Review is a not a rehearing of the appeal over again. In a review petition, it is not for the Court to re-appreciate the evidence and reach a different conclusion.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
REVIEW PETITION (CRIMINAL) D NO.44603 OF 2019
IN
CRIMINAL APPEAL NOS.609-610 OF 2017
AKSHAY KUMAR SINGH …Petitioner
VERSUS
STATE (NCT OF DELHI) …Respondent
J U D G M E N T
R. BANUMATHI, J.
This Review Petition has been preferred by the petitioneraccused Akshay Kumar Singh who was the cleaner of the bus to
review the judgment dated 05.05.2017 passed by this Court in
Criminal Appeal Nos.609-610 of 2017 in and by which this Court
confirmed the conviction and death penalty imposed upon the
petitioner by the trial court as well as by the High Court.

  1. In the evening of 16.12.2012, the prosecutrix (since
    deceased) had gone for a movie with her friend, PW-1. At about
    08:45 pm, both the prosecutrix and PW-1 left the movie theatre and
    reached Munirka bus stand and they boarded the bus bearing
    1
    registration No. DL-1PC-0149. This bus was being driven by
    accused Ram Singh (since deceased) and the petitioner-Akshay
    Kumar Singh @ Thakur was the helper thereof. The accused
    misbehaved with the prosecutrix and have committed gang rape of
    the prosecutrix in the moving bus. They also committed unnatural
    offence and inserted iron rod in the private parts of the prosecutrix.
    The accused persons had beaten up PW-1 with iron rods and his
    clothes were torn off. The accused also took away all the
    belongings of the prosecutrix and PW-1 and thereafter, threw the
    prosecutrix and PW-1 in a naked/semi naked condition from the
    moving bus. The prosecutrix was treated at Safdarjung Hospital,
    Delhi where her three dying declarations were recorded. Since the
    condition of the prosecutrix became critical, she was shifted for
    further treatment on 27.12.2012 to Mt. Elizabeth Hospital,
    Singapore where, she died on 29.12.2012.
  2. The trial court held that the complicity and guilt of the accused
    were proved and convicted the petitioner and other accused under
    Sections 120-B IPC, 376 (2)(g) read with Section 120-B IPC, 377
    read with Section 120-B IPC, 365 and 366 read with Section 120-B
    IPC, 395 read with Section 120-B IPC, 397 read with Section 120-B
    IPC, 302 read with Section 120-B IPC, 307 read with Section 120-B
    2
    IPC, 412 and 201 read with Section 120-B IPC and inter alia
    imposed death penalty upon them. Death penalty and other
    sentence of imprisonment imposed upon them was confirmed by
    the High Court. The accused had filed Criminal Appeal Nos.609-610
    of 2017 before this Court.
  3. Criminal appeal filed by the petitioner had earlier been
    dismissed by this Court vide its judgment dated 05.05.2017 in
    Mukesh and another v. State (NCT of Delhi) and others (2017) 6
    SCC 1 on the basis of the following evidence which firmly
    established the presence of the petitioner at the scene of the
    incident and his involvement in the commission of rape on the
    prosecutrix :-
    (i) evidence of PW-1/injured eye-witness who spoke about the
    occurrence in the bus; PW-1 identified the petitioner in the TIP
    conducted on 26.12.2012 as one of the persons who came out of the
    driver’s cabin from the bus and started abusing PW-1 and later, took
    the prosecutrix to the back side of the bus and raped her;
    (ii) three dying declarations of the prosecutrix of which, in the second
    dying declaration (ExPW27/A), prosecutrix stated the incident in
    detail and that the accused persons were calling “Ram Singh,
    Thakur, Raju, Mukesh, Pawan and Vinay and in the third dying
    declaration, the prosecutrix wrote the names of the accused “Ram
    Singh, Mukesh, Vinay, Akshay, Vipin, Raju” including petitionerAkshay Kumar Singh and other accused;
    3
    (iii) evidence of PW-81-Dinesh Yadav, owner of the bus in which he has
    stated that accused Ram Singh was the driver and petitioner was the
    helper in the bus in which the incident occurred;
    (iv) Ex.PW71/C, report of PW-71-Dr. Ashith B. Acharaya who opined that
    one bite mark found on the prosecutrix could have been possibly
    caused by the petitioner; three other bite marks were caused by
    accused Ram Singh;
    (v) DNA evidence – DNA profile generated from the blood-stained jeans
    and banian of the petitioner recovered at the behest of petitioner
    matched with the DNA profile of the prosecutrix; another set of DNA
    profile generated from jeans pant of the petitioner matched with the
    DNA profile of PW-1 and DNA profile generated from breast swab of
    the victim which was found consistent with the DNA profile of the
    blood of the petitioner;
    (vi) recovery of metro card and silver ring of PW-1 recovered at the
    behest of the petitioner and identified by PW-1.
