MUKESH & ANR.versusSTATE FOR NCT OF DELHI & ORS.

                          [2017] 6 S.C.R. l



                        MUKESH & ANR.                                    A
                                  v.
               STATE FOR NCT OF DELHI & ORS.
              (Criminal Appeal Nos. 607-608 of 2017)
                           MAYOS,2017                                    B
               [DIPAK MISRA, R. BANUMATHI
                 AND ASHOK BHUSHAN, JJ.]
      Penal Code, 1860:
       ss.120B, 365/366, 307, 3 76(2)(g), 3 77, 302/1208, 395 -
 Conviction and death sentence - Nirbhaya case - Forcible sexual
                                                                         c
 intercourse with the prosecutrix, one after the other by six persons
and insertion of iron rod in her private parts and thereafter throwing
her out of moving bus along with informant - Prosecutrix '.s
alimentary canal from the level of duodenum upto 5 cm of anal
sphincter was completely damaged - It was beyond repair -                D
Septicemia was the direct result of multiple internal injuries - The
conduct of the accused in committing such heinous offences with
the prosecutrix in concert with each other and thereafter throwing
her out of the bus in an unconscious state alongwith PW-I
unequivocaly bring home the charge u/s.1208 in case of each of           E
them - The criminal acts done in furtherance of the conspiracy is
 evident from the acts and also the word.~ uttered during the
commission of the offence - Evidence on record lead to a singular
conclusion that the accused persons were guilty of criminal
conspiracy - RecovelJ' of articles belonging to the informant and
prosecutrix from the custody of the accused persons founded on           F
the disclosure statements of accused was relevant circumstance
against the appellants - The chain of events described by the
prosecutrix in her dying declarations coupled with the testimonies
of the other witnesses clearly established that as soon as the
informant and the prosecutrix boarded the bus, the accused persons
                                                                         G
formed an agreement to commit heinous offences against the victim
- No inte1j'erence with the concurrent findings of lower courts called
for - Evidence Act, 1872 - s.10 - Crime against women.
       s.1208 - Rationale behind- Held: Conspiracy is a clandestine
activity - Persons generally do not form illegal covenants openly -
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2            SUPREME COURT REPORTS                       [2017] 6 S.C.R.


A   In the interest of security, a person may carry out his part of a
    compiracy without even being informed of the identity of his co-
    conspirators - An agreement of this kind can rarely be shown by
    direct proof; it must be inferred ji-om the circumstantial evidence of
    co-operation between the accused - ft becomes clear that the
    prosecution must adduce evidence to prove that: the accused agreed
B
    to do or caused to be done an act; such an act was illegal or was to
    be done by illegal means within the meaning of !PC: irrespective of
    whether some overt act was done by one of the accused in pursuance
    of the agreement.
        s.30211208 - Conspiracy - In achieving the goal of the
c conspiracy, several offences committed by some of the conspirators
  may not be known to others, still all the accused will be held guilty
  of the offence of criminal conspiracy - Use of iron rod by one or
  more of the accused was sufficient to inculpate all the accused for
  the same - Gang rape and use of iron rod caused grave injuries to
D victims vagina and intestines: throwing her out of the bus in that
  vegetative state in chilled weather led to her death: all this taking
  place in the course of same transaction and with the active
  involvement of all the accused was sufficient evidence to find the
  accused guilty of criminal conspiracy - The findings of the courts
  below with regard to conviction of all the accused u/s.120-8 and
E s.302 rlw s.1208 is affirmed. (R. 8anumathi, J.)

         s.376(2)(g), Explanation l - Essential ingredients - Held: In
  order to establish an offence under s.376(2)(g) rlw Explanation l
  thereto, the prosecution must adduce evidence to indicate that more
  than one accused had acted in concert and in such an event, if
F rape is committed by even one, all the accused are guilty, irrespective
  of the fact that only one or more of them had actually committed the
  act - s.376(2)(g} rlw Explanation l thus embodies a principle of
  joint liability. (R. 8anumathi, J)
          Sentence/Sentencing:
G
          Death sentence - Mitigating and aggravating circumstances
    - Held: In the instant case, the mitigating factors highlighted by the
    appellants pertain to the strata to which these accused belong, the
    aged parents, marital status and the young children and the suffering
    they would go through and the calamities they would face in case
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                           3



of affirmation of sentence, their conduct while they are in custody          A
and the reformative path they have chosen and their transformation
and the possibility o.f reformation - The brutal, barbaric and diabolic
nature of the crime is evincible fi"om the acts committed by the
accused persons, viz., the assault on the informant with iron rod
and tearing off his clothes; assaulting the informantand the deceased        B
 with hands, kicks and iron rod and robbing them of their personal
 belongings like debit cards, ring, informant's shoes, etc.; attacking
 the deceased by forcibly disrobing her and committing violent sexual
 assault by all the appellants; their brutish behaviour in having anal
sex with the deceased and forcing her to pe1jorm oral sex; injuries
 on the body of the deceased by way of bite marks and insertion of           C
 rod in her private parts that, inter alia, caused pe1joration of her
 intestine which caused sepsis and, ultimately, led to her death - The
                                                                •
 accused persons had found an object for enjoyment in her and, as
 is evident, they were obsessed with the singular purpose sans any
feeling to ravish her as they liked, treat her as they felt and, the
                                                                             D
gross sadistic and beastly instinctual pleasures came to the forefi"ont
 when they, ajler ravishing he1; thought it to be just a matter of routine
 to throw her alongwith her friend out of the bus and crush them -
 The casual manner with which she was treated and the devilish
 manner in which they played with her identity and dignity is hwnan(F
 inconceivable - The appetite for sex, the hunger for violence, the          E
position of the empowered and the attitude of perversity are bound
 to shock the collective conscience which knows not what to do -
 The aggravating circumstances outweighed the mitigating
 circumstances brought on record - Therefore, the High Court
 correctly confirmed the death penalty - No inte1ference called for
- Crime against 1vomen.
       Death sentence - Rarest of rare cases - In the instant case,
gruesome offences were committed with highest viciousness -
Human lust was allowed to take such a demonic fonn - The accused
may not be hardened criminals; but the cruel manner in which the
gang-rape was committed in the moving bus; iron rod~ were inserted G             •
in the private parts of the victim; and the coldness with which both
the victims were thrown naked in cold winter night shocks the
collective conscience of the society - The instant case clearly comes
within the catego1y of 'rarest of rare case' where the question of
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4            SUPREME COURT REPORTS                        (2017] 6 S.C.R.


A   any other punishment is 'unquestionably foreclosed· - If the
    dreadfulness displayed by the accused in committing the gang-rape,
    unnatural sex, insertion of iron rod in the private parts of the victim
    does not fall in the 'rarest of rare categ01:v ', then one may wonder
    what else would fall in that category - Penal Code, I 860.
    (R. Banumathi, J.)
B
           Mitigating and aggravating circumstances - Question of
    awarding sentence is a matter of discretion and has to be exercised
    on consideration of circumstances aggravating or mitigating in the
    individual cases - Protection of society and deterring the criminal
    is the avowed object of law - While determining sentence in heinous
c   crimes, courts ought to weigh its impact on the society and impose
    adequate sentence considering the collective conscience or society:~
    c1y for justice - While considering the imposition of appropriate
    punishment, courts should not only keep in vie1v the rights of the
    criminal but also the rights of the victim and the society at large.
D   (R. Banumathi, J.)
          Delay/Laches - Delay in registration of FIR - Effect on
    prosecution case - Held: Delay in setting the law into motion by
    lodging of complaint in court or FIR at police station is normally
    viewed by courts with suspicion because there is possibility of
E   concoction of evidence against an accused - Therefore, it becomes
    necessary for the prosecution to satisfactorily explain the delay -
    In the instant case, the victim was seriously injured and giving
    medical treatment to her was of prime importance - PW-1 himself
    was injured and was admitted to hospital and, therefore, no delay
    can be said to have been caused in registering the FIR.
F
         FIR - Non-mentioning of assailants in FIR - Effect on
  prosecution case - Held: It is settled law that FIR is not an
  encyclopedia of facts and it is not expected ji-om a victim to give
  details of the incident either in the FIR or in the brief hist01y given
  to the doctors - It may be suj)lcient if the broad facts of the
G prosecution case alone appear - It cannot be said that merely
  because the names of the accused persons were not mentioned in
  the FIR, it raises serious doubts about the prosecution case in the
  light of injuries on PW-I '.I· person and the gruesome acts against
  the victim must have put him in a traumatic condition and it would
H not have been possible for him to recall and narrate the entire
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                        5


incident to the police at one instance.                                   A
      Evidence:
       Related witness, testimony of - Evidentiary value - Held: The
evidence of a witness is not to be disbelieved simply because he is a
partisan witness or related to the prosecution - It is to be weighed
whether he was present or not and whether he is telling the truth or      B
not - In the instant case, when informant-PW-I was first examined,
his friend (the prosecutrix) was critically injured and he was in a
shockea mental condition - PW-1, in his deposition, clearly spoke
about the occurrence and also corroborated his complaint - The
evidence of PW-1 was unimpeachable in character and the roving            c
cross-examination did not erode his credibility - The injuries found
on the person of PW-I lent assurance to his testimony that he was
present at the time of the occurrence along with the prosecutrix.
       Testimony ofprime witness - Allegation that testimony of PW-
! was not trustworthy as it was not believable that he did not try to D
resist the assailants - Held: The accused persons were in group
and were also armed with iron rods - PW-1 was held by them - It
would not have been possible for PW-1 to resist the number of'
accused persons and save the prosecutrix - The evidence of PW-I
cannot he doubted on the ground that he had not inte1fered with
the occurrence - The FIR, supplementary statements recorded under E
s.164, CrPC and the evidence in court show that there was no
justification or warrant to treat the version of the witness as
inconsistent - The testimony of PW-I was placed reliance upon by
both the courts and there is no reason to differ with the said view.
      Testimony of injured witness - Evidentimy value of- Held:           F
Evidence of injured witness is entitled to greater weight and the
testimony of such a witness is considered to be beyond reproach
and reliable.
       Scientific evidence - DNA - Evidentim:i1 value of- Held: DNA
report deserves to be accepted unless it is absolutely dented and         G
for non-acceptance of the same, it is to be established that there
had been no quality control or quality assurance - If the sampling
 is proper and if' there is no evidence as to tampering of samples, the
 DNA test report is to be accepted - Forensic science.
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6            SUPREME COURT REPORTS                          [2017) 6 S.C.R.



A          Scientific evidence - Odontology - ft is a branch of forensic
    science in which dental knowledge Is applied to assist the criminal
    justice delivery system - In the instant case, the prosecution relied
    upon the odontology report, i.e., bite mark analysis report linking
    A-1 and A-3 with the crime in question.
B          Evidence of rape victim - Reliability of - Held: Conviction
    can be based on the sole testimony of the prosecutrix if it is implicitly
    reliable and there is a ring of truth in it - Corroboration as a
    condition for judicial reliance on the testimony of a prosecutrix is
    not requirement of law but a guidance of prudence under given
    circumstances - Courts are expected to act with sensitivity and
c   appreciate the evidence of the prosecutrix in the background of the
    entire facts of the case and not in isolation - In the facts and
    circumstances of the instant case as the statements of the prosecutrix
    in the form of three dying declarations were consistent with each
    other and there were no material contradiction, they can be
D   completely relied upon without corroboration - The victim also wrote
    the names of the accused persons in her own hand-writing in the
    dying declaration recorded by Metropolitan Magistrate - All the
    three dying declarations were consistent, true and voluntary,
    satisfying the test of probabilities factor - That apart, the dying
    declarations were well-corroborated by medical and scientific
E   evidence and by the testimony of eye witness-PW-I.
    (R. Banumathi, J.)
          Dying declaration - Nod~ and gestures - Held: A dying
    declaration need not necessarily be by words or in writing - It can
    be by gesture or by nod - Dying declaration made through signs,
F   gesture or by nods is admissible as evidence, ifproper care is taken
    at the time of recording the statement - The only caution the court
    ought to take is to ensure that the person recording the dying
    declaration was able to correctly notice and inte1pret the gestures
    or nods of the declarant - Evidence Act, 1872 - s.32.
G          Videography of the dying declaration - Held: Videography
    of the dying declaration is only a measure of caution and in case it
    is not taken care of; the efject of it would not be fatal for the case
    and does not, in any circumstance, compel the court to completely
    discard that particular dying declaration - Therefore, the contention
H   that the third dying declaration made through gestures lacks
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                       7


credibility and that the same ought to have been videographed is       A
totally sans substance - Dying declaration.
      Multiple Dying Declarations - In cases where there are more
than one dying declarations, the Court should consider whether
they are consistent with each other - {f there are inconsistencies,
the nature of the inconsistencies must be examined as to whether B
they are material or not - In cases where there are more than one
dying declaration, it is the duty of the Court to consider each one
of them and satisfy itself as to the voluntariness and reliability of
the declarations - Mere fact of recording multiple dying declarations
does not take away the importance of each individual declaration
- Court has to examine the contents of dying declaration in the c
light of various surrounding facts and circumstances.
(R. Banumathi, J.)
      Evidence Act, 1872:
       ss.25, 26, 27 -Admissibility of a confessional statement made D
to a police officer - Scope of - Held: ss.25 and 26 of the Evidenc.e
Act put a complete bar on the admissibility ofa confessional statement
made to a police officer or a confession made in absentia of a
Magistrate, while in custody- s.27 of the Evidence Act is by way of
a proviso to ss.25 and 26 and a statement even by way of confession
made in police custody which distinctly relates to the fact discovered E
is admissible in evidence against the accused - s.27 is based on
the view that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the
information is true and is a relevant fact and accordingly it can be
safely allowed to be given in evidence. (R. Banumathi, J.)               F
       s.27 - Essential conditions to be satisfied u/s.27 - Held: s.27
prescribes two limitations for determining how much of the
information received from the accused can be proved against him:
 The information must be such as the accused has caused discovely
of the fact, i.e. the fact must be the consequence, and the information G
the cause of its discovery; and the information must 'relate distinctly'
to the fact discovered - Both the conditions must be satisfied - The
 recove1y made u/s.27 not only acts as the foundation stone for
proceeding with an investigation, but also completes the chain of
 circumstances - Once the recovery is proved by the prosecution,
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8            SUPREME COURT REPORTS                        [2017] 6 S.C.R.



A   burden of proof on the defence to rebut the same is very strict,
    which cannot be discharged merely by pointing at procedural
    irregularities in making the recoveries, especia!!y when the recove1y
    is corroborated by direct as well as circumstantial evidence,
    especially when the investigating ojjicer assures that failure in
    examining independent witness while making the recoveries was
B
    not a deliberate or ma/a fide, rather it was on account of exceptional
    circumstances attending the investigation process. (R. Banumathi, J.)
         Examination of independent witnesses, while making
  recoveries pursuant to the disclosure statement of the accused -
  Held: It is a rule of caution evolved by the Judiciaty, which aims at
c protecting the right of the accused by ensuring tramparency and
  credibility in the investigation of a criminal case - In the instant
  case, PW-80 SI has deposed in her cross-examination that no
  independent person had agreed to become a ivitness and i11 the
  light of such a statement, there ivas no reason for the courts to
D doubt the version of the police and the recoveries made - When
  recovery is made pursuant to the statement of accused, seizure memo
  prepared by the Investigating Ojjicer need not mandatori!y be
  attested by independent witnesses - Thus, recoveries made pursuant
  to disclosure statement of the accused are duly pro Fed by the
  prosecution and there is no substantial reason to discard the same
E - Recovery of articles of PW-I and also that of victim at the instance
  of the accused is a strong incriminating evide11ce against accused,
  especially when no plausible explanation is forthcoming fi"om the
  accused- Further, the scientific examination ofthe articles recovered
  completely place them in line with the chain of events described by
F the prosecution. (R. Banumathi, J.)
          Criminal Law:
          Plea of alibi - Burden lies upon the accused persons to
    establish the plea convincingly by adducing cogent evidence.
G          Conspiracy - In a criminal conspiracy, meeting of minds of
    two or more persons for doing an illegal act is the sine qua non but
    proving this by direct proof is not possible - Hence, conspiracy
    and its objective can be inferred from the surrounding circumstances
    and the conduct of the accused - Moreove1; conspiracy being d
    continuing offence continues to subsist till it is executed or rescinded
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                     9


or ji-ustrated by the choice of necessity.                            A
      Crime Against Women:
       Awareness of public on gender justice - Duty of parents,
school teachers, government institutions, media and society at large
- Suggestions made - Gender equality to be made a part of the
school curriculum - A child should be taught to respect women in B
the society in the same way as he is taught to respect men - The
school teachers and parents should be trained, not only to conduct
regular personality building and skill enhancing exercise, but also
to keep a watch on the actual behavioural pattern of the children
so as to make them gender sensitized - The educational institutions, c
Government institutions, the employers and all concerned must take
steps to create awareness with regard to gender ·Sensitization and to
respect women - Sensitization of the public on gender justice through
TV, media and press should be welcomed - Banners and placards
in the public transport vehicles like autos, taxis and buses etc. must
be ensured - Use of street lights, illuminated bus stops and extra D
police patrol during odd hours must be ensured - Police/security
guards must be posted at dark and lonely places like parks, streets
etc. - Mobile apps for immediate assistance of women should be
introduced and effectively maintained - Apart from effective
 implementation of the various legislation protecting women, change E
 in the mind set of the society at large and creating awareness in the
public on gender justice, would go a long way to combat violence
 against women. (R. Banumathi, J.)
      Rape - Duty of court in appreciation of evidence while dealing
with cases of rape - While dealing with cases of rape, the Court F
must act with utmost sensitivity and appreciate the evidence of
prosecutrix, and it should not be swayed by minor contradictions
and discrepancies in appreciation of evidence of the witnesses ivhich
are not of a substantial character - Courts should not attach undue
importance to discrepancies where the contradictions sought to be
brought up from the evidence of prosecutrix are immaterial and of G
no consequences. (R. Banumathi, J.)
      Code of Criminal Procedure, 1973 - s.235(2) - Scope of-
Held: s.235(2) is intended to give an opportunity of hearing to the
prosecution as well as the accused on the question of sentence - To
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10            SUPREME COURT REPORTS                       [2017] 6 S.C.R.


A    afford an effective opportunity to the accused, the Court must hear
     on the question of sentence to know about age of the accused,
     background of the accused, prior criminal antecedents, if any,
     possibility of reformation, if any; and such other relevant factors - •
     The Court while awarding the sentence has to take into consideration
     various factors having a bearing on the question of sentence - In
B
     case, s.235(2) is not complied with, the appellate Court can either
     send back the case to the Sessions Court for complying with s.235(2)
     so as to enable the accused to adduce materials; 01; in order to
     avoid delay, the appellate Court may by itself give an opportunity
     to the parties in terms of s.235(2) to produce the materials they
c    wish to adduce instead of sending the matter back to the trial Court
     for hearing on sentence - In the present case, the latter course is
     adopted - Sentence/Sentencing. (R. Banumathi, J)
           Dismissing the appeals, the Court
           HELD:
D
           PER DIPAK MISRA, J. (For himself andAshok Bhushan, .J.)
           I. Delayed registration of FIR:
         Delay in setting the law into motion by lodging of complaint
  in court or FIR at police station is normally viewed by courts
E with suspicion because there is possibility of concoction of
  evidence against an accused. Therefore, it becomes necessary
  ·for the prosecution to satisfactorily explain the delay. Whether
  the delay is so long as to throw a cloud of suspicion on the case of
  the prosecution would depend upon a variety of factors. Even a
F long delay can be condoned if the informant has no motive for
   implicating the accused. Jn the present case, after the occurrence,
  the prosecutrix and PW-I were admitted to the hospital at 11:05
  p.m.; the victiin was admitted in the Gynaecology Ward and PW-
   I, the informant, in the casualty ward. After PW-I and the
  prosecutrix were taken to the hospital for treatment, the
G statement of PW-I was recorded by PW-74, SI at 1:37 a.m. and
  the same was handed over to PW- 65, Constable to PW-57. Jn
  the initial stages, the intention of all concerned must have been
  to save the victim by giving her proper medical treatment. Delay,
  if any was in consonance with natural human conduct. There was
   no delay in the registration of FIR. The sequence of events were
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                       11



natural. [Paras 49-511[87-D-H]                                          A
      Ram Jag and others v. State of U.P (1974) 4 SCC 201
      : AIR 1974 SC 606: [1974] 3 SCR 9; State of Himachal
      Pradesh v. Rakesh Kumar [2009] 8 SCR 264 : (2009)
      6 sec 308 - relied on.
      2. Non-mentioning of assailants in the FIR:                       B

       It is settled law that FIR is not an encyclopedia of facts and
it is not expected from a victim to give details of the incident
either in the FIR or in the brief history given to the doctors. It
may be sufficient if the broad facts of the prosecution case alone
appear. If any overt act is attributed to a particular accused among    C
the assailants, it must be given greater assurance. Therefore,
omission in the first statement of the informant is not fatal to the
case. The impact of the omission has to be adjudged in the totality
of the circumstances and the veracity of the evidence. The
involvement of the accused persons cannot be determined solely          D
on the basis of what has been mentioned in the FIR. In his
statement recorded in the early hours of 17.12.2012, PW-1 stated
about going to the Select City Walk Mall, Saket alongwith the
prosecutrix and boarding the bus. He has also stated about the
presence of four persons sitting in the cabin of the bus and two
boys sitting behind the cabin and clearly stated about the overt        E
act. He broadly made reference to the accused persons and also
to the overt acts. There are no indications of fabrication in his
statement. Both the injuries on PW-1 's person and the gruesome
acts against the victim must have put him in a traumatic condition
and it would not have been possible for him to recall and narrate       F
the entire incident to the police at one instance. It cannot be
said that merely because the names of the accused persons were
not mentioned in the FIR, it raises serious doubts about the
prosecution case. [Paras 55, 60-62][89-C-D; 91-C, D-G]
      Rattan Singh v. State of H.P [1996] 9 Suppl. SCR 938              G
      : (1997) 4 sec 161; Pedda Narayana V. State of A.P
      [1975] Suppl. SCR 84 : (1975) 4 SCC 153; Sane Lal v.
      State of U.P. (1978) 4 SCC 302; Gurnam Kaur v.
      Bakshish Singh (1980) Suppl. SCC 567; State of Uttar
      Pradesh v. Naresh and others [2011] 4 SCR 1176 :
                                                                        H
12           SUPREME COURT REPORTS                      [2017] 6 S.C.R.


