conscience of everyone in the society. When the
innocent hapless young lady was subjected to such barbaric treatment
by the convicts who were in position of trust, their culpability
assumes the proportion of extreme depravity and arouses a sense of

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revulsion in the mind of the common man. The motive of the
convicts while alluring the victim and her friend to board the bus,
motivation of the perpetrators, the vulnerability and the helplessness
of the victim, the enormity of the crime, the barbaric and inhuman act
of inserting rods and hand in her private part, taking out her internal
organs, pulling her with hair, dragging her from rear portion of the
bus to the front gate and throwing out of the bus alongwith her friend
in nude condition on the road side, persuade us to hold that this is a
case where not only to deter others from committing such atrocious
crimes but also to give emphatic expression to societys abhorrence of
such crimes, death penalty needs to be confirmed.
25. It stands established beyond reasonable doubt that it is a case of
gravest crime of extreme brutality by the convicts shocking the
collective conscience of the society and clearly falls under the
yardstick laid down by the Apex Court in various decisions referred
to by my noble sister Reva Khetrpal, J. while confirming the death
penalty awarded to the convicts.
26. In the light of aforesaid, I am of the considered opinion that
with regard to all the four convicts, death penalty awarded to them
has to be confirmed.
27. Thus, agreeing with the conclusion in the opinion of my
venerated sister Reva Khetrapal, J., I endorse the directions
confirming the death penalty to all the four convicts and dismissal of
their appeals.
PRATIBHA RANI
March 13, 2014/st JUDGE

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