  4. We have heard Mr. A.P. Singh, learned counsel appearing for
    the petitioner-accused No.3. We have also heard Mr. Tushar
    Mehta, learned Solicitor General appearing for NCT of Delhi
    assisted by Ms. Supriya Juneja, learned counsel.
  5. The learned counsel Mr. A.P. Singh had taken us through the
    various grounds urged in the review petition and prayed for review
    of the judgment. The learned Solicitor General Mr. Tushar Mehta
    submitted that the evidence adduced by the prosecution and the
    defence plea has been considered threadbare both by the trial
    court, High Court and also by this Court. The learned Solicitor
    4
    General submitted that upon appreciation of evidence, the High
    Court and the Supreme Court upheld the findings as to the guilt of
    the accused and also the sentence. The learned Solicitor General
    also submitted that the very same grounds were raised in the review
    petition by the co-accused and the same was dismissed by this
    Court vide judgments in Mukesh v. State (NCT of Delhi) (2018) 8
    SCC 149 and Vinay Sharma and another v. State (NCT of Delhi)
    and others (2018) 8 SCC 186.
  6. In this review petition, the petitioner prays for review of the
    judgment dated 05.05.2017. In the review petition before us, the
    petitioner has again sought to assail the merits of the prosecution
    case and the findings rendered thereon which cannot be permitted.
  7. It is no longer res integra that scope of review is limited and
    review cannot be entertained except in cases of error apparent on
    the face of the record. Article 137 of the Constitution of India
    empowers the Supreme Court to review any judgment pronounced
    or made, subject, of course, to the provisions of any law made by
    the Parliament or any rule made under Article 145 of the
    Constitution of India. Order XLVII Rule 1 of Supreme Court Rules,
    2013 dealing with review reads as follows:-
    “1. The Court may review its judgment or order, but no application for
    review will be entertained in a civil proceeding except on the ground
    5
    mentioned in Order 47 Rule 1 of the Code, and in a criminal
    proceeding except on the ground of an error apparent on the face of
    the record.”
    As per the Supreme Court Rules, review in the criminal proceedings
    is permissible only on the ground of error apparent on the face of
    the record.
  8. The jurisdiction of this Court under Article 137 of the
    Constitution of India has been clearly stated in Sow Chandra Kante
    and Another v. Sheikh Habib (1975) 1 SCC 674, wherein this Court
    held as under:-
    “A review of a judgment is a serious step and reluctant resort to it is
    proper only where a glaring omission or patent mistake or like grave
    error has crept in earlier by judicial fallibility. A mere repetition through
    different counsel of old and overruled arguments, a second trip over
    ineffectually covered ground or minor mistakes of inconsequential
    import are obviously insufficient.”
  9. Review is a not a rehearing of the appeal over again. In a
    review petition, it is not for the Court to re-appreciate the evidence
    and reach a different conclusion. The scope of review jurisdiction
    has been elaborately considered by this Court in number of cases
    and the well settled principles have been reiterated time and again.
    In Kamlesh Verma v. Mayawati and Others (2013) 8 SCC 320, the
    Supreme Court held as under:-
    6
    “17. In a review petition, it is not open to the Court to reappreciate the
    evidence and reach a different conclusion, even if that is possible.