A         (2011) 4 sec 324; Rotash V. State of Rajasthan [2006]
          10 Suppl. SCR 264 : (2006) 12 SCC 64; Ranjit Singh
          v. State of MP [2010) 14 SCR 133 : (2011) 4 SCC
          336; Animireddy Venkata Ramana v. Public Prosecutor
          (2008] 3 SCR 1078 : (2008) 5 SCC 368 - relied on.
B          3. Appreciation of the evidence of PW-1:
            3.1 The contentions assailing the evidence of PW-I does
     not merit acceptance, for at the time when he was first examined
     his friend (the prosecutrix) was critically injured and he was in a
     shocked mental condition. The evidence of a witness is not to
c    be disbelieved simply because he is a partisan witness or related
     to the prosecution. It is to be weighed whether he was present
     or not and whether he is telling the truth or not. The informant,
     PW-1, in his deposition, clearly spoke about the occurrence and
     also corroborated his complaint. The evidence of PW-1 was
     unimpeachable in character and the roving cross-examination did
D    not erode his credibility. The injuries found on the person of
     PW-1 lent assurance to his testimony that he was present at the
     time of the occurrence along with the prosecutrix. The evidence
     of an injured witness is entitled to a greater weight and the
     testimony of such a witness is considered to be beyond reproach
E    and reliable. [Paras 77-79)[98-G-H; 99-A-B, DJ
           Dalip Singh v. State of Punjab AIR 1953 SC 364 :
           (1954) SCR 145; State of Punjab v. Jagir Singh, Baljit
           Singh and Karam Singh [1974] 1 SCR 328 : (1974) 3
           sec 277; Lehna V. State of Haryana [2002] 1 SCR
F          377 : (2002) 3 SCC 76; Gangadhar Behera and others
           v. State of Orissa [2002] 3 Suppl. SCR 183 : (2002) 8
           SCC 381; State of Rajasthan v. Kalki and another [1981]
           3 SCR 504 : (1981) 2 SCC 752; Inder Singh and
           another v. State (Delhi Administration) [1978] 3
           SCR 393 : (1978) 4 SCC 161; Mano Dutt and another
G          v. State of Uttar Pradesh [2012) 3 SCR 686 : (2012) 4
           SCC 79; State Represented by Inspector of Police v.
           Saravanan & another (2008) 17 SCC 587 : AIR 2009
           SC 152 : [2008] 14 SCR 405; Arumugam v. State
           Represented by Inspector of Police, Tamil Nadu (2008)
H          15 sec 590 : AIR 2009 SC 331 : (2008] 14 SCR 309;
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                    13



     Mahendra Pratap Singh v. State of Uttar Pradesh [2009)          A
     2 SCR 1033 : (2009) 11 SCC 334; Sunil Kumar
     Sambhudayal Gupta (Dr.) and others v. State of
     Maharashtra [2010) 15 SCR 452 : (2010) 13 SCC 657
     : JT 2010 (12) SC 287 - referred to.
      3.2 It is no doubt true that in the earlier statement of PW-   B
1, there were certain omissions; but the ml!in thing to be seen is
whether the omissions go to the root of the matter or pertain to
insignificant aspects. The prosecutrix and PW-1 were surrounded
and attacked by at least six accused persons. As narrated by PW-
1, he was pinned down by two of the assailants while the others
committed rape on the prosecutrix on the rear side of the bus.       c
The accused persons were in a group and were also armed with
iron rods. PW-1 was held by them. It would not have been possible
for PW-1 to resist the number of accused persons and save the
prosecutrix. The evidence of PW-1 cannot be doubted on the
ground that he had not interfered with the occurrence. The           D
improvements made in the supplementary statement need not
necessarily render PW-1 's evidence untrustworthy more so when
PW-1 had no reason to falsely implicate the accused. The FIR,
supplementary statements recorded under Section 164 CrPC and
the evidence in court show that there was no justification or
warrant to treat the version of the witness as inconsistent. The     E
testimony of PW-1 was placed reliance upon by both the Courts
and there is no reason to differ with the said view. The
contradictions in his first statement, were not material enough to
destroy the substratum of the prosecution case. [Paras 90, 92,
93, 95 and 96][105-E, G-H; 106-A-B, C-D; 108-A, B-C]                 F
      Pudhu Raja and another v. State Represented by
      Inspector of Police [2012] 8 SCR 740 : (2012) 11 SCC
      196; Jaswant Singh v. State of Hmyana [2000] 2 SCR
      903 : (2000) 4 SCC 484; Akhtar and others v. State of
      Uttaranchal [2009] 5 SCR 771 : (2009) 13 SCC 722;              G
      State of U.P V. M.K. Anthony (1985) 1 sec 505;
      Harijana Thirupala v. Public Prosecut01~ High Court
      of A.P. [2002] 1 Suppl. SCR 379 : (2002) 6 SCC 470;
      Ugar Ahir v. State of Bihar AIR 1965 SC 277; Krishna
      Machi v. State of Bihar [2002] 3 SCR 1 : (2002) 6 SCC
                                                                     H
14           SUPREME COURT REPORTS                      [2017] 6 S.C.R.


A          81; State of U.P v. Anil Singh [1988] Suppl. SCR 611:
           (1988) Supp. sec 686; Mohan Singh and another V.
           State of MP (1999] 1 SCR 276 : (1999) 2 SCC 428 -
           referred to.
           4. Recovery of the bus and the CCTV footage:
B          The endeavour of the prosecution was to first check the
     route and get a clue of the bus. Once it is proved before the
     court through the testimony of the experts that the photographs
     and the CCTV footage are not tampered with, there is no reason
     or justification to perceive the same with the lens of doubt. The
c    opinion of the CFSL expert contained in the CFSL report
     authenticates that there was no tampering or editing in both the
     exhibits and that a bus having identical patterns as the one parked
     at 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. The contents
D    of the report is also admitted to be true by its author, PW-76. The
     High Court, in order to satisfy itself, had got the CCTV footage
     played during the hearing and found the same to be creditworthy
     and acceptable. A bald allegation was made that the bus, Ex P-1,
     was falsely implicated and that all the DNA evidence recovered
E    therefrom was actually planted and that the bus, Ex. P-1, was
     sent to Thyagraj Stadium instead of the concerned Police Station
     with the deliberate intention of avoiding the media attention so
     that the evidence could be planted easily. There is dearth of space
     inside the police stations in Delhi and the use of Thyagraj Stadium
     as parking lot in the instant case does not necessarily mean that
F    there was any ma/a fide intention on the part of the investigating
     agency without any specific assertion to advance the said bald
     allegation. [Paras 97, 100, 103 and 104][108-D; 110-B-D; 111-F;
     112-B]
           Manjit Singh v. State 214 (2014) DLT 646 - referred to.
G
          5. Reliability of the testimony of PW-81 (the owner of the
     bus Ex. P-1):
           PW-81 is a transporter and owns 8 to 10 buses including
     Ex. P-1. He runs the buses under the name 'Yadav Travels'. He
H    was examined by the prosecution to prove that A-1, A-2 and A-3
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                      15



were connected with the bus, Ex. P-1. The appellant has asserted       A
that PW-81 was kept in judicial custody to obtain a statement
favourable to the prosecution in the present case. It is limpid
from the deposition of PW-81 that he was in judicial custody for a
separate offence and, therefore, the argument that he was under
pressure to support the version of the prosecution is not              B
sustainable. There is no trace of doubt that the testimony of the
said witness withstands close scrutiny and there is no reason to
treat it with any kind of disapproval. [Paras 107, 108 and 111][112-
G-H; 113-C, P; 114-F-G]
     6. Personal search and statements of disclosure leading to
recovery:                                                              c
      As the evidence brought on record would show, the accused
persons were known to each other. A-2, and deceased A-1 were
brothers. According to the testimony of PW-81, A-1 was the
driver of the bus and A-3 was working as a helper in the bus.
The same is manifest from the Attendance Register. The                 D
recoveries made when the accused persons were in custody were
established with certainty. The witnesses who deposed with
regard to the recoveries remained absolutely unshaken and, in
fact, nothing was elicited from them to disprove their
creditworthiness. A scrutiny of the arrest memo, statements            E
recorded under Section 27 and the disclosure made in pursuance
thereof showed that the recoveries of articles belonging to the
informant and the victim from the custody of the accused persons
cannot be discarded. The recovery is founded on the statements
of disclosure. The items that were seized and the places from
where they were seized were within the special knowledge of the        F
accused persons. No explanation came on record from the
accused persons as to how they had got into possession of the
said articles. [Paras 124, 135 and 136)(118-C-D; 127-A-B, E)
      Pulukuri Kottaya v. Emperor AIR 1947 PC 67; Delhi
      Administration v. Bal Krishan and others (1972) 4 SCC            G
      659; Mohd. lnayatullah v. State of Maharashtra [1976)
      1 SCR 715 : (1976) 1 sec 828; Anter Singh V. State
      of Rajasthan [2004) 2 SCR 123 : (2004) 10 SCC 657;
      State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru
      [2005] 2 Suppl. SCR 79 : (2005) 11 SCC 600; State                H
16           SUPREME COURT REPORTS                      [2017] 6 S.C.R.


A         Govt. of NCT of Delhi v. Sunil and another [2000) 5
          Suppl. SCR 144 : (2001) 1 SCC 652; Sunil Clifford
          Daniel v. State of Punjab [2012) 7 SCR 1100 : (2012)
          11 SCC 205; Ashok Kumar Chaudhary and others v.
          State of Bihar [20081 7 SCR 714: (2008) 12 SCC 173;
          Pramod Kumar v. State (Government of NCT of Delhi)
B
          [2013] 8 SCR 323 : (2013) 6 SCC 588 - referred to.
          7. Test Identification Parade and the identification in Court:
           In the case at hand, the informant, apart from identifying
     the accused in the TIP, also identified all of them in Court. A
c    careful scrutiny of the evidence on record showed that it deserved
     acceptance. Therefore, TIP was not dented. [Para 145)(130-C-
     D]
          Matru alias Girish Chandra v. State of Uttar Pradesh
          [1971] 3 SCR 914 : (1971) 2 SCC 75; Santokh Singh
D         v. lzhar Hussain and another [1974] I SCR 78 : (1973)
          2 SCC 406; Malkhansingh v. State of M.P [2003) 1
          Suppl. SCR 443 : (2003) 5 SCC 746; Visveswaran v.
          State represented by S.D.M [2003] 3 SCR 978 : (2003)
          6 sec 73; Sidhartha Vashisht alias Manu Sharma V.
          State (NCT of Delhi) [2010] 4 SCR 103 : (2010) 6 SCC
E         I; Munshi Singh Gautam v. State of MP. [2004] 5 Suppl.
          SCR 1092 : (2005) 9 SCC 631; Harbhajan Singh v.
          State of J & K (1975) 4 SC 480 - relied on.
           8. Admissibility and acceptability of the dying declaration
     of the prosecutrix:
F
           8.1 As soon as the prosecutrix was brought to the hospital,
     she gave a brief description of the incident to PW-49. In the first
     dying declaration made to the doctor PW-49 recorded and in
     MLC, due to her medical condition, though the prosecutrix
     broadly described the incident of gang rape committed on her
G    and injuries caused to her and PW-1, yet she failed to vividly
     describe the incident of inserting iron rod, etc. As it appears
     from the record, the prosecutrix had lost sufficient quantity of
     blood due to which she was drowsy and could only give a brief
     account of the incident and injuries caused to her and the
H    informant. Even though the prosecutrix has given only a brief
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                     17



account of the occurrence, yet she was responding to verbal           A
command and hence, the same is natural and trustworthy and
furthermore, her first statement was also consistent with the
other dying declarations. By virtue of the second dying declaration
recorded by the SDM, the exact details of the incident and the
injuries caused to the prosecutrix were put on record. The SDM
                                                                      B
satisfied herself that the prosecutrix was fit to make the
statement. While recording the dying declaration of the
prosecutrix, PW-52, had found her conscious, oriented and
meaningfully communicative. It was only thereafter that PW-27,
SDM, recorded her statement. The prosecutrix not only signed
it but even wrote the date and time in this statement. She narrated   c
the entire incident specifying the role of each accused. [Paras
167, 168)[140-D-G]
       8.2 Again on 25.12.2012 on an application though the doctor
PW-52, opined that the prosecutrix was unable to speak as she
was having endotracheal tube, i.e, in larynx and trachea and was · D
on ventilator, yet PW-28, declared her to be conscious, oriented
and meaningfully communicative through non-verbal gestures and
fit to give statement. PW-30 Metropolitan Magistrate, also
satisfied himself qua fitness and ability of the prosecutrix to give
rational answers by gestures to his multiple choice questions.
The opinion of the doctors obtained prior to recording of the E
statements as also the observations made by the SDM and
Metropolitan Magistrate qua her fitness cannot be disregarded
completely on the basis of surmises of the appellants. [Para
1701[14 t-E-G]
       8.3 In the third dying declaration, PW-30, after recording F
the statement of the prosecutrix signed the document. The date
mentioned therein was overwritten as 25.12.2012. However, in
the forwarding note to the investigating officer which was in
continuation of the prosecutrix's statement, the signature and
date mentioned by PW-30 was very clear and no overwriting was         G
visible. PW-30 was never cross-examined on the aspect of
overwriting of the date. The issue was raised for the first time
before this court merely to substantiate his suspicion of
manipulation on the part of the prosecution. Pointing at
insignificant errors is inconsequential so far as cogent evidence
                                                                      H
18           SUPREME COURT REPORTS                     [2017] 6 S.C.R.


A produced by the prosecution stand on a terra firma. It is beyond
  human prudence to discard the detailed and well signed
  statements of the prosecutrix, in spite of clear date put by herself,
  merely because PW-30 erred at one point of time in correctly
  recording the date. Moreover, the testimony of PW-52, the doctor
  who was incharge of the ICU and in whose supervision the entire
B
  treatment and recording of statements by the prosecutrix was
  done, cannot be discarded on account of meagre technical errors.
  [Para 171][141-H; 142-A-D]
         8.4 A dying declaration is an important piece of evidence
  which, if found veracious and voluntary by the court, could be the
c sole basis for conviction. If a dying declaration is found to be
  voluntary and made in fit mental condition, it can be relied upon
  even without any corroboration. However, the court, while
  admitting a dying declaration, must be vigilant towards the need
  for 'Compos Mentis Certificate' from a doctor as well as the
D absence of any kind of tutoring. In a case where there are more
  than one dying declaration, if some inconsistencies are noticed
  between one and the other, the court has to examine the nature
  of inconsistencies as to whether they arc material or not. The
  court has to examine the contents of the dying declarations in
  the light of the various surrounding facts and circumstances. In
E the case at hand, the first statement of the prosecutrix was
  recorded by PW-49 on the night of 16.12.2012 and the second
  statement was recorded by the SDM on 21.12.2012 after a delay
  of five days. In the facts and circumstances of the case, there was
  no inconsistency in the dying declarations to raise suspicion as
F to the genuinity and voluntariness of the subsequent dying
  declarations. The prosecutrix was under constant medical
  attention and was reported to be fit for giving a statement on
  21.12.2012 only. On the night of the incident itself, she underwent
  first surgery and was shifted to ICU. The second surgery was
  performed on her on 19.12.2012. OT notes showed that she was
G put on ventilation after the surgery. Therefore, a mere omission
  on the part of the prosecutrix to state the entire factual details of
  the incident in her very first statement does not make her
  subsequent statements unworthy, especially when her statements
  arc duly corroborated by other prosecution witnesses including
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                      19



the medical evidence. The contention that no dying declaration         A
could have been recorded on 21.12.2012 as the prosecutrix was
administered morphine does not hold good as doctor-PW-52
deposed that morphine was injected at 6:00 p.m. on 20.12.2012
and its effect would have lasted for only 3-4 hours. PW-52 denied
that the prosecutrix was unconscious and had difficulty in breathing   B
at the time when she made the statement to PW-27, SDM, on
21.12.2012. [Paras 173, 175, 180 and 181)[142-G-H; 143-A; 144-
G-H; 145-A; 148-B-G]
      Laxman v. State of Maharashtra (2002) 6 SCC 710;
      Atbir v. Government of NCT of Delhi [2010] 9 SCR
      993 : (2010) 9 SCC 1; Paniben v. State of Gujarat                c
      [1992) 2 SCR 197 : (1992) 2 SCC 474; Panneerselvam
      v. State of Tamil Nadu [2008] 8 SCR 962 : (2008) 17
      SCC 190; Shudhakar v. State of Madhya Pradesh
      [2012] 7 SCR 128 : (2012) 7 SCC 569; Chirra Shivraj
      v. State of Andhra Pradesh [2010] 15 SCR 673 : (2010)            D
      14 sec 444; Sandeep and another V. State of Hmyana
      [2015] 2 SCR 1999 : (2015) 11 SCC 154; Babula/ and
      others v. State of MP [2003] 5 Suppl. SCR 54 : (2003)
      12 SCC 490; Prakash and another v. State of Madhya
      Pradesh (1992) 4 sec 225; Vi.Jay Pal V. State
      (Government of NCT of Delhi [2015] 3 SCR 394 : (2015)            E
      4 SCC 749; Meesa/a Ramakrishan v. State of A.P
      (1994) 4 SCC 182; B. Shashikala v. State of A.P [2004]
      1 SCR 940 : (2004) 13 SCC 249 - relied on
      8.5 Yet another objection raised for the appellants
concerning the medical fitness of the prosecutrix, while recording     F
the third dying declaration was that when PW-30, Metropolitan
Magistrate, recorded the dying declaration of the prosecutrix,
she was not in a position to speak as per the endorsement made
by PW-52, and, therefore, no weight could be attached to the
dying declaration recorded by PW-30. This contention was raised        G
before the High Court as well as the trial court. On 25.12.2012
at 12:35 p.m., PW-52 (doctor) had endorsed on the document
that the victim could not speak as she had endotracheal tube in
place (that is, in larynx and trachea) and was on ventilator.
However, at 12:40 p.m. on the same day, doctor-PW-28, had
                                                                       H
20           SUPREME COURT REPORTS                       [2017] 6 S.C.R.