    Conclusion arrived at on appreciation of evidence cannot be assailed in
    a review petition unless it is shown that there is an error apparent on the
    face of the record or for some reason akin thereto. This Court in Kerala
    SEB v. Hitech Electrothermics & Hydropower Ltd. (2005) 6 SCC 654
    held as under: (SCC p. 656, para 10)
    “10. … In a review petition it is not open to this Court to
    reappreciate the evidence and reach a different conclusion, even
    if that is possible. The learned counsel for the Board at best
    sought to impress us that the correspondence exchanged
    between the parties did not support the conclusion reached by
    this Court. We are afraid such a submission cannot be permitted
    to be advanced in a review petition. The appreciation of evidence
    on record is fully within the domain of the appellate court. If on
    appreciation of the evidence produced, the court records a finding
    of fact and reaches a conclusion, that conclusion cannot be
    assailed in a review petition unless it is shown that there is an
    error apparent on the face of the record or for some reason akin
    thereto. It has not been contended before us that there is any
    error apparent on the face of the record. To permit the review
    petitioner to argue on a question of appreciation of evidence
    would amount to converting a review petition into an appeal in
    disguise.”
  10. Considering the scope of review under Article 137 of the
    Constitution of India and observing that normally in a criminal
    proceeding, review applications cannot be entertained except on
    the ground of error apparent on the face of the record, in Vikram
    7
    Singh alias Vicky Walia and Another v. State of Punjab and Another
    (2017) 8 SCC 518, the Supreme Court held as under:-
    “23. In view of the above, it is clear that scope, ambit and parameters of
    review jurisdiction are well defined. Normally in a criminal proceeding,
    review applications cannot be entertained except on the ground of error
    apparent on the face of the record. Further, the power given to this Court
    under Article 137 is wider and in an appropriate case can be exercised to
    mitigate a manifest injustice. By review application an applicant cannot
    be allowed to reargue the appeal on the grounds which were urged at
    the time of the hearing of the criminal appeal. Even if the applicant
    succeeds in establishing that there may be another view possible on the
    conviction or sentence of the accused that is not a sufficient ground for
    review. This Court shall exercise its jurisdiction to review only when a
    glaring omission or patent mistake has crept in the earlier decision due
    to judicial fallibility. There has to be an error apparent on the face of the
    record leading to miscarriage of justice to exercise the review jurisdiction
    under Article 137 read with Order 40 Rule 1. There has to be a material
    error manifest on the face of the record with results in the miscarriage of
    justice.”
  11. A review of the judgment is permitted only when it is shown
    that judgment suffers from error apparent on the face of the
    judgment. In P.N Iswara Iyer and Others v. Registrar, Supreme
    Court of India (1980) 4 SCC 680, while considering Order XL Rule 1
    of the Supreme Court Rules, 1996, the Constitution Bench of the
    Supreme Court observed that Order XL Rule 1 affords the wider set
    of grounds for review of orders in civil proceedings, but limits the
    8
    grounds vis-à-vis criminal proceedings to errors apparent on the
    face of the judgment.
  12. Applying the above parameters of the review jurisdiction, it is
    to be seen whether the petitioner has made out any ground
    indicating error apparent on the face of the record warranting review
    of our judgment dated 05.05.2017.
  13. Even at the outset, it is to be pointed out that the grounds
    raised by the petitioner-accused in this review petition are identical
    to that of the grounds raised by the co-accused in their review
    petitions. Those grounds urged by the co-accused in their review
    petitions were considered and rejected by this Court in Mukesh v.
    State (NCT of Delhi) (2018) 8 SCC 149 and Vinay Sharma and
    another v. State (NCT of Delhi) and others (2018) 8 SCC 186.
  14. At this juncture, we would like to point out two grounds raised
    by the petitioner in this review petition viz., (i) futility of awarding
    death sentence in Kalyug, where a person is no better than a dead
    body; and (ii) that the level of pollution in Delhi NCR is so great that
    life is short anyhow and everyone is aware of what is happening in
    Delhi NCR in this regard and while so, there is no reason why death
    penalty should be awarded. According to the petitioner, in view of
    the above, he should be spared of the death sentence. We find it
    9
    unfortunate that such grounds have been raised in the matter as
    serious as the present case.
  15. The petitioner has also raised the plea that death penalty is
    the ultimate denial of human rights and that it violates the right to
    life; it also goes against the principle of non-violence. In the review
    petition, the petitioner has put forth the general case against the
    capital punishment by stating that only the poor and downtrodden
    are more likely to be sentenced with death sentence. Such general
    contentions put forth against the capital punishment cannot be gone
    into in this review petition.