A    endorsed on the said document to the effect that the victim was
     conscious, cooperative, meaningfully communicative, oriented,
     responding through non-verbal gestures and fit to give statement.
     PW-52 clearly deposed in his cross-examination that he had never
     endorsed that the victim was unfit to give statement at 12:35
     p.m., rather he had said that she was on ventilator and hence,
B
     could not speak. The said explanation of PW-52, who was in charge
     of the ICU in Safdarjung Hospital at the relevant time made it
     limpid that even though the prosecutrix was not able to speak,
     yet she was conscious and oriented and was in a position to make
     the statement by gestures. [Paras 182, 183 and 18411148-G-H;
c    149-A-B, D-E, G-H; 150-A-B)
            8.6 The contention that the third dying declaration made
     through gestures lacks credibility and that the same ought to
     have been videographed is totally sans substance. The dying
     declaration recorded on the basis of nods and gestures is not
D    only admissible but also possesses evidentiary value, the extent
     of which shall depend upon who recorded the statement. In the
     instant case, the dying declaration was recorded by PW-30,
     Metropolitan Magistrate. A perusal of the questions and the
     simple answers by way of multiple choice put to the prosecutrix
     is manifest of the fact that those questions and answers were
E    absolutely simple, effective and indispensable. The dying
     declaration recorded by PW-30 though by nods and gestures and
     writings, inspires confidence and was rightly relied upon by the
     trial Court as well as the High Court. Videography of the dying
     declaration is only a measure of caution and in case it is not taken
F    care of, the effect of it would not be fatal for the case and does
     not, in any circumstance, compel the court to completely discard
     that particular dying declaration. [Para 1851[150-B-E]
        8.7 The dying declaration made through signs, gestures or
  by nods are admissible as evidence, if proper care was taken at
G the time of recording the statement. The only caution the court
  ought to take is that the person recording the dying declaration
  is able to notice correctly as to what the declarant means by
  answering by gestures or nods. In the present case, this caution
  was aptly taken, as the person who recorded the prosecutrix's
  dying declaration was the Metropolitan Magistrate and he was
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                       21



satisfied himself as regards the mental alertness and fitness of A
the prosecutrix, and recorded the dying declaration of the
prosecutrix by noticing her gestures and by her own writings. In
the facts and circumstances of this case and upon appreciation of
the evidence and the material on record, all the three dying
declarations were consistent with each other and well corroborated
                                                                   B
with other evidence and the trial court as well as the High Court
has correctly placed reliance upon the dying declarations of the
prosecutrix to record the conviction. [Paras 188, 189)(151-C-F]
      9. Insertion of the iron rod:
       9.1 The defence countered the prosecution case on the            c
use of iron rods. It was contended that as recorded by PW-49 in
first statement, the prosecutrix was in a fit state of mind for she
even gave her residential address after undergoing the traumatic
experience, but she failed to mention that the accused persons
also used the iron rods on her, a fact that would have had a bearing
on her treatment. The said proponement is not sustainable as            D
MLC, Ex.PW 49/ A, of the prosecutrix suggested that she was
brought to the hospital in a traumatized state with grievous injuries
and she was cold and clammy, i.e., whitish (due to
vasoconstriction) and had lost a lot of blood. As per Ex.PW-49/ A,
the prosecutrix was sure of intercourse to have been committed          E
twice along with rectal penetration whereafter she did not
remember intercourse. She was oscillating between
consciousness and unconsciousness at the time of the incident
and there was loss of lot of blood by the time she had reached the
hospital. The gravity and hideousness of the injuries caused to
the prosecutrix, clearly showed the use of iron rods by the             F
accused. The injuries caused to the prosecutrix by incessantly
and abominably injuring her private parts using the concerned
iron rods were so grave that death was the inevitable
consequence. Both the iron rods were recovered at the instance
of A-1 from inside the concerned bus. The DNA profile developed         G
from the blood stains obtained from the iron rods was also
consistent with the DNA profile of the prosecutrix. In such
circumstances, merely because the finger prints of the accused
were not obtained from the iron rods, it cannot be concluded that
the accused were not linked with the concerned iron rods. A-1
                                                                        H
22           SUPREME COURT REPORTS                    [20 l 7] 6 S.C.R.



A    himself had the iron rods recovered to the lnyestigating Officer.
     Furthermore, the dying declaration of the prosecutrix, which was
     highly reliable, clearly established the horrendous \1se of iron
     rods by the accused persons. [Paras 193-195J[153-C, E-H; 154-
     B-E)
B       9.2 PW-1, in his chief examination, deposed that he was
  severely assaulted by the accused with iron rods on his head and
  the rest of his body. It is submitted that as per MLC of PW-1,
  the nature of injuries sustained by PW-1 were simple. Of course,
  as per MLC, PW-1 sustained simple injuries but MLC also
  mentioned that there was also nasal bleeding from his nose and
c PW-1 was also vomiting. Merely because the injuries sustained
  by PW-1 were opined to be of simple nature, the use of iron rods
  cannot be doubted. The appellants stressed that PW-I neither
  in his MLC nor in his complaint mentioned the use of iron rod;
  the description of bus or the names of the accused. The purpose
D of FIR is mainly to set the criminal law in motion and not to lay
  down every minute detail and the entire gamut of the evidence
  relating to the case and, therefore, non-mention of use of iron
  rods in the FIR does not remotely create a dent in the case of the
  prosecution. PW-1 was being held by the accused towards the
  front of the bus, while the prosecutrix was being raped at the
E rear side of the bus and the lights of the bus also had been turned
  off. His statement in his complaint that he heard the prosecutrix
  shouting and crying and that her voice was oscillating, was
  consistent with the narration of facts as also the medical records.
  The second statement of the prosecutrix recorded by PW-27
F detailed the account of the entire incident specifying the role of
  each accused; gang rape/unnatural sex committed upon her; and
  the injuries caused in her vagina and rectum by use of iron rod
  and by inserting of hands by the accused are mentioned. This
  statement, in fact, bears the date and signature of the prosecutrix
  and records that the accused committed gang rape on her, inserted
G iron rod in the vagina and through anal opening causing injuries
  to the internal organs of the prosecutrix. The subsequent
  statement of the prosecutrix also affirmed the above facts. That
  apart, as per the medical opinion given by PW-49, the recto-vaginal
  injury of the prosecutrix could be caused by the rods recovered
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                     23



from the bus. [Paras 197-200][154-F-G, H; 155-A-B, E-H]               A
      10. Anatomy argument:
      From the nature of the injuries noted in the OT Notes, the
rectum was longitudinally torn and transverse colon was torn.
From the Post-Mortem Certificate, the uterus was found in
position (no injuries to uterus). If the rod was inserted in the      B
vagina, having regard to the fact that the injury within the vagina
was only in the posterior surface, it indicates that the rod was
pushed inside with a downward force and not upward (which could
have resulted in injury to the uterus) and it perhaps tunnelled its
way through the vagina into the rectal cavity and the bowels.         c
Therefore, merely because no injuries to the uterus of the victim
were noticed, that does not lead to the conclusion that iron rod
was not used. [Para 206][160-F-G]
      'Gray's Anatomy: Descriptive and Applied', 34th Edn.
      [Orient Longman Publication] - referred to.                     D
      11. Analysis of evidence pertaining to DNA:
      11.1 DNA is the abbreviation of Deoxyribo Nucleic Acid.
It is the basic genetic material in all human body cells. It is not
contained in red blood corpuscles. It is, however, present in white
corpuscles. It carries the genetic code. DNA structure determines     E
human character, behaviour and body characteristics. DNA
profiles are encrypted sets of numbers that reflect a person's
DNA makeup which, in forensics, is used to identify human beings.
DNA is a complex molecule. It has a double helix structure which
can be compared with a twisted rope 'ladder'. DNA technology
                                                                      F
as a part of Forensic Science and scientific discipline not only
provides guidance to investigation but also supplies the Court
accrued information about the tending features of identification
of criminals. The recent advancement in modern biological
research has regularized Forensic Science resulting in radical
help in the administration of justice. In our country also like       G
several other developed and developing countries, DNA evidence
is being increasingly relied upon by courts. After the amendment
in the Criminal Procedure Code by the insertion of Section 53A
by Act 25 of 2005, DNA profiling has now become a part of the
statutory scheme. Section 53A relates to the examination of .a
                                                                      H
24            SUPREME COURT REPORTS                        [2017] 6 S.C.R.


A    person accused of rape by a medical practitioner. Similarly, under
     Section 164A inserted by Act 25 of 2005, for medical examination
     of the victim of rape, the description of material taken from the
     person of the woman for DNA profiling is must. [Paras 208, 213
     and 214][161-C; 164-B-D]
B          Regina v. Alan James Doheny & Gwy Adams 1997 (1)
           Criminal Appeal Reports 369; Frye v. United States
           54 App. D.C. 46 (1923); Daubert v. Merrell Dow
           Pharmaceuticals, lnc.113 S.C.T. 2786 (1993); District
           Attorney's Office for the Third Judicial District et al. v.
           William G Osborne 129 Supreme Court Reporter 2308
c          - referred to.
         11.2 DNA report deserves to be accepted unless it is
  absolutely dented and for non-acceptance of the same, it is to be
  established that there had been no quality control or quality
  assurance. In order to establish· a clear link between the accused
D persons and the incident at hand, the prosecution also adduced
  scientific evidence in the form of DNA, fingerprint and bite mark
  analysis. Various samples, for the purpose of DNA profiling, were
  lifted from the person of the prosecutrix, the informant, the
  accused, their clothes/ articles; the dumping spot, the iron rods,
E the  ashes of partly burnt clothes as well as from the offending
  bus. PW-45 analysed the said DNA profiles and in his report, he
  concluded that the samples were authentic and capable of
  establishing the identities of the persons concerned beyond
  reasonable doubt. After establishing the identities of each of the
  accused persons, the informant and the prosecutrix through DNA
F 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 informant and the accused, generated earlier
  from known samples. Such an analysis cogently linked each of
G the accused with the victims as also with the crime scene. PW-
  45 clearly testified in his cross-examination that all the
  experiments conducted by him confirmed to the guidelines and
  methodology documented in the Working Procedure Manuals of
  the laboratory which have been validated and recommended for
  use in the laboratory. He further added that once a DNA profile
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                      25



is generated, its accuracy is 100%. The trial court and the High       A
Court consistently noted that the defence did not raise any
substantial ground to challenge the DNA report during the cross-
examination of PW-45. In such circumstances, there is no reason
to declare the DNA report as inaccurate, especially when it clearly
linked the accused persons with the incident. (Paras 224-227,          B
229][170-G-H; 171-A-D; 173-E-G]
      Kamti Devi (Smt.) and another v. Poshi Ram [2001] 3
      SCR 729 : (2001) 5 SCC 311; Pantangi Ba/arama
      Venkata Ganesh v. State of Andhra Pradesh [2009] 11 ·
      SCR 636 : (2009) 14 SCC 607; Santosh Kumar Singh
      v. State Through CBI [2010] 13 SCR 901 : (2010) 9                c
      SCC 747; Inspector of Police, Tamil Nadu v. John David
      [2011] 7 SCR 354: (2011) 5 SCC 509; Krishan Kumar
      Malik v. State of Haryana [2011] 8 SCR 774 : (2011) 7
      SCC 130; Surendra Kofi v. State of Uttar Pradesh and
      others (2011] 2 SCR 939 : (2011) 4 SCC 80;                       D
      Mohammed Ajma/ Mohammad Amir Kasab alias Abu.
      Mujahid v. State of Maharashtra (2012] 8 SCR 295 :
      (2012) 9 SCC 1; Sandeep v. State of Uttar Pradesh
      [2012] 5 SCR 952 : (2012) 6 SCC 107; Rajkumar v.
      State of Madhya Pradesh [2014] 3 SCR 212 : (2014) 5
      SCC 353; Nand/al Wasudeo Badwaik v. Lata Nandlal                 E
      Badwaik and another [2014] 1 SCR 120 : (2014) 2
      sec 576 - relied on.
      12. The evidence relating to finger print analysis:
      The report of the Finger Print Division of the CFSL, CBI         F
was that the chance prints of A-4 were found on the bus in question.
The said report incontrovertibly proved that A-4 was present in
the bus at the time of the incident. The other chance prints were
found to be unfit for comparison or different from specimen print.
[Para 232](174-E-F; 175-B-C)
                                                                       G
      13. The Odontology report:
      13.1 Odontology is a branch of forensic science in which
dental knowledge is applied to assist the criminal justice delivery
system. In the present case, the photographs of bite marks on
different parts of the body of the prosecutrix were examined by        H
26            SUPREME COURT REPORTS                      [2017] 6 S.C.R.


A    PW-71. The said bite marks found on the body of the victim
     were compared with the dental models of the suspects. The
     analysis showed that at least three bite marks were caused by A-
     t, whereas one bite mark was identified to have been most likely
     caused by A-3. Bite mark analysis play an important role in the·
     criminal justice system. Advanced development of technology
B
     such as laser scanning, scanning electron microscopy or cone
     beam ~omputed tomography in forensic odontology is utilized to
     identify more details in bite marks and in the individu.al teeth of
     the bite. Unlike fingerprints and DNA, bite marks lack the
     specificity and durability as the human teeth may change over
c    time. However, bite mark evidence has other advantages in the
     criminal justice system that links a specific individual to the crime
     or victim. For a bite mark analysis, it must contain abundant
     information and the tooth that made the mark must be quite
     distinctive. Bite marks in skin are photographed in cases where
D    the suspect is apprehended. A thorough dental combination is
     administered after dental examination of the suspect. Final
     comparison of the details of the original mark with the dentation
     of the suspect is done by experts. [Paras 233, 238-240][175-C-
     D; 177-B; 178-B-D]
           Dr. K.S. Narayan Reddy, in his book, Medical
E          Jurisprudence and Toxicology (law, Practice and
           Procedure) Third Edition, 2010, Chapter VIII page
           268 - referred to.
           13.2 The bite marks generally include only a limited number
     of teeth. Forensic Odontology has established itself as an
F    important and indispensable science in medico-legal matters and
     expert evidence through various reports which have been utilized
     by courts in the administration of justice. In the case at hand, the
     report is wholly credible because of matching of bite marks with
     the tooth structure of the accused persons and there is no reason
G    to view the same with any suspicion. The evidence brought on
     record cogently established the injuries sustained by the
     prosecutrix and there was consistency between the injuries and
     the report. [Paras 241, 24211178-D-E, F-G]
           14. Acceptability of the plea of alibi:
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                        27


      It is well settled in law that when a plea of alibi is taken by A
an accused, the burden is upon him to establish the same by
positive evidence after the onus as regards the presence on the
spot is established by the prosecution. Considering the
inconsistent and contradictory nature of the evidence of 'alibi'
led by the accused against the positive evidence of the B
prosecution, including the scientific one, the accused miserably
failed to discharge their burden of absolute certainty qua their
plea of 'alibi'. The plea taken by them was an afterthought and
rather may be read as an additional circumstance against them.
The plea of 'alibi' that A-4 and A-5 had attended the alleged
musical programme in the evening of 16.12.2012 was rightly_ C
rejected by the trial court which was given the stamp of approval
by the High Court. [Paras 243, 254 and 266][179-A-B; 183-C;
186-E-F)
      Binay Kumar Singh v. State of Bihar [1996] 8 Suppl.
      SCR 225 : (1997) 1 SCC 283; Gwpreet Singh v. State                 D
      of Haryana [2002) 2 Suppl. SCR 337 : (2002) 8 SCC
      18; Shaikh Sattar v. State of Maharashtra [2010] 10
      SCR 503 : (2010) 8 sec 430; Jitender Kumar V. State
      of Haryana (2012) 6 SCC 204; Ram Singh and others
      v. Col. Ram Singh [1985] Suppl. SCR 399 : (1985)
      Supp. SCC 611 - relied on.                                         E

      15. Criminal conspiracy:
       15.1 The underlying purpose for the insertion of Sections
120A and 120B IPC was to make a mere agreement to do an
illegal act or an act which is not illegal by illegal means punishable   F
under law. The criminal thoughts in the mind when take concrete
shape of an agreement to do or cause to be done an illegal act or
an act which is not illegal by illegal means then even if nothing
further is done an agreement is designated as a criminal
conspiracy. The proviso to Section 120A engrafts a limitation
that no agreement except an agreement to commit an offence               G
shall amount to a criminal conspiracy unless some act besides
the agreement is done by one or more parties to such agreement
in pursuance thereof. [Para 270)[187-G-H; 188-A)
      E.G Barsay v. State of Bombay [1962) SCR 195 : AIR
                                                                         H
28          SUPREME COURT REPORTS                       [2017] 6 S.C.R.


A         1961 SC 1762; Yash Pal Mittal v. State of Punjab [1978)
          1 SCR 781 : (1977) 4 SCC 540; Kehm· Singh and Ors.
          v. State (Delhi Administration) [1988] 2 Suppl. SCR 24 :
          (1988) 3 SCC 609; Saju v. State of Kera/a [2000) 4
          Suppl. SCR 621 : (2001) 1 SCC 378; Mir Nagvi Askari
          v. Central Bureau of Investigation [2009) 13 SCR 124
B
          : (2009) 15 SCC 643; Pratapbhai Hamirbhai Solanki
          v. State of Gujrat and another (20121 9 SCR 561 :
          (2013) 1 SCC 613; K. R. Purushothaman v. State of
          Kera/a [20051 4 Suppl. SCR 498 : (2005) 12 SCC 631;
          State through Superintendent of Police, CBI/SIT v. Na/ini
c         and others [1999] 3 SCR 1 : (1999) 5 SCC 253 - relied
          on.
          R. v. Mwphy (1837) 173 ER 502; Quinn v. Leatham
          (1901) AC 495 - referred to.
          Halsbwy's Laws of England (5th Ed. Vol.25, page 73)
D         - referred to.
         15.2 The rationale of conspiracy is that the required
  objective manifestation of disposition of criminality is provided
  by the act of agreement. Conspiracy is a clandestine activity.
  Persons generally do not form illegal covenants openly. In the
E interest of security, a person may carry out his part of a conspiracy
  without even being informed of the identity of his co-conspirators.
  An agreement of this kind can rarely be shown by direct proof; it
  must be inferred from the circumstantial evidence of co-operation
  between the accused. It becomes clear that the prosecution must
F adduce   evidence to prove that: the accused agreed to do or caused
  to be done an act; such an act was illegal or was to be done by
  illegal means within the meaning of IPC; irrespective of whether
  some overt act was done by one of the accused in pursuance of
  the agreement. In order to prove the presence of all the accused
  in the bus where the entire incident took place, the prosecution
G relied upon the testimony of PW-I, PW-82, PW-16 and, most
  importantly, the dying declarations of the prosecutrix. As per
  the records, PW-82 has testified to the effect that on the date of
  the incident, about 8:30 p.m., he had boarded the concerned bus
  from Munirka Bus Stand, New Delhi, on noticing that the
H conductor of the bus sought commuters for Khanpur. However,
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                    29



he was later informed that he would be dropped at Nehru Place        A
instead of Khanpur. When PW-82 tried to get down the bus, he
was wrongfully confined, attacked by the persons inside the bus
who robbed him of his belongings, viz., Rs.1500/- in cash and a
mobile phone, and he was then thrown out of the moving bus.
During the trial, PW-82 identified all the four accused persons,     B
viz., A-2 to A-5 present in the concerned bus at the time of the
incident. [Paras 285, 287, 290 and 291 )[200-F-G; 202-B, G-H;
203-A-B]
     Noor Mohammad Mohd. Yusuf Momin v. State of
     Maharashtra (1971] 1 SCR 119 : AIR 1971 SC 885;
     Firozuddin Basheeruddin and others v. State of Kera/a           c
     (2001) 7 sec 596; Suresh Chandra Bahri V. State of
     Bihar [1994] 1 Suppl. SCR 483 : (1995) Suppl. I SCC
     80 - relied on.
      V.C. Shukla v. State (Delhi Admn.) [1980] SCR 500 :
      (I 980) Suppl. SCC 249 - referred to.                          D

      15.3 In his statement under Section 313 CrPC, A2 admitted
that PW-82 had boarded the offending bus prior to the boarding
of the bus by the informant and the victim. The presence of PW-
82 in Ex.Pl bus prior to the boarding of the bus by the informant,
PW-1, and the victim and the presence of all the accused in the      E
bus was, thus, established by the prosecution. The evidence of
PW-81, the owner of the offending bus, indicated A-1, (since
deceased) as the driver of the bus and A-3 as the cleaner of the
bus which was further shown in the attendance register of the
bus. The fact that the driver of the bus at the relevant time was    F
A-1 was also proved through the testimony of PW-16, Manager
(Administration) of the said school. PW-16 deposed that the bus
in question was routinely driven by A-1 (since deceased). The
statement of PW-16 was corroborated by the testimony of PW-
81. [Paras 294, 295)[203-H; 204-A, F-G; 205-A, C-D]
                                                                     G
      15.4 The testimony of PW-13 who was an auto driver and
also resident of jhuggi at Ravi Dass Camp from where the
offending bus was seized is also relevant to prove the presence
of the accused in the bus. He stated in his evidence that A-1,
(since deceased), is the brother of A-2 and that both resided in
                                                                     H
30            SUPREME COURT REPORTS                      [2017] 6 S.C.R.


A    the jhuggi at Ravi Dass camp and that A-1 (deceased) used to
     drive the said bus and park it in the night near his jhuggi. PW-
     13, in his evidence, deposed that on the night of 16.12.2012, about
     11 :30 p.m., when he returned to his jhuggi after plying his auto,
     he saw A-2, taking water in some can inside a white colour bus
     and washing it from inside. He also noticed some clothes and
B
     pieces of curtains being burnt in the fire. In his questioning
     under Section 313 CrPC, A-2, admitted that he and A-1 (since
     deceased), are brothers. He also admitted that on the night of
     16.12.2012, he was driving the bus and that A-4 and A-5 were
     seated on the backside of the driver's seat, whereas A-1 and A-3
c    were sitting in the driver's cabin. The prosecution established
     that the accused were associated with each other. The criminal
     acts done in furtherance of conspiracy is established by the
     sequence of events and the conduct of the accused. An important
     facet of the law of conspiracy is that apart from it being a distinct
     offence, all conspirators are liable for the acts of each other of
D
     the crime or crimes which have been committed as a result of
     the conspiracy. [Paras 296, 297 and 300][205-E-H; 206-A; 208-
     D]
        16. Section 10 of the Indian Evidence Act begins with the
  phrase "where there is reasonable ground to believe that two or
E
  more persons have conspired together to commit an offence"
  which implies that if prima facie evidence of the existence of a
  conspiracy is given and accepted, the evidence of acts and
  statements made by any one Qf the conspirators in furtherance of
  the common intention is admissible against all. In the facts of the
F present case, the prima facie evidence of the existence of
  conspiracy is well established. The chain of events described by
  the prosecutrix in her dying declarations coupled with the
  testimonies of the other witnesses clearly establish that as soon
  as the informant and the prosecutrix boarded the bus, the accused
  persons formed an agreement to commit heinous offences against
G the victim. The conduct of the accused in committing heinous
  offences with the prosecutrix in concert with each other and
  thereafter throwing her out of the bus in an unconscious state
  alongwith PW-I unequivocaly bring home the charge under
  Section 120B in case of each of them. The criminal acts done in
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                    31


furtherance of the conspiracy is evident from the acts and also      A
the words uttered during the commission of the offence.
Therefore, the trial court and the High Court correctly considered
the entire case on the touchstone of well-recognised principles
for arriving at the conclusion of criminal conspiracy. The
prosecution was able to unfurl the case relating to criminal
                                                                      B
conspiracy by connecting the chain of circumstances. The relevant
evidence on record led to a singular conclusion that the accused
persons are liable for criminal conspiracy and their confessions
to counter the same deserve to be repelled. (Paras 301, 303][208-
G-H; 209-A; 210-A-B, E-H]
      Santa Singh v. State of Punjab [1977] 1 SCR 229                c
      : (1976) 4 SCC 190; Dagdu and others v. State of
      Maharashtra [1977) 3 SCR 636 : (1977) 3 SCC 68 -
      relied on.
         17. The mitigating factors highlighted by the appellants in
  the instant case pertain to the strata to which these accused D
  belong, the aged parents, marital status and the young children
  and the suffering they would go through and the calamities they
  would face in case of affirmation of sentence, their conduct while
  they are in custody and the reformative path they have chosen
  and their transformation and the possibility of reformation. In E
  the instant case, the brutal, barbaric and diabolic nature of the
. crime is evincible from the acts committed by the accused
  persons, viz., the assault on the informant, PW-1 with iron rod
  and tearing off his clothes; assaulting the informant and the
  deceased with hands, kicks and iron rod and robbing them of
  their personal belongings like debit cards, ring, informant's shoes, F
  etc.; attacking the deceased by forcibly disrobing her and
  committing violent sexual assault by all the appellants; their
  brutish behaviour in having anal sex with the deceased and forcing
  her to perform oral sex; injuries on the body of the deceased by
  way of bite marks (10 in number); and insertion of rod in her G
   private parts that, inter alia, caused perforation of her intestine
   which caused sepsis and, ultimately, led to her death. The medical
   history of the prosecutrix demonstrates that the entire intestine
   of the prosecutrix was perforated and splayed open due to the
   repeated insertion of the rod and hands; and the appellants had
                                                                      H
32             SUPREME COURT REPORTS                    [2017] 6 S.C.R.



A pulled out the internal organs of the prosecutrix in the most
  savage and inhuman manner that caused grave injuries which
  ultimately annihilated her life. As has been established, the
  prosecutrix sustained various bite marks which 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,
B
  left thigh lateral, left lower anterior and genitals. These acts itself
  demonstrate the mental perversion and inconceivable brutality
  as caused by the appellants. As further proven, they threw the
  informant and the deceased victim on the road in a cold winter
  night. After throwing the informant and the deceased victim, they
c tried  to run the bus over them so that there would be no evidence
  against them. They made all possible efforts in destroying the
  evidence by, inter alia, washing the bus and burning the clothes
  of the deceased and after performing the gruesome act, they
  divided the loot among themselves. The accused persons had
  found an object for enjoyment in her and, as is evident, they were
D
  obsessed with the singular purpose sans any feeling to ravish
  her as they liked, treat her as they felt and, the gross sadistic and
  beastly instinctual pleasures came to the forefront when they,
  after ravishing her, thought it to be just a matter of routine to
  throw her alongwith her friend out of the bus and crush them.
E The casual manner with which she was treated and the devilish
  manner in which they played with her identity and dignity is
  humanly inconceivable. It sounds like a story from a different
  world where huma1iity has been treated with irreverence. The
  appetite for sex, the hunger for violence, the position of the
  empowered and the attitude of perversity are bound to shock
F
  the collective conscience which knows not what to do. It is
  manifest that the wanton lust, the servility to absolutely unchained
  carnal desire and slavery to the loathsome beastility of passion
  ruled the mindset of the appellants to commit a crime which can
  summon with immediacy "tsunami" of shock in the mind of the
G collective and destroy the civilised marrows of the milieu in
  entirety. The aggravating circumstances outweigh the mitigating
  circumstances now brought on record. Therefore, the High Court
  correctly confirmed the death penalty and there is no reason to
  differ with the same. [Paras 354, 356 and 357)[246-B, E-H; 247-
     A-F, G]
H
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.              33



  Bachan Singh V. State of Punjab (1980) 2 sec 684;         A
  Machhi Singh v. State of Punjab [1983] 3 SCR 413 :
  (1983) 3 SCC 470; Sangeet and another v. State of
  Haryana (2012] 13 SCR 85 : (2013) 2 SCC 452;
  Shankar Kisanrao Khade v. State of Maharashtra
  [2013] 6 SCR 949 : (2013) 5 sec 546; Shiv v. High
                                                            B
  Court of Karnataka (2007] 2 SCR 555 : (2007)
  4 SCC 713; B.A. Umesh v. Registrar General, High
, Court of Karnataka (2011] 2 SCR 367 : (2011) 3 SCC
  85; Dhananjoy Chate1jee v. State of West Bengal [1994]
  1 SCR 37 : (1994) 2 SCC 220; Triveniben v. State of
  Gujarat [1989] l SCR 509 : (1989) l SCC 678;              c
  Karnesh Singh v. State of UP 1968 AIR 1402 : [1968]
  SCR 774; Ronny v. State of Maharashtra [1998] 2 SCR
  162 : 1998 (3) SCC 625; Nirmal Singh v. State of
  Haryana (1999] 2 SCR l : (1999) 3 SCC 670; Sahdeo
  v. State of UP [2004] l Suppl. SCR 918: (2004) 10
                                                            D
  sec 682; Raghubir Singh V. State of Haryana [1914]
  3 SCR 356: (1975) 3 SCC 37; Harnam Singh v. State
  of Uttar Pradesh [1976] 2 SCR 274 : (1976) l SCC
  163; Amit v. State of Maharashtra [2003) 2 Suppl.
  SCR 285 : (2003) 8 SCC 93; Rahul v. State of
  Maharashtra (2005) l 0 SCC 322; Rameshbhai                E
  Chandiibhai Rathod v. State of Gujarat [2009)
  SCR 1055 : (2009) 5 SCC 740; Santosh Kumar Bariyar
  v. State of Maharashtra [2009) 9 SCR 90 : (2009) 6
    SCC 498; Sebastian v. State of Kera/a (2010) l
    SCC 58; Rameshbhai Chandubhai Rathod II v. State
                                                            F
  of Gujarat [2011) l SCR 829: (2011) 2 SCC 764; Amit
   v. State of Uttar Pradesh [2012] 1 SCR 1009: (2012)
   4 SCC 107; La lit Kumar Yadav v. State of Uttar
   Pradesh [2014) 8 SCR 668: (2014) 11 SCC 129;
   Akhtar v State of Uttar Pradesh (1999) 6 SCC 60; Raju
   v. State of Ha1yana [2001] 3 SCR 409: (2001) 9 SCC       G
   50; Amrit Singh v. State of Punjab [2006] 8 Suppl.
   SCR 889 : (2006) 12 S\::C 79; Surender Pal v. State of
   Gujarat [2004) 4 Suppl. SCR 464 : (2005) 3 SCC 127;
   Anil v. State of Maharashtra [2014) 3 SCR 34: (2014)
   4 SCC 69; La/it Kumar Yadav v. State of Uttar Pradesh
                                                            H
34     SUPREME COURT REPORTS                     [2017] 6 S.C.R.


A    [2014] 8 SCR 668 : (2014) II sec 129; Bantu V. State
     of Madhya Pradesh (2001] 4 Suppl. SCR 298: (2001)
     9 SCC 615; Rajesh Kumar v. State (2011) 13 SCC
     706; Ramnaresh v. State of Chhattisgarh (2012) 4 SCC
     257; Sandesh v. State of Maharashtra (2012] 13
     SCR 1049 : (2013) 2 SCC 479; Swamy Shradhananda
B
     (2) v. State of Karnataka (2008] 11 SCR 93 : (2008)
     13 SCC 767; Union of India v. Sriharan (2016) 7
      sec 1; Neel Kumar V. State of Haryana (2012] 5
     SCR 696 : (2012) 5 SCC 766; Ram Deo Prasad v. State
     of Bihar [2013] 6 SCR 108: (2013) 7 SCC 725;
c    Chhote Lal v. State of Madhya Pradesh (2011] 8
     SCR 239: (2013) 9 SCC 795; Selvam v. State (2014)
     12 SCC 274; Sevaka Perumal v. State of Tamil Nadu
     [1991] 2 SCR 711 : (1991) 3 SCC 471; Kamta Tiwari
     v. State of Madhya Pradesh [1996] 5 Suppl. SCR 507 :
     (1996) 6 SCC 250; State of UP. v. Satish [2005] 2
D
     SCR 1132 : (2005) 3 sec 114; Holiram Bordoloi V.
     State of Assam [2005] 3 SCR 406 : (2005) 3 SCC 793;
     Ankush Maruti Shinde v. State of Maharashtra [2009]
     7 SCR 182 : (2009) 6 SCC 667; Sundar v. State [2013]
     4 SCR 25 : (2013) 3 SCC 215; Mohjil Khan v. State of
E    Jharkhand[2014] 10 SCR 812: (2015) 1SCC67;
     Deepak Rai v. State of Bihar [2013] 14
     SCR 297 : (2013) 10 SCC 421; Purshottam Dashrath
     Borate v. State of Maharashtra [2015( 5 SCR 1112:
     (2015) 6 sec 652; Haresh Mohandas Rajput V. State
     of Maharashtra [2011] 14 SCR 921 : (2011) 12
F
     SCC 56; Laxman Naik v. State of Orissa [1994] 2 SCR
     94: (1994) 3 SCC 381; Bantu v. State of Uttar Pradesh
     [2008] 11 SCR 184 : (2008) 11 SCC 113; Devender
     Pal Singh v. State of A.P. [2002] 2 SCR 767 : (2002) 5
     sec 234; Rajendra Pralhadrao Wasnik V. State of
G    Maharashtra [2012] 2 SCR 225 : (2012) 4 SCC 37;
     State ofT.N v. Suresh and another [1997] 6 Suppl. SCR
     203 : (1998) 2 SCC 372; State of Maharashtra v. Baral
     Fakira Dhiwar [2001] 5 Suppl. SCR 12: (2002) 1 SCC
     622; Vasanta Sampat Dupare v. State of Maharashtra
     (2015) 1 sec 253 - referred to.
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                      35



     Furman v. Georgia 33 L Ed 2d 346 : 408 US 238 (1972)              A
     - referred to.
     PER R. BANUMATHI, J.
       1. Duty of court in appreciation of evidence while dealing
with cases of rape: Crime against women is an unlawful intrusion
of her right to privacy, which offends her self-esteem and dignity. B
Clause (g) of sub-section (2) of Section 376 IPC (prior to 2013
Amendment Act 13 of 2013) deals with cases of gang rape. In
order to establish an offence under Section 376(2)(g) IPC, read
with Explanation I thereto, the prosecution must adduce evidence
to indicate that more than one accused had acted in concert and c
in such an event, if rape is committed by even one, all the accused
are guilty, irrespective of the fact that only one or more of them
had actually committed the act. Section 376(2)(g) read with
Explanation I thus embodies a principle of joint liability. But so
far as appreciation of evidence is concerned, the principles
concerning the cases falling under sub-section(l) of Section 376 D
IPC apply. In a case of rape, like other criminal cases, onus is
always on the prosecution to prove affirmatively each ingredients
of the offence. The prosecution must discharge this burden of
proof to bring home the guilt of the accused and this onus never
shifts. [Paras 11, 13 and 14][252-B-C, G-H; 253-A-C]                E
      State of Punjab v. Gurmit Singh and Others [1996] 1
      SCR 532 : (1996) 2 sec 384; State of Rajasthan V.
      N.K. The Accused [2000] 2 SCR 818 : (2000) 5 SCC
      30; State ofH.P. v. lekh Raj and Another [199914 Suppl.
      SCR 286 : (2000) 1 SCC 247; State of H.P. v. Asha                F
      Ram [2005] 5 Suppl. SCR 280 : (2005) 13 SCC 766;
      Narender Kumar v. State (NCT of Delhi) [20121
      6 SCR 148 : (2012) 7 SCC 171 - relied on.
      1.2 While dealing with cases of rape, the Court must act
with utmost sensitivity, examining the broader probabilities of a      G
case and it should not be swayed by minor contradictions and
discrepancies in appreciation of evidence of the witnesses which
are not of a substantial character. It is now well-settled that
conviction for an offence of rape can be based on the sole testimony
of the prosecutrix corroborated by medical evidence and other
                                                                       H
36            SUPREME COURT REPORTS                      [2017] 6 S.C.R.


A    circumstantial evidence such as the report of chemical
     examination, scientific examination etc., if the same is found
     natural and trustworthy. Persisting notion that the testimony of
     victim has to be corroborated by other evidence must be
     removed. To equate a rape victim to an accomplice is to add insult
.B   to womanhood. Ordinarily a woman, more so, a young woman
     will not stake her reputation by levelling a false charge, concerning
     her chastity. There is no legal compulsion to look for corroboration
     of the prosecutrix's testimony unless the evidence of the victim
     suffers from serious infirmities, thereby seeking corroboration.
     Courts should not attach undue importance to discrepancies,
C    where the contradictions sought to be brought up from the
     evidence of the prosecutrix are immaterial and of no
     consequence. Minor variations in the testimony of the witnesses
     are often the hallmark of truth of the testimony. Trivial
     discrepancies ought not to obliterate an otherwise acceptable
D    evidence. Due to efflux of time, there are bound to be minor
     contradictions/discrepancies in the statement of the prosecutrix
     but such minor discrepancies/inconsistencies are only natural
     since when truth is sought to be projected through human, there
     are bound to be certain inherent contradictions. [Paras 15, 16,
     17 and 24][253-F-H; 254-A, D-E; 258-G-H; 259-A-B]
·E
           State of Karnataka v. Krishnappa [2000] 2 SCR 761 :
           (2000) 4 sec 75; Bhanvada Bhoginbhai Hirjibhai V.
           State of Gujarat (1983] 3 SCR 280 : (1983) 3 SCC
           217; Krishan Lal v. State of Haryana [1980] 3 SCR
           305 : (1980) 3 SCC 159; Rajinder alias Raju v. State
 F         of Himachal Pradesh [2009] 10 SCR 248 : (2009) 16
           sec 69; Raju and Others V. State of Madhya Pradesh
           [2008] 16 SCR 1078 : (2008) 15 SCC 133; State of
           H.P. v. Asha Ram [2005) 5 Suppl. SCR 280 : (2005)
           13 SCC 766; State of Punjab v. Ramdev Singh [2003]
           6 Suppl. SCR 995: (2004) 1 SCC 421; State of U.P. v.
 G         Munshi (2008) 12 SCR 897 : (2008) 9 SCC 390; State
           of H.P. v. Gian Chand (2001) 3 SCR 247 : (2001) 6
           SCC 71; State of Rajasthan v. N.K. The Accused [2000]
           2 SCR 818 : (2000) 5 SCC 30; State of H.P. v. Lekh
           Raj and Another [1999) 4 Suppl. SCR 286 : (2000) 1
           SCC 247, Wahid Khan v. State of Madhya Pradesh
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                       37


      (2009] 15 SCR 1207 : (2010) 2 SCC 9; Dinesh Jaiswal               A
      v. State of Madhya Pradesh (20101 1 SCR 1063 : (2010)
      3 SCC 232; Om Prakash v. State of Hmyana (2011] 7
      SCR 1080 : (2011) 14 SCC 309; Om Prakash v. State
      of U.P. (2006] 2 Suppl. SCR 318 : (2006) 9 SCC 787;
      Tameezuddin v. State (NCT of Delhi) (2009] 14 SCR 80
                                                                        B
      : (2009) 15 SCC 566; Suresh N. Bhusare v. State of
      Maharashtra (1999) 1 SCC 220; Jai Krishna Manda/
      v. State of Jharkhand (2010) 14 SCC 534 - relied on.
      2. Dying Declaration:
       2.1 Rape deeply affects the entire psychology of the woman c
arid humiliates her, apart from leaving her in a trauma. The
testimony of the rape victim must be appreciated in the
background of the entire case and the trauma which the victim
had undergone. As a matter of record, PW-49 at around 11 :15
p.m. on the night of 16.12.2012, had attended to the prosecutrix
as soon as she was brought to the hospital and had prepared D
casualty/OPD Card of the prosecutrix as well as her MLC. At
that time, PW-49 had found her cold and clammy due to vaso-
constriction. The prosecutrix was found shivering, for which she
was administered JV line and warm saline in order to stabilize
her pulse and BP. When the victim was in such a condition, the E'
victim cannot be expected to give minute details of the occurrence
like overt act played by the accused, insertion of iron rod etc.
There is no justification for blowing up such omission out of
proportion in the statement recorded by PW-49 and doubt the
same. Jn the occurrence, physical and emotional balance of the
victim must have been greatly disturbed. Startled by the incident, F
whatever the victim was able to momentarily recollect, she
narrated to PW-49 and placed in that position non-mention of
minute details in OPD Card cannot be termed as a material
omission. [Para 2811260-F-H; 261-A-BJ
      2.2 The Court must scrutinize the dying declaration carefully     G
and ensure that the declaration is not the result of tutoring,
prompting or imagination. Once the Court is satisfied that the
declaration is true and voluntary, it can base its conviction without
any further corroboration. It cannot be laid down as an absolute
rule of law that the dying declaration cannot form the sole basis       H
38            SUPREME COURT REPORTS                      [2017] 6 S.C.R.