  16. The petitioner has raised the plea as to the lack of
    professional skills of the investigating agency and the need for an
    unbiased investigation. In the petition, general allegations have
    been made against the investigating agency alleging extortion of
    confession and then create evidence to falsely implicate the
    accused. The grounds raised in the petition alleging improper
    investigation and manipulation of evidence are too general and not
    specific. It is to be pointed out that each and every point raised by
    the petitioner-accused assailing the course of investigation was well
    considered by the trial court which we have gone through at the
    10
    time of hearing of the criminal appeals. The same points cannot be
    urged again and again.
  17. So far as the dying declaration is concerned, the petitioner
    has raised the same contention which was raised earlier that is,
    according to the petitioner, only the first dying declaration
    (Ex.PW49/A) recorded by PW-49-Dr. Rashmi Ahuja where the
    prosecutrix has neither named nor mentioned the name of any of
    the accused persons, has to be relied upon. Contention of the
    petitioner is that the second dying declaration (Ex.PW27/A)
    recorded by PW-24-Dr. Usha Chaturvedi, SDM on 21.12.2012 could
    not have been recorded as the victim was under the life support and
    she could not have given four pages of dying declaration. Further
    contention of the petitioner is that the third dying declaration
    recorded by PW-30-Pawan Kumar, Metropolitan Magistrate where
    the victim has named the petitioner and other accused was a
    tutored version and cannot be relied upon.
  18. Mr. A.P. Singh, learned counsel appearing for the petitioneraccused has contended that investigation in the present case is
    flawed and unreliable. It was submitted that insofar as the recording
    of the statement of witnesses under Section 161 Cr.P.C., manner of
    arrest of the accused, conduct of test identification parade are
    11
    doubtful. Various contentions assailing the course of investigation
    have been raised both before the trial court as well as before the
    High Court and this Court which have been considered threadbare
    and were rejected. We do not find any merit in the contention of the
    learned counsel for the petitioner assailing the investigation.
  19. The learned counsel submitted that because of the media
    pressure, the petitioner and other accused have been falsely
    implicated. Taking us through the averments made in para 3(f) of
    the review petition, the learned counsel submitted that PW-1-
    Awninder Pratap Singh had taken heavy amount as bribe and this
    has been highlighted in some of the news channels which affect the
    credibility of the evidence of PW-1. It was submitted that in this
    regard, Heera Lal Gupta, father of co-accused Pawan Gupta had
    filed a complaint vide Diary No.26A on 02.11.2019 before SHO, PS
    R.K. Puram, Sector-12, New Delhi and also before Deputy
    Commissioner of Police, Vasant Vihar. The averments made in
    para 3(f) of the review petition are subsequent events unsupported
    by any material. In a criminal case, culpability or otherwise of the
    accused are based upon appreciation of evidence adduced by the
    prosecution and also the evidence adduced by the defence. The
    materials or the news emerging in the media and press as also the
    12
    news channels cannot be taken note of in arriving at a conclusion
    on the culpability of the accused or to test credibility of the witness.
    Such events cannot be urged as a ground for review.
  20. The learned counsel appearing for the petitioner-accused has
    taken us through the averments made in para 3(g) of the review
    petition and also the clippings of book titled “Black Warrant” written
    by Sunil Gupta, a former law officer of Central Jail, Tihar, Delhi who
    served long time in Tihar jail. The learned counsel submitted that in
    the book written by the above officer, the officer has expressed his
    opinion that Ram Singh, accused No.1 was murdered in Tihar jail on
    11.03.2013. Here again, the opinion of the said former law officer
    Sunil Gupta is only his opinion which is not supported by any
    material. If the former law officer had any doubt regarding death of
    Ram Singh, the said officer could have offered himself to appear as
    a defence witness or he could have filed an affidavit before any of
    the courts, either trial court or High Court or before the Supreme
    Court. The opinion of the said officer Sunil Gupta which is not
    supported by any material, cannot be a ground for reviewing our
    judgment.
  21. As pointed out in the judgment, there were three dying
    declarations recorded from the prosecutrix:-
    13
    (i) in the first dying declaration (Ex.PW-49/A) recorded by Dr. Rashmi
    Ahuja (PW-49) on 16.12.2012 at 11.15 pm, the prosecutrix has
    stated that more than two men committed rape on her after which,
    she does not remember the sexual intercourse; the prosecutrix also
    stated that she was subjected to unnatural sex and she was bitten
    over her lips, cheeks and breast;
    (ii) in the second dying declaration (Ex.PW-27/A) recorded by PW-27-
    Usha Chaturvedi, SDM on 21.12.2012 at 09.00 pm, the prosecutrix
    has narrated the entire incident in great detail, specifying the role of
    each of the accused, rape committed by number of persons, insertion
    of iron rod in her private parts, description of the bus, robbery
    committed and throwing of both the victims out of the moving bus in
    naked condition. Prosecutrix also stated that the accused were
    calling each other “Ram Singh, Thakur, Raju, Mukesh, Pawan and
    Vinay”; and
    (iii) in the third dying declaration (Ex.PW-30/D) recorded on 25.12.2012
    at 1.00 p.m by PW-30-Pawan Kumar, Metropolitan Magistrate by
    putting multiple choice questions to the victim and getting answers by
    gestures and writing. While giving third dying declaration, prosecutrix
    revealed the names of the accused by writing in her own handwriting
    viz. “Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju”.
    This Court considered the three dying declarations in the light of the
    well-settled principles and found that the multiple dying declarations
    inspire the confidence of the Court and are credible. The above
    contentions were earlier raised and were considered by this Court in
    paras (148) to (164), (186) to (192) and (395) to (417) of the
    judgment and rejected. While so, the petitioner cannot raise the
    same plea.
    14
  22. So far as the plea of alibi, contention of the petitioner is that
    he was not present in Delhi on the night of 16.12.2012 and that he
    accompanied his sister-in-law Sarita Devi (DW-15) along with her
    son Kundan. He boarded Mahabodhi Express on 15.12.2012 and
    left for Aurangabad, Bihar from Platform No.9, New Delhi Railway
    Station. Contention of the petitioner that the evidence adduced by
    the petitioner to prove his presence in the Karmalahang, P.S.
    Thandva, District-Aurangabad, that is the evidence of DW-1, local
    auto driver, DW-12-Sarju Singh who has spoken about the petitioner
    reaching his house in his native village on 16.12.2012 and DW-13-
    Rajmohan, father-in-law of petitioner and DW-14-Punita Devi, wife
    of petitioner who have deposed that the petitioner came to their
    house in the native village Karmalahang along with Sarita Devi
    (DW-15), would show that the petitioner was not present in Delhi on
    the night of 16.12.2012. It was submitted that though the defence
    has showed booked ticket details of Mahabodhi Express from New
    Delhi to Aurangabad on 15.12.2012 to prove the departure of the
    petitioner, this aspect was not appreciated by the court and the
    petitioner’s plea of alibi was erroneously turned down.
  23. To substantiate the plea of alibi, the petitioner has examined
    DW-11-Chavinder, Auto Driver who has taken the petitioner and his
    15
    family members from Anugrah Narayan Railway Station, DistrictAurangabad, Bihar to his native village, Karmalahang. DW-12-Sarju
    Singh, DW-13-Rajmohan, father-in-law of petitioner and DW-14-wife
    of the petitioner have spoken about the presence of petitioner in the
    village. DW-15-Sister-in-law of petitioner whom the petitioner claims
    had accompanied her on 15.12.2012. Considering the evidence of
    DWs 12, 14 and 15 in Para (256), this Court has observed that DWs
    12, 14 and 15 are all relatives of accused Akshay Kumar Singh alias
    Thakur and that as observed by both the courts, they tried to wriggle
    the petitioner out of the messy situation as is the natural instinct of
    the family members.
  24. The plea of alibi taken by the petitioner-accused and the
    evidence adduced by the petitioner has been well-considered by
    this Court in Paras (247) to (269). Upon appreciation of evidence,
    this Court affirmed the findings of the trial court and the High Court
    rejecting the plea of alibi and held that plea of alibi taken by the
    petitioner is an afterthought. We do not find any error apparent on
    the face of the record in consideration of evidence and rejection of
    the plea of alibi. The appreciation of evidence in rejecting the plea of
    alibi does not suffer from any error apparent on the face of the
    record and this cannot be urged as a ground for review.