A    of conviction unless it is corroborated. The rule requiring
     corroboration is merely a rule of prudence. [Para 29)[261-D]
           K. Ramachandra Reddy and Am: v. Public Prosecutor
           [1976] Suppl. SCR 542 : (1976) 3 SCC 618; Paniben
           v. State of Gujarat [1992) 2 SCR 197: (1992) 2 SCC
B          474; Khushal Rao v. State of Bombay [1958] SCR 552
           : AIR 1958 SC 22; State of Uttar Pradesh v. Ram Sagar
           Yadav [1985] 2 SCR 621 : (1985) 1 SCC 552; State of
           Orissa v. Bansidhar Singh [1995] 6 Suppl. SCR 212 :
           (1996) 2 sec 194; Panneerselvam V. State of Tamil
           Nadu [2008) 8 SCR 962 : (2008) 17 SCC 190; Atbir v.
c          Govt. of NCT of Delhi [2010) 9 SCR 993 : (2010) 9
           SCC 1; Umakant and Anr. v. State of Chhattisgarh
           [2014] 8 SCR 69 : (2014) 7 sec 405 - relied on.
            2.3 Multiple Dying Declarations: In cases where there are
     more than one dying declarations, the Court should consider
D    whether they are consistent with each other. If there are
     inconsistencies, the nature of the inconsistencies must be
     examined as to whether they are material or not. In cases where
     there are more than one dying declaration, it is the duty of the
     Court to consider each one of them and satisfy itself as to the
E    voluntariness and reliability of the declarations. Mere fact of
     recording multiple dying declarations does not take away the
     importance of each individual declaration. Court has to examine
     the contents of dying declaration in the light of various
     surrounding facts and circumstances. The victim made three
     dying declarations:- (i) statement recorded by PW-49 immediately
F    after the victim was admitted to the hospital; (ii) Dying declaration
     recorded by PW-27 SDM on 21.12.2012; and (iii) dying declaration
     recorded by PW-30, Metropolitan Magistrate on 25.12.2012 at
     I :00 P.M by multiple choice questions and recording answers by
     gestures and writing. In the first dying declaration, the prosecutrix
G    has stated that more than two men committed rape on her, bit
     her on lips, cheeks and breast and also subjected her to unnatural
     sex. In the second dying declaration recorded by PW-27, the
     victim has narrated the entire incident in great detail, specifying
     the role of each accused, rape committed by number of persons,
     insertion of iron rod in her private parts, description of the bus,
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                   39



robbery committed and throwing of both the victims out of the A
moving bus in naked condition. In the second dying declaration,
she has also stated that the accused were addressing each other
with the names like, "Ram Singh, Thakur, Raju, Mukesh, Pawan
and Vinay". In the second dying declaration, though there are
improvements in giving details of the incident, names of the B
accused etc., there are no material contradictions between the
first and second dying declaration. On 25.12.2012 at 1:00 P.M,
PW-30, Metropolitan Magistrate recorded the statement by
putting multiple choice questions to the victim and by getting
answers through gestures and writing. The third dying declaration
is found consistent with the earlier two declarations. It C
conclusively established that the victim was brutally gang-raped,
beaten by iron rod, subjected to other harsh atrocities and was
finally dumped at an unknown place. While making the third
declaration, the victim also tried to reveal the names of the
accused by writing in her own handwriting. [Para 31, 35 and D
36)(263-E-G; 264-H; 265-A-F]
     Vi that v. State of Maharashtra [2006] 8 Suppl. SCR 234
     : (2006) 13 SCC 54; Amo/ Singh v. State of Madhya
     Pradesh [2008] 8 SCR 956 : (2008) 5 SCC 468;
     Ganpat Mahadeo Mane v. State of Maharashtra (1993)
     Supp.(2) sec 242; Lakhan V. State of M.P [2010) 9              E
     SCR 705 : (2010) 8 SCC 514 - relied on.
      2.4 When a dying declaration is recorded voluntarily,
pursuant to a fitness report of a certified doctor, nothing much
remains to be questioned unless, it is proved that the dying
declaration was tainted with animosity and a result of tutoring.    F
Especially, when there are multiple dying declarations minor
variations does not affect the evidentiary value of other dying
declarations whether recorded prior or subsequent thereto.
Though there was time gap between the declarations, all the three
dying declarations were consistent with each other and there were   G
no material contradictions. [Paras 38, 39)(266-D, G-H]
      Abrar v. State of Uttar Pradesh [2010] 13 SCR 1217 :
      (2011) 2 SCC 750; Ashabai and Anr. v. State of
      Maharashtra [2013) 1 SCR 115 : (2013) 2 SCC 224 -
      relied on.                                                    H
40           SUPREME COURT REPORTS                     [2017] 6 S.C.R.


A         2.5 Dying Declaration by gestures and nods: As regards
   the contention that the third dying declaration made through
   gestures lacks credibility, it is seen that the multiple choice
   questions put to the prosecutrix by PW-30, MM were simple
   and easily answerable through nods and gestures. That apart,
    before recording the dying declaration, PW-30 had satisfied
B
    himself about fit mental state of the victim to record dying
    declaration through nods and gestures. There was nothing on
    record to show that the mental capacity of the victim was impaired,
    so as to doubt the third dying declaration. As the victim was
    conscious, oriented and meaningfully communicative, it is natural
c that the victim was in a position to write the names of the accused
    persons and also about the use of long iron rod. The third dying
    declaration recorded through nods and gestures and also by the
    victim's own writing, writing the names of the accused inspires
    confidence in the Court; the same was rightly relied upon by the
D trial Court as well as the High Court. [Para 40)(267-C-D]
          Meesala Ramakrishan v. State of A.P (1994) 4 SCC
          182; B. Shashika/a v. State of A.P. [2004) 1 SCR 940 :
          (2004) 13 sec 249 - relied on.
          2.6 Corroboration of Dying declaration by Medical
    Evidence:- Injuries to vagina, rectum and recto-vaginal septum
E
    as noted by PW-49 and PW-50; and the injuries as depicted in the
    post-mortem certificate, including the other external injuries
    which are evidently marks of violence during the incident, exhibit
    the cruel nature of gang rape committed on the victim. The
    profused bleeding from vagina and tag of vagina hanging outside;
F completely recto-vaginal septum clearly demonstrate the violent
    act of gang rape committed on the victim. The medical reports
    including the operation theatre notes and the injuries thereon
  · indicates the pain and suffering which the victim had undergone
    due to multiple organ failure and other injuries caused by insertion
G of iron rod. If considered on the anvil of settled legal principles,
    injuries on the person of a rape victim is not even a sine qua non
    for proving the charge of rape. In the present case, the extensive
    injuries found on the vagina/private parts of the body of the victim
    and injuries caused to the internal organs and all over the body,
    clearly show that the victim was ravished.[Paras 46, 47](269-F-
H H; 270-A-C]
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                       41



     Joseph v. State of Kera/a [2000) 3 SCR 729 : (2000) 5              A
     SCC 197; State ofMaharashtra v. Suresh [1999) 5 Suppl.
     SCR 215 : (2000) 1 SCC 471; State of Rajas than v.
     N.K., The Accused [2000) 2 SCR 818 : (2000) 5 SCC
     30 - relied on.
      2. 7 Corroboration of dying declaration by scientific             B
evidence:- The DNA profiles generated from the clothes of the
accused recovered at their behest consistent with that of the
victim was an unimpeachable evidence incriminating the accused
in the occurrence. There was no plausible explanation from the
accused as to the matching of DNA profile of the victim with that       C
of the DNA profile generated from the clothes of the accused.
The courts below rightly took note of the DNA analysis report in
finding the accused guilty. [Para 48) [270-C-E)
      3. Bite marks on the chest of the victim and Odontology
Report: The photographs of bite marks found on the body of the
victim, lifted by PW-66 were examined by PW-71. The analysis D
shows that at least three bite marks were caused by A-1 whereas
one bite mark was identified to have been most likely caused by
A-3. Odontology Report which links A-1 and A-3, with the case,
strengthens the prosecution case as to their involvement. The
dying declarations well corroborated by medical and scientific E
evidence strengthened the case of the prosecution by conclusively
connecting accused with the crime. [Paras 49, 50)(270-F-H; 271-
C-D]
      4. Use of Iron Rod and death of the victim:
       Contention of the appellants is that when the victim had         F
given details of the entire incident to PW-49 in her first statement,
if iron rod had been used, she would not have omitted to mention
the use of iron rods in the incident. There is no force in such a
contention, as ample reliable evidence are proved on record which
lead to the irresistible conclusion that iron rod was used and it       G
was not a mere piece of concoction. Insertion of iron rod in the
private parts of the prosecutrix is amply established by the nature
of multiple injuries caused to jejunum and rectum which was
longitudinally torn, tag of vagina hanging out; and completely torn
recto-vaginal septum.At the behest of A-1, two iron rods were
                                                                        H
42           SUPREME COURT REPORTS                     (2017] 6 S.C.R.


A    recovered from the shelf of the driver's cabin vide seizure Memo.
     The blood-stained rods deposited in the Malkhana were
     thereafter sent for chemical analysis. The DNA report prepared
     by PW-45 indicates that the DNA profile developed from the
     blood-stained iron rods is consistent with the DNA profile of the
     victim. Presence of blood on the iron rods and the DNA profile
B
     of which is consistent with the DNA profile of the victim
     establishes the prosecution case as to the alleged use of iron
     rods in the incident. [Paras 51, 52 and 53][271-D, E-F; 272-B-D]
           5. Evidence of PW-1:
c          5.1 The deposition of PW-1 even after lengthy cross
     examination, remained unshaken. PW-1 clearly explained as to
     how he happened to be with the victim and considering the cogent
     evidence adduced by the prosecution, presence of PW-1 cannot
     be doubted in any manner. PW-1 himself was injured in the
     incident and he was admitted in the Casualty Ward, where PW-51
D    examined him. As per Ex.PW-51/A, lacerated wound over the
     vertex of scalp, lacertated wound over left upper lip and abrasion
     over right knee were found on the person of PW-1. Testimony of
     PW-1 being testimony of an injured witness lends credibility to
     his evidence and prosecution's case. Thus, no convincing
E    grounds existed to discard the evidence of PW-1, an injured
     witness. [Para 57][273-E-G]
           Mano Dutt and Am'. v State of Uttar Pradesh [2012] 3
           SCR 686 : (2012) 4 SCC 79 - relied on.
           5.2 Any minor discrepancies or improvements not touching
F    the core of the prosecution case and not going to the root of the
     matter, does not affect the trustworthiness of the witness. There
     are some improvements in version of PW-1 but, the core of his
     version as to the occurrence remained consistent. More so, when
     PW-1 and the victim fa,1:cd such a traumatic experience,
G    immediately after the incident, they cannot be expected to give
     minute details of the incident. It would have taken some time for
     them to come out of the shock and recollect the incident and
     give a detailed version of the incident. The statements of PW-1
     recorded on various dates are not contradictory to each other.

H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                    43



The subsequent statements though are more detailed as A
compared to the former ones, in the circumstances of the case, it
cannot be said to be unnatural affecting the trustworthiness of
PW-l's testimony. There is hardly any justification for doubting
the evidence of PW-1, especially when it is corroborated by
recovery of PW-l's articles from the accused and scientific B
evidence. The trial court as well as the High Court found PW-1 's
evidence credible and trustworthy and there is no reason to take
a different view. Further, the evidence of PW-1 is amply
strengthened by scientific evidence and recovery of the
incriminating articles from the accused. The alleged omissions
and improvements in the evidence of PW-1 pointed out by the C
defence did not materially affect the evidence of PW-1. [Paras
64, 65)[277-E-H; 278-A-B]
      Kathi Bharat Vajsur And Am'. v. State of Gujarat [2012]
      5 SCR 850 : (2012) 5 SCC 724; Pudhu Raja and Am'.
      v. State Rep. by Inspector of Police [2012] 8 SCR 740          D
      : (2012) 11 SCC 196; Jaswant Singh v. State of Hm:vana
      [2000] 2 SCR 903 : (2000) 4 SCC 484; Akhtar and
      Ors. v. State of Uttaranchal [2009] 5 SCR 771 : (2009)
      13 sec 722 - relied on.
     6. Recovery of the bus and its Involvement in the incident:     E
      6.1 The recovery of the bus (Ex.P-1) and evidence of PW-
81, owner of the bus led to a breakthrough in the investigation
that A-1 was the driver of the bus and A-3 was the cleaner of the
bus. By adducing the evidence of PW-81 and PW-16, the
prosecution established that the bus in question was routinely       F
driven by A-1 and A-3 was the helper in the bus. The DNA profile
of material objects lifted from the bus were found consistent with
that of the victim and the complainant. Matching of the DNA
profile developed from the articles seized from the bus like hair
recovered from the third row of the bus on'the left side with the
DNA profile of PW-1, strengthened the prosecution case as to         G
the involvement of the offending bus. DNA profile developed
from the blood-stained curtains of the bus and blood-stained seat
covers of bus and the bunch of hair recovered from the floor of
the bus below sixth row matched with the DNA profile of the
                                                                     H
44           SUPREME COURT REPORTS                     [2017] 6 S.C.R.


A victim. The evidence of DNA analysis is an unimpeachable
  evidence as to the involvement of the offending bus in the
  commission of offence and also strong unimpeachable evidence
  connecting the accused with the crime. The accused neither
  rebutted this evidence nor offered any convincing explanation
  except making feeble attempt by stating that everything· was
B
  concocted. A finger print expert report states that the chance
  print lifted from the bus being identical with the finger print of A-
  4 established the presence of A-4 in the bus, thereby
  strengthening prosecution case. [Paras 68, 69 and 70][279-A-B,
  E-G; 280-A-B]
c         7. Arrest and Recovery under Section 27 of the Indian
     Evidence Act:
        7.1 Prosecution very much relied upon disclosure
  statements of the accused, pursuant to which articles of the victim
  and also of PW-1 were recovered. Accused being in possession
D of the articles of the victim and that of PW-1, is a militating
  circumstance against the accused and it is for the accused to
  explain as to how they came in possession of these articles.
  Recovery of belongings of PW-1 and that of the victim, at the
  instance of the accused is a relevant fact duly proved by the
E prosecution. Notably the articles recovered from the accused
  thereto have been duly identified by the complainant in test
  identification proceedings. Recovery of articles of complainant
  (PW-1) and that of the victim at the behest of accused is a strong
  incriminating circumstance implicating the accused. As rightly
  pointed out by the Courts below, the accused did not offer any
F cogent or plausible explanation as to how they came in possession
  of those articles. (Paras 71, 72][280-B-C; 283-B-C]
        7.2 Similarly, the Indian bank debit card recovered at the
  behest of A-1 and Nokia mobile phone recovered at the behest
  of A-4 were proved to be used by the prosecutrix. PW-75 mother
G of the victim in her testimony stated that the Debit card belonged
  to her and that the same was in the possession of her daughter.
  Nokia mobile phone is stated to be the mobile used by the victim.
  The articles of the prosecutrix recovered from the accused were
  proved by the evidence of PW-75 (mother of the victim) and the
H same was not controverted by the defence. Section 25 of the
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                    45



Evidence Act speaks of a confession made to a police officer, A
which shall not be proved as against a person accused of an offence.
Section 26 of the Evidence Act also speaks that no confession
made by the person whilst he is in the custody of a police officer,
unless it be made in the immediate presence of a Magistrate,
shall be proved as against such person. Sections 25 and 26 of B
the Evidence Act put a complete bar on the admissibility of a
confessional statement made to a police officer or a confession
made in absentia of a Magistrate, while in custody. Section 27 of
the Evidence Act is by way of a proviso to Sections 25 and 26 of
the Evidence Act and a statement even by way of confession made
in police custody which distinctly relates to the fact discovered is c
admissible in evidence against the accused. Section 27 is based
on the view that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the
information is true and is a relevant fact and accordingly it can be
safely allowed to be given in evidence. Section 27 has prescribed
                                                                     D
two limitations for determining how much of the information
received from the accused can be proved against him: (i) The
information must be such as the accused has caused discovery of
the fact, i.e. the fact must be the consequence, and the information
the cause of its discovery; (ii) The information must 'relate
distinctly' to the fact discovered. Both the conditions must be E
satisfied. [Paras 73, 74, 75][283-D-H; 284-C-D]
      7.3 Even though, the arrest and recovery under Section
27 of the Evidence Act is often sought to be misused, the courts
cannot be expected to completely ignore how crucial are the
recoveries made under Section 27 in an investigation. The            F
legislature while incorporating Section 27, as an exception to
Sections 24, 25 and 26 of the Evidence Act, was convinced of the
quintessential purpose Section 27 would serve in an investigation
process. The recovery made under Section 27 of the Evidence
Act not only acts as the foundation stone for proceeding with an
investigation, but also completes the chain of circumstances. Once   G
the recovery is proved by the prosecution, burden of proof on
the defence to rebut the same is very strict, which cannot be
discharged merely by pointing at procedural irregularities in
making the recoveries, especially when the recovery is
                                                                     H
46           SUPREME COURT REPORTS                      [2017] 6 S.C.R.


A    corroborated by direct as well as circumstantial evidence,
     especially when the investigating officer assures that failure in
     examining independent witness while making the recoveries was
     not a deliberate or ma/a fide, rather it was on account of
     exceptional circumstances attending the investigation process.
     [Paras 77] [285-E-H]
B
            7.4 The need of examining independent witnesses, while
     making recoveries pursuant to the disclosure statement of the
     accused is a rule of caution evolved by the Judiciary, which aims
     at protecting the right of the accused by ensuring transparency
     and credibility in the investigation of a criminal case. In the
c    present case, PW-80 SI deposed in her cross-examination that
     no independent person had agreed to become a witness and in
     the light of such a statement, there is no reason for the courts to
     doubt the version of the police and the recoveries made. When
     recovery is made pursuant to the statement of accused, seizure
D    memo prepared by the Investigating Officer need not mandatorily
     be attested by independent witnesses. Thus, recoveries made
     pursuant to disclosure statement of the accused are duly proved
     by the prosecution and there is no substantial reason to discard
     the same. Recovery of articles of PW-1 and also that of victim at
     the instance of the accused is a strong incriminating evidence
E    against accused, especially when no plausible explanation is
     forthcoming from the accused. Further, the scientific examination
     of the articles recovered completely place them in line with the
     chain of events described by the prosecution. [Paras 79, 80,
     82)[286-C-D; 287-C-D]
F          Anter Singh v. State of Rajasthan [2004) 2 SCR 123 :
           (2004) 10 sec 657; Geejaganda Somaiah V. State of
           Karnataka [2007) 3 SCR 899: (2007) 9 SCC 315; State
           Govt. of NCT of Delhi v. Sunil and Another [2000) 5
           Suppl. SCR 144 : (2001) 1 SCC 652; Pulukuri Kottaya
G          v. King-Emperor AIR 1947 PC 67; State (NCT of Delhi)
           v. Navjot Sandhu alias Afsan Guru [2005] 2 Suppl. SCR
           79 : (2005) 11 sec 600 - relied on.
           8. DNA Analysis:
           8.1. DNA - De-oxy-ribonucleic acid, which is found in the
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                     47


chromosomes of the cells of living beings, is the blueprint of an A
individual. DNA is the genetic blue print for life and is virtually
contained in every cell. No two persons, except identical twins
have ever had identical DNA. DNA profiling is an extremely
accurate way to compare a suspect's DNA with crime scene
specimens, victim's DNA on the blood-stained clothes of the
                                                                       B
accused or other articles recovered, DNA testing can make a
virtually positive identification when the two samples match. A
DNA finger print is identical for every part of the body, whether
it is the blood, saliva, brain, kidney or foot on any part of the
body. It cannot be changed; it will be identical no matter what is
done to a body. Even relatively minute quantities of blood, saliva c
or semen at a crime scene or on clothes can yield sufficient material
for analysis. The Experts opine that the identification is almost
hundred per cent precise. Using this i.e. chemical structure of
genetic information by generating DNA profile of the individual,
identification of an individual is done like in the traditional method
of identifying finger prints of offenders. Finger prints are only on
                                                                       D
the fingers and at times may be altered. Burning or cutting a
finger can change the make of the finger print. But DNA cannot
be changed for an individual no matter whatever happens to a
body. [Para 85)(291-B-E]
      Advanced Law Lexicon, 3rd Edition Reprint 2009 by P.            E
      Ramanatha Aiyar - referred to.
      8.2 DNA evidence is now a predominant forensic technique
for identifying criminals when biological tissues are left at the
scene of crime or for identifying the source of blood found on any
articles or clothes etc. recovered from the accused or from           F
witnesses. DNA testing on samples such as saliva, skin, blood,
hair or semen not only helps to convict the accused but also serves
to exonerate. The sophisticated technology of DNA finger
printing makes it possible to obtain conclusive results. Section
53A Cr.P.C. is added by the Code of Criminal Procedure                G
(Amendment) Act, 2005. It provides for a detailed medical
examination of accused for an offence of rape or attempt to commit
rape by the registered medical practitioners employed in a
hospital run by the Government or by a local authority or in the
absence of such a practitioner within the radius of 16 kms. from
                                                                      H
48            SUPREME COURT REPORTS                        [2017) 6 S.C.R.


A    the place where the offence has been committed by any other
     registered medical practitioner. From the evidence of PW-45
     and the details given in the above tabular form, it is seen that the
     DNA profile generated from blood-stai.ned clothes of A-1; A-2;
     A-3; A-4; and A-5 were consistent with the DNA profile of the
     prosecutrix. The result of DNA analysis and that of the DNA
B
     profile generated from blood-stained clothes of the accused found
     consistent with that of the victim is a strong piece of evidence
     incriminating the accused in the offence. In his evidence, PW-
     45 stated that once DNA profile is generated and found consistent
     with another DNA profile, the accuracy is hundred per cent and
c    there is no reason to doubt his evidence. The DNA report and
     the findings thereon, being scientifically accurate clearly establish
     the link involving the accused persons in the incident. [Paras
     87, 89, 91][292-C-D; 294-B, D-E, G-H; 295-A-B)
           Santosh Kumar Singh v. State through CBI [2010] 13
D          SCR 901 : (2010) 9 SCC 747 - relied on.
           Advanced Law Lexicon, 3'd Edition Reprint 2009 by P.
           Ramanatha Aiyar - referred to.
           9. Conspiracy:
E           9.1 The essentials of the offence of conspiracy and the
     manner in which it can be proved. Meeting of minds for committing
     an illegal act is sine qua non of the offence of conspiracy. It is also
     obvious that meeting of minds, thereby resulting in formation of
     a consensus between the parties, can be a sudden act, spanning
     in a fraction of a minute. It is neither necessary that each of the
F    conspirators take active part in the commission of each and every
     conspiratorial act, nor it is necessary that all the conspirators
     must know each and every details of the conspiracy. The most
     important aspect of the offence of conspiracy is that apart from
     being a distinct statutory offence, all the parties to the conspiracy
G    are liable for the acts of each other and as an exception to the
     general law in the case of conspiracy intent i.e. mens rea alone
     constitutes a crime. As per Section 10 of the Evidence Act, once
     reasonable ground is shown for believing that two or more
     persons have conspired to commit an offence then, anything done
     by any one of them in reference to their common intention, is
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                       49


admissible against the others. Another significant aspect of the        A
offence of criminal conspiracy is that it is very rare to find direct
proof of it, because of the very fact that it is hatched in secrecy.
Unlike other offences, criminal conspiracy in most of the cases is
proved by circumstantial evidence only. It is extremely rare that
direct evidence in proof of conspiracy can be forthcoming from          B
wholly disinterested, quarters or from utter strangers. Conspiracy
is a matter of inference, deduced from words uttered, criminal
acts of the accused done in furtherance of conspiracy. [Paras 94,
96, 98)[295-E-F; 296-D-E; 297-B]
      Major E.G Barsay v. State of Bombay [1962) 2 SCR
      195; State of Maharashtra v. Damu and Others (2000)               c
      6 SCC 269; Shivnarayan Laxminarayan Joshi and Ors.
      v. State of Maharashtra (1980) 2 SCC 465; Mohammad
      Usman Mohammad Hussain Maniyar and Ors. v. State
      of Maharashtra [1981] 3 SCR 68: (1981) 2 SCC 443;
      Kehar Singh and Ors. v. State (Delhi Administration)              D
      [1988] 2 Suppl. SCR 24 : (1988) 3 SCC 609; State of
      Maharashtra and Ors. v. Som Nath Thapa and Ors.
      [1996) 1 Suppl. SCR 189 : (1996) 4 SCC 659; State
      (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru (2005)
      11 SCC 600; State Through Superintendent of Police,
      CBI/SIT v. Nalini and Ors. (1999) 5 SCC 253; Yakub                E
      Abdul Razak Menon v. The State of Maharashtra,
      through CBI, Bombay [2013) 15 SCR l : (2013) 13
      SCC 1; Noor Mohammad Mohd. Yusuf Momin v. State
      of Maharashtra [1971) 1 SCR 119 : (1970) 1 SCC 696;
      Firozuddin Basheeruddin and Ors. v. State of Kera/a               F
      (2001) 7 SCC 596; Ram Narain Poply v. Central Bureau
      of Investigation and Ors. [2003] 1 SCR 119 : (2003) 3
      SCC 641; Yogesh@ Sachin Jagdish Joshi v. State of
      Maharashtra [2008) 6 SCR 1116: (2008) 10 SCC 394;
      Pratapbhai Hamirbhai Solanki v. State of Gujarat and
      Am: [2012) 9 SCR 561 : (2013) 1 SCC 613; Chandra                  G
      Prakash v. State of Rajasthan [2014) 6 SCR 819 :
      (2014) 8 SCC 340; Yogesh @ Sachin Jagdish Joshi v.
      State of Maharashtra [2008) 6 SCR 1116 : (2008) 10
      sec 394 - relied on.
                                                                        H
50          SUPREME COURT REPORTS                     [2017) 6 S.C.R.


A        KENNY on Outlines of Criminal law, 19th Edn., pp.
         426-427 - referred to.
         9.2 Jn the present case, there was ample evidence proving
  the acts, statements and circumstances, establishing firm ground
  to hold that the accused who were present in the bus were in
B prior concert to commit the offence of rape. The prosecution
  established that the accused were associated with each other.
  The criminal acts done in furtherance of conspiracy was
  established by the sequence of events and the conduct of the
  accused. Existence of conspiracy and its objects could be inferred
  from the chain of events. In this case, the existence of conspiracy
c is sought to be drawn by an inference from the circumstances: (i)
  the accused did not allow any other passenger to board the bus
  after PW-1 and the prosecutrix boarded the bus; (ii) switching off
  the lights; pinning PW-1 down by some while others commit rape/
  unnatural sex with the prosecutrix at the rear side of the bus;
D (iii) exhortation by some of the accused that the victim be not left
  alive; and (iv) their act of throwing the victim and PW-1 out of the
  running bus without clothes in the wintery night of December.
  The courts below rightly drew an inference that there was prior
  meeting of minds among the accused and they rightly held that
  the prosecution has proved the existence of conspiracy to commit
E gang rape and other offences. [Paras 100, 101]1297-G-H; 298-A-
  B, E-F)
          Ashok Kumar v. State of Haryana (2003) 2 SCC 143 -
          relied on.
F       9.3 Jn achieving the goal of the conspiracy, several offences
  committed by some of the conspirators may not be known to
  others, still all the accused will be held guilty of the offem;e of
  criminal conspiracy. Use of iron rod by one or more of the accused
  is sufficient to inculpate all the accused for the same. In the
  present case, gang rape and use of iron rod caused grave injuries
G to victim's vagina and intestines; throwing her out of the bus in
  that vegetative state in chilled weather led to her death; all this
  taking place in the course of same transaction and with the active
  involvement of all the accused is more than sufficient evidence
  to find the accused guilty of criminal conspiracy. The findings of
H the courts below with regard to conviction of all the accused under
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                  51



Section 120-B IPC and Section 302 read with Section 120-B IPC      A
is affirmed. [Para 102][298-G-H; 299-A-C]
      9.4 Gang rape is dealt with in clause (g) of sub-section (2)
of Section 376 IPC read with Explanation 1. As per Explanation
I to Section 376 IPC, "where a woman is raped by one or more in
a group of persons acting in furtherance of their common intention, B
each of the persons shall be deemed to have committed gang
rape" and all of them shall be liable to be punished under sub-
section (2) of Section 376 IPC. As per Explanation I, by operation
of deeming provision, a person who has not actually committed
rape is deemed to have committed rape even if only one of the
groups has committed rape in furtherance of the common
                                                                    c
intention. So far as the offence under Section 376 (2)(g) IPC,
the sharing of common intention and the jointness in commission
of rape is concerned, the same is established by the presence of
all the accused in the bus; their action in concert as established
by the dying declaration of the prosecutrix and the··~vidence of D
PW-1, presence of blood in the clothes of all the accused, DNA
profile generated thereon being consistent with the DNA profile
of the victim. The prosecution established the presence of the
accused in the bus and the heinous act of gang rape committed
on the prosecutrix by the accused by the ample evidence - by
the multiple dying declaration of the victim and also by the E
evidence of PW-1 and medical evidence and also by arrest and
recovery of incriminating articles of the victim and that of PW-1
complainant. The scientific evidence in particular DNA analysis
report clearly brought home the guilt of the accused. [Paras 103,
104, 105][299-E; 300-C-E]                                           F
      10.   Section 235(2), Criminal Procedure Code:
      10.1 Section 235 Cr.P.C. deals with the judgments of
acquittal or conviction. Under Section 235(2) Cr.P.C., where the
accused is convicted, save in cases of admonition or release on
good conduct, the Judge shall hear the accused on the question G
of sentence and then pass sentence in accordance with law.
Section 235(2) Cr.P.C. imposes duty on the court to hear the
accused on the question of sentence and then pass sentence on
him in accordance with law. The only exception to the said rule is
created in case of applicability of Section 360 Cr.P.C. i.e. when 1-1
52           SUPREME COURT REPORTS                   [2017] 6 S.C.R.


A the court finds the accused eligible to be released on probation
  of good conduct or after admonition. Section 354 Cr.P.C. specifies
  the language and contents of judgment, while delivering the
  judgment in a criminal case. Section 354(3) Cr.P.C. deals with
  judgments where conviction is for an offence punishable with death
  penalty or in the alternative with imprisonment for life. Section
B
  354(3) Cr.P.C. mandates 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 for such sentence. The·
c statutory duty to state special reasons under Section 354(3)
  Cr.P.C. can be meaningfully carried out only if the hearing on
  sentence under Section 235(2) Cr.P.C. is effective and
  procedurally fair. To afford an effective opportunity to the
  accused, the Court must hear on the question of sentence to
D know about (i) age of the accused; (ii) background of the accused;
  (iii) prior criminal antecedents, if any; (iv) possibility of
  reformation, if any; and (v) such other relevant factors. The major
  deficiency in the complex criminal justice system is that important
  factors which have a bearing on sentence are not placed before
  the Court. Resultantly, the Courts arc constantly faced with the
E dilemma to impose an appropriate sentence. In this context,
  hearing of the accused under Section 235(2) Cr.P.C. on the
  question of sentencing is a crucial exercise which is intended to
  enable the accused to place before the Court all the mitigating
  circumstances in his favour viz. his social and economic
   backwardness, young age etc. The mandate of Section 235(2)
F Cr.P.C. becomes more crucial when the accused is found guilty
   of an offence punishable with death penalty or with the life
   imprisonment. [Paras 106, 108, 109, 110)[300-E-F; 301-D-H;
   302-A-B]
           10.2     It is well-settled that Section 235(2) Cr.P.C. is
G    intended to give an opportunity of hearing to the prosecution as
     well as the accused on the question of sentence. The Court while
     awarding the sentence has to take into consideration various
     factors having a bearing on the question of sentence. In case,
     Section 235(2) Cr.P.C. is not complied with, as held in Dagdu's
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                   53


case, the appellate Court can either send back the case to the     A
Sessions Court for complying with Section 235(2) Cr.P.C. so as
to enable the accused to adduce materials; or, in order to avoid
delay, the appellate Court may by itself give an opportunity to
the parties in terms of Section 235(2) Cr.P.C. to produce the
materials they wish to adduce instead of sending the matter back
                                                                    B
to the trial Court for hearing on sentence. In the present case,
the latter course is adopted.[Para 111 ][302-C-EJ
      10.3 A-2 in his affidavit stated that he was picked up from
his house at Karoli, Rajasthan and brought to Delhi and reiterated
that he is innocent and he denied his involvement in the
occurrence. In their affidavits, A-3, A-4 and A-5 submitted in their c
individual affidavits stated that they hail from an ordinary/ poor
background and are not much educated. They also stated that
they have aged parents and other family members who are
dependent on them and they are to be supported by them.
Accused also stated that they have no criminal antecedents and D
that after their confinement in Tihar Jail they have maintained
good behavior. Question of awarding sentence is a matter of
discretion and has to be exercised on consideration of
circumstances aggravating or mitigating in the individual cases.
The courts are consistently faced with the situation where they
are required to answer the new challenges and mould the E
sentence to meet those challenges. Protection of society and
deterring the criminal is the avowed object of law. It is expected
of the courts to operate the sentencing system as to impose such
sentence which reflects the social conscience of the society. While
determining sentence in heinous crimes, Judges ought to weigh F
its impact on the society and impose adequate sentence
considering the collective conscience or society's cry for justice.
While considering the imposition of appropriate punishment,
courts should not only keep in view the rights of the criminal but
also the rights of the victim and the society at large. [Paras 112,
116][302-G-H; 303-A-B, E-G)                                          G

      11. Whether the Case falls under rarest of rare cases:
      11.1 While closing the shutter of deterrent approach of
sentencing in India, the small window of 'award of death sentence'
was left open in the category of 'rarest of rare case' in *Bachan H
54            SUPREME COURT REPORTS                      [2017] 6 S.C.R.



 A Singh by a Constitution Bench of this Court. The principles laid
   down in *Bachan Singlt's case is that, normal rule is awarding of
   'life sentence', imposition of death sentence being justified, only
   in rarest of rare case, when the option of awarding sentence of
   life imprisonment is unquestionably foreclosed'. By virtue of
   Bachan Singh, 'life imprisonment' became the rule and 'death
 B
   sentence' an exception. The focus was shifted from 'crime' to
   the 'crime and criminal' i.e. now the nature and gravity of the
   crime needs to be analysed juxtaposed to the peculiar
   circumstances attending the societal existence of the criminal.
   [Paras 119, 120][304-E-F, G; 305-B)
 c         State of M.P. v. Munna Choubey and Anr. [2005] 1
           SCR 781 : (2005) 2 SCC 710; Jashubha Bharatsinh
           Gohil and Ors. v. State of Gujarat (1994) 4 SCC 353;
           Jagmohan Singh v. State of U.P. (1973] 2 SCR 541 :
           (1973) 1 SCC 20; Rajendra Prasad v. State of U.P.
 D         [1979) 3 SCR 646; *Bachan Singh v. State of Punjab
           (1980) 2 sec 684 - relied on.
          11.2 A milestone in the sentencing policy is the concept of
   'life imprisonment till the remainder of life' evolved in **Swamy
   Shradltananda (2). In this case, a man committed murder of his
 E wife for usurping her property in a cold-blooded, calculated and
   diabolic manner. The three-Judge Bench, was of the view that
   even though the murder was diabolic, presence of certain
   circumstances in favour of the accused, viz. no mental or physical
   pain being inflicted on the victim, confession of the accused before
   the High Court etc., made them reluctant to award death sentence.
 F However, the Court also realised that award of life imprisonment,
   which euphemistically means imprisonment for a term of 14 years
   (consequent to exercise of power of commutation by the
   executive), would be equally disproportionate punishment to the
   crime committed. Hence, in Swamy Shradhananda (2) the Court
·G directed that the accused sit all not be released from tlte prison till
   the rest of !tis life. [Para 123) [309-D-G]
           **Swamy Shradhananda alias Murali Manohar Mishra
           (2) v. State of Karnataka [2008) 11 SCR 93 : (2008)
           13 SCC 767; Ramnaresh and Ors. v. State of
 H         Chhattisgarh (2012) 4 SCC 257; Sangeet and Another
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.               55


     v. State of Haryana [2012] 13 SCR 85 : (2013) 2 SCC        A
     452; Holiram Bordoloi v. State of Assam (2005] 3
     SCR 406 : (2005) 3 SCC 793 ; Ankush Maruti Shinde
     and Ors. v. State of Maharashtra [2009] 7 SCR 182 :
     (2009) 6 SCC 667; Kamta Tiwari v. State of Madhya
     Pradesh (1996) 5 Suppl. SCR 507 : (1996) 6 SCC
                                                                B
     250; State of U.P. v. Satish [2005] 2 SCR 1132 : (2005)
     3 SCC 114; Sundar alias Sundarajan v. State by
     Inspector of Police and Am: (2013) 4 SCR 25 : (2013)
     3 sec 215; Sevaka Perumal and Ai11: V. State of Tamil
     Nadu [1991) 2 SCR 711: (1991) 3 SCC 471; Moh.fit
     Khan and Am: v. State of Jharkhand (2014) 10 SCR 812       c
     : (2015) l SCC 67 - relied on.
     Swamy Shradhananda v. State of Karnataka (2007) 12
     sec 282 - referred to.
      11.3 As dealing with sentencing, courts have applied the
"Crime Test", "Criminal Test" and the "Rarest of the Rare Test", D
the tests examine whether the society abhors such crimes and
whether such crimes shock the conscience of the society and
attract intense and extreme indignation of the community. Courts
have further held that where the victims are helpless women,
children or old persons and the accused displayed depraved E
mentality, committing crime in a diabolic manner, the accused
should be shown no remorse and death penalty should be awarded.
[Para 126)(312-G-H; 313-A-B)
     Molai & Anr. v. State of M.P. [1999] 4 Suppl. SCR
     104: (1999) 9 SCC 581; Bantu v. State of Uttar             F
     Pradesh (2008) 11 SCR 184 : (2008) 11 SCC 113;
     Ankush Maruti Shinde and Ors. v. State of Maharashtra
     (2009) 7 SCR 182 : (2009) 6 SCC 667; Mehboob
     Batcha and Ors. v. State rep. by Supdt. of Police [2011)
     3 SCR 1091 : (2011) 7 SCC 45; Mohd. Mannan @
     Abdul Mannan v. State of Bihar [2011) 5 SCR 518 :          G
     (2011) 5 SCC 317; Shivaji @ Dadya Shankar A/hat v.
     State of Maharashtra [2008] 13 SCR 81 : (2008) 15
     sec 269; Rajendra Pralhadrao Wasnik V. The State of
     Maharashtra [2012) 2 SCR 225 : (2012) 4 SCC 37;
     Dhananjoy Chatte1jee alias Dhana v. State of WB.           H
56           SUPREME COURT REPORTS                     [2017] 6 S.C.R.


A          [19941 1 SCR 37 : (1994) 2 SCC 220; Shankar
           Kisanrao Khade v. State of Maharashtra [20131
           6 SCR 949 : (2013) 5 SCC 546 - relied on.
           11.4 Even the young age of the accused is not a mitigating
     circumstance for commutation to life. [Para 127)(313-C-D)
B          Bhagwan Swarup v. State of U.P. [19701 3 SCR 495:
           (1971) 3 SCC 759; Deepak Rai v. State of Bihar [2013)
           14 SCR 297 : (2013) to sec 421; Shabhnam V. State
           of Uttar Pradesh [20151 9 SCR 943: (2015) 6 SCC
           632 - relied on.
c        11.5 Another significant development in the sentencing
  policy of India is the 'victim-centric' approach, clearly recognised
  in ***Mach/ii Singh and re-emphasized in a plethora of cases. It
  has been consistently held that the courts have a duty towards
  society and that the punishment should be corresponding to the
D crime and should act as a soothing balm to the suffering of the
  victim and their family. The Courts while considering the issue
  of sentencing are bound to acknowledge the rights of the victims
  and their family, apart from the rights of the society and the
  accused. The agony suffered by the family of the victims cannot
  be ignored in any case. The nature and the manner of the act
E committed by the accused, and the effect it casted on the society
  and on the victim's family, are to be weighed against the mitigating
  circumstances stated by the accused and the scope of their reform,
  so as to reach a definite reasoned conclusion as to what would be
  appropriate punishment in the present case- 'death sentence',
F life sentence commutable to 14 years' or 'life imprisonment for the
  rest of the life'. [Paras 137, 138)320-A-B, C-D; 320-E-F[
          Gurvail Singh@ Gala and A111: v. State of Punjab [2013)
          I SCR 783 : (2013) 2 SCC 713; Mohfil Khan and A111:
          v. State of Jharkhand [20141 10 SCR 812 : (2015) 1
G         SCC 67; ***Machhi Singh and Ors. v. State of
          Punjab [19831 3 SCR 413: (1983) 3 SCC 470 - relied
          on.
           11.6 The question would be whether the present case could
     be one of the rarest of rare cases warranting death penalty. The
H    court is to draw up a balance-sheet of aggravating and mitigating
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                       57



circumstances attending to the commission of the offence and A
then strike a balance between those aggravating and mitigating
circumstances. Two questions are to be asked and answered:- (i)
Is there something uncommon about the crimes which regard
sentence of imprisonment for life inadequate; (ii) Whether there
is no alternative punishment suitable except death sentence.
                                                                          B
Where a crime is committed with extreme brutality and the
collective conscience of the society is shocked, courts must award
death penalty, irrespective of their personal opinion as regards
desirability of death penalty. By not imposing a death sentence
in such cases, the courts may do injustice to the society at large.
The act was committed in connivance and collusion of six who c
were on a notorious spree running a bus, showcasing as a public
transport, with the intent of attracting passengers and committing
crime with them. The victim and her friend were picked up from
the Munirka bus stand with the ma/a fide intent of ravishing and
 torturing her. The accused not only abducted the victim, but gang-
                                                                          0
 raped her, committed unnatural offence by compelling her for
 oral sex, bit her lips, cheeks, breast and caused horrifying injuries
 to her private parts by inserting iron rod which ruptured the
 vaginal rectum, jejunum and rectum. The diabolical manner in
 which crime was committed leaves one startled as to the pervert
 mental state of the intlictor. On top of it, after having failed to kill E
 her on the spot, by running the bus over her, the victim was thrown
 half naked in the wintery night, with grievous injuries. The
 brazenness and coldness with which the acts were committed
 reflects the threat to which the society would be posed to, in
 case the accused are not appropriately punished. More so, it
                                                                          F
  reflects that there is no scope of reform. The horrific acts
  reflecting the in-human extent to which the accused could go to
 satisfy their lust, being completely oblivious, not only to the norms
  of the society, but also to the norms of humanity. The acts
  committed so shook the conscience of the society. On the aspect
  of sentencing, seeking reduction of death sentence to life G
  imprisonment, three of the convicts/appellants namely A-3, A-4
  and A-5 placed on record, through their individual affidavits
  mitigating circumstances such as family circumstances such as
  poverty and rural background, young age, current family situation
  including age of parents, ill health of family members and their
                                                                         1-1
58            SUPREME COURT REPORTS                     (2017] 6 S.C.R.