    16
  25. The next contention urged by the petitioner is the use of iron
    rod and absence of injury to the uterus on the alleged insertion of
    the iron rod in the private parts of the victim. Elaborate submissions
    were made on the alleged use of iron rod and the same was
    rejected by well-considered reasonings in Paras (193) to (209) and
    (413) to (422) and the said findings thereon supported by the
    opinion of the medical expert do not suffer from any error.
  26. The other contentions viz. (i) CCTV footage of Hotel Delhi
    Airport was not properly examined; (ii) the bus bearing registration
    No.DL-1PC-0149 was falsely implicated; (iii) PW-81-owner of the
    bus was in judicial custody for six months before his examination in
    the court and he was so detained in custody only to bring pressure
    upon him to depose in favour of the prosecution; and (iv) the
    petitioner-accused was photographed earlier and the same was
    shown to PW-1 to enable him to identify the petitioner-accused in
    the test identification parade. These contentions and other
    contentions assailing the case of the prosecution were all raised
    earlier and upon consideration of evidence, the same were rejected
    by this Court. The review petition is not for re-hearing of the appeal
    on reappreciation of the evidence over and over again. A party is
    17
    not entitled to seek review of the judgment merely for the purpose of
    rehearing of the appeal and a fresh decision.
  27. On the question of award of death sentence, the Court has
    considered the aggravating and mitigating circumstances. In Paras
    (322) to (368) and (511) to (518) of the judgment, while considering
    the question of death sentence, opportunity was granted to the
    petitioner accused and also other accused to file their affidavits as
    to their family background, criminal antecedents, possibility of
    reformation and such other relevant factors. The petitioner accused
    through his counsel, Mr. A.P. Singh has filed an affidavit stating his
    family background and stating that he has no criminal antecedent
    and that his case is not falling under “the rarest of rare cases” to
    affirm the death sentence, which contention was considered and
    rejected. The aggravating and mitigating circumstance and the
    affidavit filed by the petitioner was considered in detail in Para
    (324). The contention urged by the counsel for the parties and
    learned amicus curiae were considered in paras (327) to (368) and
    (511) to (518) of the judgment and the court observed that the
    background and family circumstances cannot be taken as the
    mitigating circumstances. Considering the manner in which the
    offence was committed, in the judgment dated 05.05.2017, this
    Court held that the case is falling within “the rarest of rare cases”.
    18
    We do not find that these findings suffer from any error apparent on
    the face of the record. The mitigating circumstances elaborated
    upon by the defence by way of highlighting the comparatively young
    age of the convicts, their socio-economic background, their
    unblemished antecedents and their chances of reformation, fade
    into insignificance. In light of the aggravating circumstances and
    considering that the case falls within the category of “rarest of rare
    cases”, the death penalty is confirmed.
  28. Insofar as the submission of learned counsel for the
    petitioner-accused that the death penalty has been abolished in UK
    and several other Latin American countries and Australian States,
    the same contentions were raised by Mr. A.P. Singh in the earlier
    review petitions and the same were dismissed. [vide Mukesh v.
    State (NCT of Delhi) (2018) 8 SCC 149 and Vinay Sharma and
    another v. State (NCT of Delhi) and others (2018) 8 SCC 186]
  29. Dismissal of the review petitions filed by the co-accused:
    The review petition filed by the co-accused were dismissed as
    having no merit, on 09.07.2018 Mukesh v. State (NCT of Delhi)
    (2018) 8 SCC 149. The court observed that the submissions urged
    by the other accused were already considered while delivering the
    19
    judgment and were rejected. The same points were earlier raised in
    the review petitions filed by other co-accused. The grounds raised in
    the present review petition are almost repetition of the arguments
    raised in the earlier review petitions which were rejected and in our
    view, cannot be raised repeatedly.
  30. We do not find any error apparent on the face of the record in
    the appreciation of evidence or the findings of the judgment dated
    05.05.2017. None of the grounds raised in the review petition call
    for review of the judgment dated 05.05.2017. The review petition is
    dismissed.
    ..……………………..J.
    [R. BANUMATHI]
    .………………………..J.
    [ASHOK BHUSHAN]
    ….……………………..J.
    [A. S. BOPANNA]
    New Delhi;
    December 18, 2019.
    20