A    responsibilities towards their parents and other family members,
     absence of criminal antecedents, conduct in jail, and likelihood
     of reformation. In his affidavit, A-2 reiterated his innocence and
     only pleaded that he is falsely implicated in the case. [Paras 139-
     142][320-G-H; 321-A-B, C-D, G-H; 322-B-D]
B           11.7 Society's reasonable expectation is that deterrent
     punishment commensurate with the gravity of the offence be
     awarded. When the crime is brutal, shocking the collective
     conscience of the community, sympathy in any form would be
     misplaced and it would shake the confidence of public in the
     administration of criminal justice system. Imposition of
c    appropriate punishment is the manner in which the courts respond
     to the society's cry for justice against the crime. Justice demands
     that the courts should impose punishments befitting the crime
     so that it reflects public abhorrence of the crime. Factors like
     young age of the accused and poor background cannot be said to
D    be mitigating circumstances. Likewise, post-crime remorse and
     post-crime good conduct of the accused, the statement of the
     accused as to their background and family circumstances, age,
     absence of criminal antecedents and their good conduct in prison
     cannot be taken as mitigating circumstances to take the case out
     of the category of "rarest of rare cases". The circumstances stated
E
     by the accused are too slender to be treated as mitigating
     circumstances. [Paras 144, 145][322-G; 323-A-C]
          Purushottarn Dashrath Borate and Am: v. Stare of .
          Maharashtra [20151 5 SCR 1112: (2015) 6 SCC 652;
          Om Prakash v. State of Haryana 11999) 1 SCR 794 :
F         (1999) 3 sec 19 - relied on.
        11.8 In the present case, there is not even a hint of hesitation
  with respect to the aggravating circumstances outweighing the
  mitigating circumstances and there is no justification to convert
  the death sentence imposed by the courts below to 'life
G imprisonment for the rest of the life'. The gruesome offences
  were committed with highest viciousness. Human lust was allowed
  to take such a demonic form. The accused may not be hardened
  criminals; but the cruel manner in which the gang-rape was
  committed in the moving bus; iron rods were inserted in the
H private parts of the victim; and the coldness with which both the
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                    59



victims were thrown naked in cold wintery night of December, A
shocks the collective conscience of the society. The present
case clearly comes within the category of 'rarest of rare case'
where the question of any other punishment is 'unquestionably
foreclosed'. If at all there is a case warranting award of death
sentence, it is the present case. If the dreadfulness displayed by
                                                                      B
the accused in committing the gang-rape, unnatural sex, insertion
of iron rod in the private parts of the victim does not fall in the
'rarest of rare category', then one may wonder what else would
fall in that category. The incident of gang-rape on the night of
16.12.2012 in the capital sparked public protest not only in Delhi
but nation-wide. We live in a civilized society where law and order c
is supreme and the citizens enjoy inviolable fundamental human
rights. But when the incident of gang-rape like the present one
surfaces, it causes ripples in the conscience of society and serious
doubts are raised as to whether we really live in a civilized society
and whether both men and women feel the same sense of liberty D
and freedom which they should have felt in the ordinary course
of a civilized society, driven by rule of law. Certainly, whenever
such grave violations of human dignity come to fore, an unknown
sense of insecurity and helplessness grabs the entire society,
women in particular, and the only succour people look for, is the
State to take command of the situation and remedy it effectively. E
 [Paras 146, 147)(323-D-H; 324-A-B]
       12. The statistics of National Crime Records Bureau show
that despite the progress made by women in education and in
various fields and changes brought in ideas of women's rights,
respect for women is on the decline and crimes against women         F
are on the increase. Offences against women are not a women's
issue alone but, human rights issue. Increased rate of crime
against women is an area of concern for the law-makers and it
points out an emergent need to study in depth the root of the
problem and remedy the same through a strict law and order
regime. There are a number of legislations and numerous penal        G
provisions to punish the offenders of violence against women.
However, it becomes important to ensure that gender justice
 docs not remain only on paper. Its hoped that this gruesome
 incident in the capital and death of this young woman will be an
                                                                     H
60           SUPREME COURT REPORTS                     [2017] 6 S.C.R.


A eye-opener for a mass movement "to end violence against
  women" and "respect for women and her dignity" and sensitizing
  public at large on gender justice. Every individual, irrespective
  of his/her gender must be willing to assume the responsibility in
  fight for gender justice and also awaken public opinion on gender
B justice. Public at large, in particular men, are to be sensitized on
  gender justice. The battle for gender justice can be won only
  with strict implementation of legislative provisions, sensitization
  of public, taking other pro-active steps at all levels for combating
  violence against women and ensuring widespread attitudinal
  changes and comprehensive change in the existing mind set.
C [Paras 148, 14911324-C-G]
          Dagdu & Ors. v. State of Maharashtra [ 19771 3 SCR
          636: (1977) 3 SCC 68; Ma/kiat Singh and Ors. v. State
          of Punjab [1991 J 2 SCR 256 : (1991) 4 SCC 341; Ajay
          Pandit alias Jagdish Dayabhai Patel and Am: v. State
D         of Maharashtra [2012) 10 SCR 70 : (2012) 8 SCC 43
          - relied on.
                           Case Law Reference
          In the Judgment of Dil!ak Misra, J. (For himself and
     Ashok Bhushan, J.}
E
          [1974) 3 SCR 9                 relied on       Para 52
          [2009) 8 SCR 264               relied on       Para 53
          [1996] 9 Suppl. SCR 938        relied on       Para 56
          [1975) Suppl. SCR 84           relied on       Para 56
F         (1978) 4 sec 302               relied on       Para 56
          1980 Suppl. sec 567            relied on       Para 56
          [2011) 4 SCR 1176              relied on       Para 57
          [2006) 10 Suppl. SCR 264       relied on       Para 58
G         [2010) 14 SCR 133              relied on       Para 58
          [2008] 3 SCR 1078              relied on       Para 59
          [2008) 14 SCR 405              referred to     Para 70
          [2008] 14 SCR 309              referred to     Para 70
H
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.       61


 [2009) 2 SCR 1033          referred to   Para 70    A
 [2010) 15 SCR 452          referred to   Para 70
 (1954) SCR 145             referred to   Para 71
 [1974) 1 SCR 328           referred to   Para 71
 [2002) 1 SCR 377           referred to   Para 71    B
 [2002] 3 Suppl. SCR 183    referred to   Para 71
 [1981) 3 SCR 504           referred to   Para 71
 [1978) 3 SCR 393           referred to   Para 73
 [2012] 3 SCR 686           referred to   Para 79    c
 [2012) 8 SCR 740           referred to   Para 82
 [2000] 2 SCR 903           referred to   Para 82
 [2009) 5 SCR 771           referred to   Para 82
 (1985) 1 sec 505           referred to   Para 83    D
 [2002] 1 Suppl. SCR 379    referred to   Para 84
 AIR 1965 SC 277            relied on     Para 85
 [2002) 3 SCR 1             referred to   Para 86
 (1988) Suppl. SCR 611      referred to   Para 88
                                                     E
 (1999] 1 SCR 276           referred to   Para 89
 AIR 1947 PC 67             referred to   Para 128
 (1972) 4 sec 659           referred to   Para 129
 [1976) 1 SCR 715           referred to   Para 130
                                                     F
 [2004] 2 SCR 123           referred to   Para 131
  [2005) 2 Suppl. SCR 79    referred to   Para 132
  [2000) 5 Suppl. SCR 144   referred to   Para 135
 [2012] 7 SCR 1100          referred to   Para 135
 [2008) 7 SCR 714                                    G
                            referred to   Para 135
 [2013] 8 SCR 323           referred to   Para 135
 [1971] 3 SCR 914           relied on     Para 140
 [1974] 1 SCR 78            relied on     Para 141
                                                     H
62     SUPREME COURT REPORTS                 (2017] 6 S.C.R.


A    [2003) 1 Suppl. SCR 44f    relied on      Para 142
     [2003] 3 SCR 978           relied on      Para 143
     [2010) 4 SCR 103           relied on      Para 144
     [2004) 5 Suppl. SCR I092   relied on      Para 144
B    (1975) 4 sec 480           relied on      Para 144
     (2002) 6 sec 110           relied on      Para 173
     [2010] 9 SCR 993           relied on      Para 174
     [1992] 2 SCR 197           relied Oil     Para 174

c    [2008] 8 SCR 962           relied Oil     Para 174
     [2012) 7 SCR 128           relied oil     Para 175
     [2010) 15 SCR 673          relied on      Para 175
     [2015) 2 SCR 1999          relied Oil     Para 176

D    [2003) 5 Suppl. SCR 54     relied Oil     Para 177
     (1992) 4 sec 225           relied on      Para 178
     [2015) 3 SCR 394           relied on      Para 179
     (1994) 4 sec 182           relied on      Para 186
E    [2004] 1 SCR 940           relied Oil     Para 187
     129 Supreme Court          relied Oil     Para 212
     Reporter 2308
     [2001) 3 SCR 729           relied Oil    . Para 215
     [2009] 11 SCR 636          relied Oil     Para 216
F
     [2010) 13 SCR 901          relied on      Para 217
     [2011] 7 SCR 354           relied Oil     Para 218
     [2011 I 8 SCR 774          relied Oil     Para 219

G
     [2011 I 2 SCR 939          relied Oil     Para 220
     [2012] 8 SCR 295           relied on      Para 221
     [2012] 5 SCR 952           relied on      Para 222
     [2014) 3 SCR 212           relied on      Para 223

H
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.      63


 [2014] 1 SCR 120          relied on     Para 224   A
 [1996] 8 Suppl. SCR 225   relied on     Para 243
 [2002] 2 Suppl. SCR 337   relied on     Para 244
 [2010) 10 SCR 503         relied on     Para 244
 (2012) 6 sec 204          relied on     Para 244   13
 [1985) Suppl. SCR 399     relied on     Para 259
 [1971) 1SCR119            relied on     Para 275
 [1962] SCR 195            relied on     Para 276
 [1978] 1 SCR 781          relied on     Para 277   c
 [1988] 2 Suppl. SCR 24    relied on     Para 278
 [2000] 4 Suppl. SCR 621   relied on     Para 280
 [2009) 13 SCR 124         relied on     Para 281
                                                    D
 [2012) 9 SCR 561          relied on     Para 282
 [2005) 4 Suppl. SCR 498   relied on     Para 283
 [1999] 3 SCR 1            relied on     Para 284
 (2001) 7 sec 596          relied on     Para 285
                                                    E
 [1994] 1 Suppl. SCR 483   relied on     Para 286
 [1980) SCR 500            referred to   Para 286
 [1977) 1 SCR 229          relied on     Para 306
 [1977) 3 SCR 636          relied on     Para 307   F
 (1980) 2 sec 684          referred to   Para 318
 [1983] 3 SCR 413 .        referred to   Para 318
 [2012] 13 SCR 85          referred to   Para 319
 [2013) 6 SCR 949          referred to   Para 319   G
 [2007] 2 SCR 555          referred to   Para 319
 [2011] 2 SCR 367          referred to   Para 319
 [1994) 1 SCR 37           referred to   Para 319
                                                    H
64     SUPREME COURT REPORTS                 [2017] 6 S.C.R.


A    [1989] 1 SCR 509          referred to     Para 321
     [1968] SCR 774            referred to     Para 322
     [1998] 2 SCR 162          referred to     Para 322
     [1999] 2 SCR 1            referred to     Para 322
B    [2004] 1 Suppl. SCR 918   referred to     Para 322
     [1974) 3 SCR 356          referred to     Para 323
     [1976) 2 SCR 274          referred to     Para 323
     [2003) 2 Suppl. SCR 285   referred to     Para 323
c    (2005) 10 sec 322         referred to     Para 323
     [2009) SCR 1055           referred to     Para 323
     [2009] 9 SCR 90           referred to     Para 323
     (201 O) l sec 58          referred to     Para 323
D
     [2011] l SCR 829          referred to     Para 323
     [2012] 1 SCR 1009         referred to     Para 323
     [2014) 8 SCR 668          referred to     Para 323
     (1999) 6 sec 60           referred to     Para 323
E
     [2001) 3 SCR 409          referred to     Para 323
     [2006] 8 Suppl. SCR 889   referred to     Para 323
     [2004] 4 Suppl. SCR 464   referred to     Para 324

F    [2014] 3 SCR 34           referred to     Para 324
     [2014] 8 SCR 668          referred to     Para 324
     [2001] 4 Suppl. SCR 298   referred to     Para 325
     (2011) 13 sec 706         referred to     Para 325
G    (2012) 4 sec 257          referred to     Para 325
     [2013] 4 SCR 25           referred to     Para 325
     [2012] 13 SCR 1049        referred to     Para 325
     [2008) 11 SCR 93          referred to     Para 326
H
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.         65


 (2016) 7 sec 1               referred to   Para 326   A
  [2012) 5 SCR 696            referred to   Para 326
  [2013) 6 SCR 108            referred to   Para 326
  [2011) 8 SCR 239            referred to   Para 326
 (2014) 12 sec 274            referred to   Para 326   B
 [1991] 2 SCR 711             referred to   Para 328
  [1996) 5 Suppl. SCR 507     referred to   Para 328
  [2005) 2 SCR 1132           referred to   Para 328
  [2005] 3 SCR 406            referred to   Para 328   c
  [2009] 7 SCR 182            referred to   Para 328
  [2013) 14 SCR 297           referred to   Para 328
 [2014] 10 SCR 812            referred to   Para 329
                                                       D
 [2015] 5 SCR 1112            referred to   Para 329
 [2011] 14 SCR 921            referred to   Para 340
 [1994] 2 SCR 94              referred to   Para 343
 [2008) 11 SCR 184            referred to   Para 346
                                                       E
 [2002) 2 SCR 767             referred to   Para 346
  [2012] 2 SCR 225            referred to   Para 347
  [1997] 6 Suppl. SCR 203     referred to   Para 348
 [2001) 5 Suppl. SCR 12       referred to   Para 350   F
 (2015) 1 sec 253             referred to   Para 351
 In the Judgment of R. Banumathi, J.
 [1996] 1 SCR 532             relied on     Para 11
 [2000] 2 SCR 818             relied on     Para 12    G
  [1999] 4 Suppl. SCR 286     relied on     Para 12
  [2005] 5 Suppl. SCR 280     relied on     Para 12
  [2012) 6 SCR 148            relied on     Para 14
                                                       H
66     SUPREME COURT REPORTS               [2017] 6 S.C.R.


A    [2000] 2 SCR 761          relied on     Para 16
     [1983] 3 SCR 280          relied on     Para 17
     [1980) 3 SCR 305          relied on     Para 17
     [2009] 10 SCR 248         relied on     Para 18
     [2008) 16 SCR 1078        relied on     Para 19
B
     [2005] 5 Suppl. SCR 280   relied on     Para 20
     [2003) 6 Suppl. SCR 995   relied on     Para 21
     [2008) 12 SCR 897         relied on     Para 21
     [2001 J 3 SCR 247         relied on     Para 22
c    [2000) 2 SCR 818          relied on     Para 22
     [1999) 4 Suppl. SCR 286   relied on     Para 22
     [2009] 15 SCR 1207        relied on     Para 22
     [2010) 1 SCR 1063         relied on     Para 22
     [2011 J 7 SCR 1080        relied on     Para 22
D
     [2006) 2 Suppl. SCR 318   relied on     Para 24
     [2009] 14 SCR 80          relied on     Para 25
     (1999) 1 sec 220          relied on     Para 25
     (2010) 14 sec 534         relied on     Para 25
E    [1976] Suppl. SCR 542     relied on     Para 29.
     [1992] 2 SCR 197          relied on     Para 30
     [1958) SCR 552            relied on     Para 30
     [1985) 2 SCR 621          relied on     Para 30
     [1995) 6 Suppl. SCR 212   relied on     Para 30
F    [2008) 8 SCR 962          relied on     Para 30
     [2010) 9 SCR 993          relied on     Para 30
     [2014] 8 SCR 69           relied on     Para 30
     [2006) 8 Suppl. SCR 234   relied on     Para 31
G    [2008) 8 SCR 956          relied on     Para 32
     (1993) Suppl. 2 sec 242   relied on     Para 33
     [2010) 9 SCR 705          relied on     Para 34
     [2010) 13 SCR 1217        relied on     Para 37
     [2013] 1 SCR 115          relied on     Para 38
H
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.     67


 (1994) 4 sec 182          relied on   Para 42     A
 [2004] 1 SCR 940          relied on   Para 42
 [2000) 3 SCR 729          relied on   Para 47
 [1999] 5 Suppl. SCR 215   relied on   Para 47
 [2000) 2 SCR 818          relied on   Para 47
                                                   B
 (2012) 3 SCR 686          relied on   Para 58
 [2012) 5 SCR 850          relied on   Para 63
 [2012) 8 SCR 740          relied on   Para 65
 [2000) 2 SCR 903          relied on   Para 65
 [2009) 5 SCR 771          relied on   Para 65     c
 [2004) 2 SCR 123          relied on   Para 75 ·
 [2007] 3 SCR 899          relied on   Para 76
 [2000) 5 Suppl. SCR 144   relied on   Para 80
 AIR 1947 PC 67            relied on   Para 81
 [2005] 2 Suppl. SCR 79    relied on   Para 81     D

 [2010] 13 SCR 901         relied on   Para 88
 [1962) SCR 195            relied on   Para 94
 (2000) 6 sec 269          relied on   Para 96
 (1980) 2 sec 465          relied on   Para 97     E
 [1981] 3 SCR 68           relied on   Para 97
 [1988) 2 Suppl. SCR 24    relied on   Para 97
 [1996] 1 Suppl. SCR 189   relied on   Para 97
 (2005) 11 sec 600         relied on   Para 97
 (1999) 5 sec 253          relied on   Para 97     F
 [2013) 15 SCR 1           relied on   Para 97
 [1971) 1 SCR 119          relied on   Para 98
 (2001) 1 sec 596          relied on   Para 98
 [2003) 1 SCR 119          relied on   Para 98     G
 [2008) 6 SCR 1116         relied on   Para 98
 [2012] 9 SCR 561          relied on   Para 98
 [2014) 6 SCR 819          relied on   Para 98
  [2008] 6 SCR 1116        relied on   Para 99
                                                   H
68      SUPREME COURT REPORTS                 [2017] 6 S.C.R.


A     (2003) 2 sec 143          relied on       Para 104
      [1977) 3 SCR 636          relied on       Para 107
      (1991) 2 SCR 256          relied on       Para 107
      (2012) 10 SCR 70          relied Oil      Para 107
B     [2005) 1 SCR 781          relied on       Para 116
      (1994) 4 sec 353          relied on       Para 118
      (1980) 2 sec 684          relied oil      Para 119
      (1973) 2 SCR 541          relied on       Para 120
c     [1979) 3 SCR 646          relied on       Para 120
      (1983) 3 SCR 413          relied Oil      Para 120
      [2008) 11 SCR 93          relied Oil      Para 122
      (2001) 12 sec 2s2         referred to     Para 123
      (2012) 4 sec 257          relied on       Para 124
D
      [2012) 13 SCR 85          relied on       Para 125
      [2005) 3 SCR 406          relied on       Para 126
      (2009) 7 SCR 182          relied oil      Para 126
      [1996) 5 Suppl. SCR 507   relied on       Para 126
.E
      [2005) 2 SCR 1132         relied Oil      Para 126
      [2013) 4 SCR 25           relied on       Para 126
      (1991) 2 SCR 711          relied on       Para 126
      (2014) 10 SCR 812         relied Oil      Para 126
 F
      [1970) 3 SCR 495          relied on       Para 127
      (2013] 14 SCR 297         relied on       Para 127
      (2015] 9 SCR 943          relied Oil      Para 127
      (1999] 4 Suppl. SCR 104   relied oil      Para 128
G
      [2008] 11 SCR 184         relied on       Para 129
      [2009) 7 SCR 182          relied on       Para 130
      [2011] 3 SCR 1091         relied on       Para 131
      [2011] 5 SCR ?18          relied on       Para 132
I-I
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            69



      [2008) 13 SCR 81                    relied on        Para 132          A
      [2012) 2 SCR 225                    relied on        Para 132
      [1994) 1 SCR 37                     relied on        Para 133
      [2013) 6 SCR 949                    relied on        Para134,136
      [2013] 1 SCR 783                    relied on        Para 137          B
      [2014] 10 SCR 812                   relied on        Para 137
      [2015] 5 SCR 1112                   relied on        Para 143
      [1999] 1 SCR 794                    relied on        Para 144
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                       c
Nos. 607-608 of2017.
      From the Judgment and Order dated 13 .03 .20 I 4 of the High Court
of Delhi at New Delhi in Criminal Appeal No. I 398 and I 399 of20 I 3 &
death sentence reference no. 6 of 20 I 3
                                 WITH                                        D
      Cr!. A. Nos. 609-610 of2017.
      Raju Ramachandran, (A.C.), Sanjay R. Hegde, (A.C.), Sidharth
Luthra, Sr. Advs, K Parameshwar, Ms. Mythini Vjay Kumar Thallam,
Vikram Aditya Narayan, Anil Kr. Mishra-I, S. Ni thin, Atul Shankar Vi nod,
                                                                             E
Pranjal Ki shore, Anas Tanwir, Manohar Lal Sharma, Ms. Suman, Manan
Sanghai, Nitin Kumar Thakur, M. M. Kashyap, V. P. Singh, Ms. Geeta
Chauhan, Ms. Pratima Rani, Ms. Richa Singh, S. P. Singh, Pawan Trivedi,
P. K. Tripathi, C. M. Sharma, C. K. Keshwarwani, Ms. Surekha
Srivastava, Supriya Juneja, B. K. Prasad, Sameer Chaudhary, Viraj
Gandhi, Ms. Shradha Karol, Ms. Mehaak Jaggi, Ajay Sharma,                    F
Ms. Diksha Kukrety, K. L. Janjani, Jaspreet Singh Rai, Rohit Nagpal,
Siddhant Sharma, Ishan Rohan, Shyamal Kumar, Arjun Vinod Bobde,
Mrs. Praneeta Shanna, Ms. Richa Relhan, Rajat Joseph, Advs. for the
appearing parties.
      The following Judgments of the Court were delivered by                 G
      DIPAK MISRA, J. [for himself and Ashok Bhushan, J.)
I. The cold evening of Delhi on 161h December, 2012 could not have
even remotely planted the feeling in the twenty-three year old lady, a
para-medical student, who had gone with her friend to watch a film at
                                                                             H
70             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A    PVR Select City Walk Mall, Saket, that in the next few hours, the
     shattering cold night that was gradually stepping in would bring with it
     the devastating hour of darkness when she, alongwith her friend, would
     get into a bus at Munirka bus stand to be dropped at a particular place;
     and possibly could not have imagined that she would be a prey to the
     savage lust of a gang of six, face brutal assault and become a playful
B
     thing that could be tossed around at their wild whim and her private
     parts would be ruptured to give vent to their pervert sexual appetite,
     unthinkable and sadistic pleasure. What the victims had not conceived
     of, it all happened, as the chronology of events would unroll. The attitude,
     perception, the beastial proclivity, inconceivable self-obsession and
c    individual centralism of the six made the young lady to suffer immense
     trauma and, in the ultimate eventuate, the life-spark that moves the bodily
     frame got extinguished in spite of availing of all the possible treatment
     that the medical world could provide. The death took place at a hospital
     in Singapore where she had been taken to with the hope that her life
     could be saved.
D
            2. The friend of the girl survived in spite of being thrown outside
     the bus along with the girl and the attempt of the accused-appellants to
     run over them became futile as they, by their slight movement, could
     escape from being crushed under the bus, and the appellants left them
     thinking that they were no more alive. Lying naked, as the clothes were
E    removed from their bodies, they shouted for help and as good fortune
     would have it, the night patrolling vehicle, a motor cycle, arrived and the
     said man, Raj Kumar, PW-72, gave the shirt to the boy and contacted
     the control room from which a Bolero patrol van came and they brought
     a bed sheet and tore it into two parts and gave a piece to each of the
F    victims so that they could cover themselves and feel civil. The PCR van
     took the victims to the Safdarjung Hospital where treatment commenced.
            3. The present case is one where there can be no denial that the
     narrative is long, the investigation has been cautious and to bring home
     the charge, modem and progressive scientific methods have been adopted.
G    Mr. Siddharth Luthra, learned senior counsel for the respondent-State,
     has made indefatigable endeavour to project that the investigation is
     flawless and exemplary; and Mr. M.L. Sharma and Mr. A.P. Singh,
     learned counsel for the appellants, have severely criticized it as faulty on
     many a score and that it is completely biased; and Mr. Sanjay R. Hegde,
     learned senior counsel, the friend of the Court, in his own way, has
H    highlighted that the investigation is not only flawed but also unreliable
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                         71
                   [DIPAK MISRA, J.]

which deserves chastisement and warrants rejection. Many facets of A
the investigation that pertain to recording of dying declaration, recording
of statements of witnesses under Section 161 of the Code of Criminal
Procedure (CrPC), the medical examination, holding of the test
identification parade, the manner and method of search and seizure and
the procedure of arrest have been seriously commented upon. That apart,
                                                                            B
criticism is advanced from many a spectrum to strengthen the stance
that it does not meet the standard and test determined by law. Needless
to say, the factual score and the investigation have to withstand the test
of reliability and acceptability. The appreciation of evidence brought on
record requires to be appositely scrutinized to adjudge the fact whether
the appellants are guilty of their culpability or there has been public c
pressure, as alleged, to falsely implicate the appellants or to treat them
as guinea pigs to save others and accept the hypothesis that the
prosecution has booked them at the instance of some political executives
or to save a situation which a disturbed society perceives as a collective
catastrophe on the paradigm of social stability and to sustain its faith in D
the investigation to keep the precept of rule oflaw alive. ln essence, the
submission is that the whole exercise, namely, investigation and trial, has
been carried out with the sole purpose for the survival of the prosecuting
agency. We have stated in the beginning that Mr. Sharma and Mr. Singh
appearing for the appellants commenced their submission with all the
vehemence and sensitivity at their command to strike at the root of the E
prosecution branding it as suspicious, absolutely unreliable, apathetic to
the concept ofindividual dignity and engaged in maladroit effort to book
the vulnerable and the innocent so as to disguise and cover their
inefficiency to catch the real culprits. In the course of our deliberation,
we shall dwell upon the same and keenly scrutinize the justifiability of F
the aforesaid criticism.
       The Prosecution Narrative
      4. Presently, we shall advert to the exposition of facts. The
prosecution case, as projected, is that on 16.12.2012, the deceased;
'Nirbhaya' (not her real name), had gone with her friend, the informant,   G
PW-1, to the PVR situated in Select City Walk Mall, Saket to watch a
movie. After the show was over, about 8:30 p.m., they took an auto and
reached Munirka bus stand wherefrom they boarded a white coloured
chartered bus [DL-1P-C-0149, Ext.PI] which was bound to
Dwarka/Palam Road, as a boy in the bus was calling for commuters for
                                                                1.
                                                                           H
72             SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A    the said destination. As per the version of the informant, PW-I, the friend
     of the prosecutrix, the bus had yellow and green lines/stripes and the
     word "Yadav" was written on it. After both of them had entered the bus,
     they noticed that six persons were already inside the bus, four in the
     cabin of the driver and two behind the driver's cabin. The deceased and
     the informant sat on the left side in the row oftwo-seaters and paid the
B
     fare of twenty rupees as demanded. Before they could get the feeling of
     a safe journey (though not a time-consumingjoumey), a feeling oflonely
     suffocation and a sense of danger barged in, for the accused persons did
     not allow anyone else to board and the bus moved and the lights inside
     the bus were put off With the lights being put off, the darkness and the
c    fear of the unexpected darkness ruled. A few minutes later, three persons
     (who have been identified as accused Ram Singh, Akshay and a young
     boy, who has been treated as a juvenile in conflict with law) came out of
     the driver's cabin and started to abuse PW-I. The young companion of
     the deceased raised opposition to the abuse that led to an altercation
D    which invited the other two who were sitting outside the driver's cabin
     to join. The spirit to oppose and the duty to save the prosecutrix had to
     die down and perilously succumb to the assault by the accused persons
     with the iron rods that caused injuries to his head, both the legs and other
     parts of the body and the consequence was that he fell on the floor of
     the bus to hear the painful cries of the lady who, he knew, was being
E    treated as an object, an article for experimentation and prey to the pervert
     proclivity of the six but could do nothing except to hear unbearable cries
     made in agony and pain. His spirit was dead, and bound to.
             5. As the prosecution story further unfurls, the two accused
     persons, namely, Pawan and Vinay, pinned the young man down and
F    robbed the victims of their mobiles besides robbing the informant of his
     purse carrying a Citi Bank credit card, ICICI Bank Debit Card, his identity
     card issued by his employer-company, metro card, a sum of rupees one
     thousand, his Titan Watch, a golden ring studded with jewels and a silver
     ring studded with pearl, black colour Hush Puppies shoes, black colour
     Numero Uno jeans, a grey colour pullover and a brown colour blazer. As
G    per the version of the prosecution, PW-I was carrying two mobiles and
     the prosecutrix was carrying only one, and the accused snatched away
     all the three mobiles.
           6. The overpowering was not meant to satisfy the avarice. As the
     accusations proceed, after the informant was overpowered, as it could
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                         73
                  [DIPAK MISRA, J.]

only have a singular result, the accused persons, namely, Ram Singh,       A
Akshay and the Juvenile in Conflict with Law (JCL) took the prosecutrix
to the rear side of the bus and she was raped by them, one after the
other.
        7. After committing rape, the accused Ram Singh (since
 deceased), accused Akshay and the JCL came towards the informant, B
 PW-1, and nailed him down; then the accused Vi nay and accused Pawan
 went to the rear side of the bus and committed rape on the prosecutrix,
 one by one. PW-I noticed that earlier the bus was moving at fast speed
 but after sometime, he felt that the speed of the bus was reduced and he
 saw that the accused Mukesh, who was driving the bus, came near him
 and hit him with the rod and he also went to the rear side of the bus and
                                                                           c
 raped the prosecutrix. The prosecutrix was brntally gang raped by the
 accused one after the other and she was also subjected to unnatural
 sex. Her private parts and her internal organs were seriously injured by
.inserting iron rod and hand in the rectal and vaginal region. As per PW-
 1, he had heard the cries of the prosecutrix like "chod do, bachao". PW- D
 1 could hear the prosecutrix shouting in a loud oscillating voice. The
 prosecutrix was carrying a grey colour purse having an Axis Bank ATM
 card and other belongings. The accused persons robbed her of her
 belongings and stripped her. They also took away the clothes of the
 informant while beating him with iron rods. The accused were exhorting
 that both the victims be not left alive. The accused then tried to throw E
 both the informant and the prosecutrix out of the moving bus from its
 rear door but could not open it and so, they brought them to the front
 door and threw them out of the moving bus at National Highway No. 8,
 Hotel Delhi 37, Mahipalpur flyover by the side of the road.
        8. As indicated earlier, the prosecutrix and PW-I were noticed by F
PW-72, Raj Kumar, who heard the voice of'bachao, bachao' from the
left side of the road near a milestone opposite to Hotel Delhi 37. PW-72
saw PW-I and the prosecutrix sitting naked having blood all around.
Immediately thereafter, PW-72, Raj Kumar, informed PW-70, Ram Pal,
who was in the Control Room, requesting him to call PCR. PW-70,            G
Ram Pal, ofEGIS Infra Management India (P) Limited, dialed 100 No.
and even asked his other patrolling staff to reach the spot.
      9. About 10:24 p.m., PW-73, H.C. Ram Chander, who was in
charge of PCR van Zebra 54, received information about the incident
and the lying of victims in a naked condition near the foot ofMahipalpur   H
74             SUPREME COURT REPORTS                          [2017] 6 S.CR.


A    fly over towards Dhaula Kuan opposite GMR Gate. PW-73 reached
     the spot and found the victims. He got the crowd dispersed and brought
     a bottle of water and a bedsheet from the nearby hotel and tore the
                                .
     same into two parts and gave it to both the victims to cover themselves .
            Travel to the Safdarjung Hospital
B           I 0. About 11:00 p.m., PW-73 took the victims to Safdarjung
     Hospital, New Delhi. On the way to the hospital, the victims gave their
     names to him and informed that they had boarded a bus from Munirka
     and that after some time the occupants had started misbehaving and had
     beaten the boy and taken the girl (prosecutrix) to the rear side of the bus
c    and committed rape on her. Thereafter, they had taken off the clothes
     of the victims and thrown them naked on the road. While leaving the
     informant, PW-1, in the casualty where he was examined by PW-5 l,
     Dr. Sachin Bajaj, and his MLC, Ext. PW-5 l/ A, was drawn up, PW-73
     took the prosecutrix to the Gynae ward and got her admitted there. The
     MLC of the prosecutrix,PW-49/B, was prepared by PW-49, Dr. Rashmi
D    Ahuja.
            11. PW-49, Dr. Rashmi Ahuja, recorded the history of the incident
     as told to her by the prosecutrix and noted the same in Exhibit PW-49/A.
     As per the version narrated by the prosecutrix to her, it was a case of
     gang rape in a moving bus by 4-5 persons when the prosecutrix was
E    returning after watching a movie with the informant. She was slapped
     on her face, kicked on her abdomen and bitten over lips, cheek, breast
     and vulva! region.The prosecutrix remembered intercourse two times
     and rectal penetration also. She was also forced to have m'matural oral
     sex but she refused. All this continued for half an hour and then she was
F    thrown off from the moving bus along with her friend.
           12. The following external injuries were noted by Dr. Rashmi
     Ahuja in Ex. PW-49/A:
            a) Bruise over left eye covering whole of the eye ·
            b) Injury mark (abrasion) at right angle of eye
G
           c) Brnise over left nostril involving upper lip
           d) Both lips edematous
            e) Bleeding from upper lip present

H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             75
                  [DIPAK MISRA, J.]

      f) Bite mark over right cheek                                            A
      g) Left angle of mouth injured (small laceration)
      h) Bite mark over left cheek
      i) Right breast bite marks belciv areola present
      j) Left breast bruise over right lower quadrant, bite mark in inferior   B
          left quadrant
      Per abdomen:
      i) Guarding & rigidity present
      Local examination:                                                       c
      a) Cut mark (sharp) over right labia present
      b) A tag of vagina (6 cm in length) hanging outside the introitus
      c) There was profuse bleeding from vagina
      Per vaginal examination:                                                 D

      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.                                                                E
       13. As the evidence brought on record would show, 20 samples
of the prosecutrix were taken and sealed with the seal of the hospital
and handed over to PW-59, Inspector Raj Kumari.
      Registration of FIR and the progress thereon
                                                                               F
       14. At this juncture, it is necessary to state that after the victims
were rescued, the informant, PW-I, Awninder Pratap, gave his first
statement to the police at 3 :45 a.m. on 17.12.2012 which culminated into
the recording of the FIR at 5:40 a.m. being FIR No. 413/2012 dated
17.12.2012, PS Vasant Vihar under Section 120B IPC and Sections
365/366/376(2)(g)/377/307/302 IPC and/or Sections 396/395 IPC read             G
with Sections 397/201/412 IPC. It was thereafter handed over to S.I.
Pratibha Sharma, PW-80, for investigation.
      15. On the same night, i.e., 16/17.12.2012, the prosecutrix
underwent first surgery around 4:00 a.m. The prosecutrix was operated
                                                                               H
76            SUPREME COURT REPORTS                          [2017] 6 S.C.R,.



A    by PW-50, Dr. Raj Kumar Chejara, Safdarjung Hospital, New Delhi and
     his surgery team comprised of Dr. Gaurav and Dr. Piyush. OT notes
     have been exhibited as Ex.PW-50/A and Ex.PW-50/B. The second and
     third surgeries were performed on 19.12.2012 and 23.12.2012
     respectively.
B            16. During the period the prosecutrix was undergoing surgeries
     one after the other, and when all were concerned about her progress of
     recovery, the prosecution was carrying out its investigation in a manner
     that it thought systematic. The first and foremost responsibility of the
     prosecution was to find out, on the basis of the information given, about
     the accused persons. That is how the prosecution story uncurtains.
c
            17. On 17.12.2012, supplementary statements of PW-I were
     recorded by PW-80, SI Pratibha Sharma. Based on the description of
     the bus given .by PW-I, the offending bus bearing No. DL-1 PC-0149
     was found parked in Ravi Das Jhuggi Camp, R.K. Puram, New Delhi.
     PW-80 along with PW-74, SI Subhash Chand, and PW-65, Ct. Kripal
D    Singh, went to the spot and found accused Ram Singh sitting in the bus.
     On seeing the pol ice, Ram Singh got down from the bus and started
     running. The police intercepted Ram Singh and he was arrested and
     interrogated.
            18. Personal search was conducted on Ram Singh and his
E    disclosure statement, Ex. P-74/F, was recorded by PW-74 and his team.
     Based on his disclosure statement, PW-74, Investigating Officer, SI
     Subhash Chand, seized the bus, Ex. Pl, vide Seizure Memo Ex. PW- 74/
     K. PW-74 seized the seat cover of the bus of red colour and its curtains
     of yellow colour. On the bus, 'Yadav' was found written on its body
F    with green and yellow stripes on it. The Investigating Officer also seized
     the key of the bus, Ex. P-74/2, vi de Seizure Memo Ex. PW-74/J. The
     documents of th.e bus were also seized. The disclosure statement of
     Ram Singh, Ex. PW-74/F, led to the recovery of his bloodstained clothes,
     iron rods and debit card of Asha Devi, the mother of the prosecutrix.
     PW-74, Investigating Officer, also recovered ashes and the partly unburnt
G    clothes lying near the bus which was seized vide Memo Exhibit No.
     PW-74/M and Unix Mobile Phone with MTNL Sim, Ex. P-74/5, vide
     Memo Ex. P/74E. The Investigating Officer prepared the site plan of
     the place where the bus was parked and from where the ashes were
     found.
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                           77
                 [DIPAK MISRA, J.]

      The arrest of the accused persons and seizure of articles             A
       19. The arrest of accused, Ram Singh, also led to the arrest of
two other accused persons, namely, accused Vi nay Sharma and accused
Pawan@ Kaalu. On 18.12.2012, accused Mukesh was apprehended
from village Karoli by PW-58, Sl Arvind Kumar, and was produced
before PW-80, SI Pratibha Sharma. At the instance of accused Mukesh         B
Singh, a Samsung Galaxy Trend DUOS Blue Black mobile belonging to
the informant was recovered. On 23.12.2012, at his instance, PW-80
prepared the route chart of the route where Mukesh drove the bus at
the time of the incident, Ex PW-80/i-i. Besides that, he got recovered
his bloodstained clothes from the_garage of his brother at Anupam
Apartment, Saidulajab, Saket, New Delhi. He opted to undergo Test           c
Identification Parade. In the Test Identification Parade conducted by
PW-17, Sandeep Garg, Metropolitan Magistrate, PW-I, identified
accused-Mukesh.
      20. Accused Pawan was apprehended and arrested about 1:15
p.m. on 18.12.2012 vide memo Ex.PW-60/A; his disclosure, Ex.PW-60/          D
G, was recorded and his personal search was conducted vide memo
Ex.PW-60/C. In his disclosure statement, Pawan pointed out Munirka
bus stand where the prosecutrix and PW-1 boarded the bus and memo
Ex.PW-68/I was prepared. He also pointed at the spot where PW-I
and the prosecutrix were thrown out of the bus and memo Ex.PW-68/J          E
was prepared in this regard.
       21. Accused Vi nay Sharma got recovered his bloodstained clothes,
PW-1 's Hush Puppies leather shoes and the prosecutrix 's mobile phone,
Nokia Model 3110 of black grey colour. Further recoveries were made
pursuant to his supplementary disclosure. Similarly, accused Pawan          F
Kumar got recovered from his jhuggi his bloodstained clothes, shoes and
also a wrist watch make Sonata and Rs. 1000/- robbed from PW- I.
      22. On 21.12.2012, accused Akshay was also arrested from Village
Karmalahang, PS Tandwa, Aurangabad, Bihar. His disclosure statement
was recorded. He led to his brother's house in village Naharpur, Gurgaon,   G
Haryana and got recovered his bloodstained clothes. A ring belonging to
PW-I, two metro cards and a Nokia phone with SIM of Vodafone
Company was also recovered from Akshay. Akshay also opted to undergo
TIP and was positively identified by PW-I. The mobile phones of the
accused persons were seized and call details records with requisite
                                                                            H
78             SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A    certificates under Section 65-B of Indian Evidence Act were obtained
     by the police.
            23. After getting arrested, all the accused were medically examined.
     The MLCs of all the accused persons show various injuries on their
     person; viz., in the MLC, Ex.PW-2/A, of accused Ram Singh, PW-2,
.B   Dr. Akhilesh Raj, has opined that the injuries mentioned at point Q to
     P-1 could possibly be struggle marks. Similar opinions were received in
     respect of other accused persons. PW-7, Dr. Shashank Pooniya, has
     opined that the injuries present on the body of accused Akshay were a
     week old and were suggestive of struggle as per MLC, Ex.PW-7/A.
     MLC, Ex.PW-7/B, pertaining to accused Pawan shows that he had
c    suffered injuries on his body which were simple in nature. The MLC,
     Ex. PW-7/C, of accused Vi nay Sharma proved that he too suffered
     injuries, simple in nature, 2 to 3 days old, though injury No. 8 was claimed
     to be self inflicted by the accused himself.
            Further treatment of the victim and filing of cltargesheet
D
            24. While the arrest took place, as indicated earlier, the victim
     underwent second and third surgeries on 19.12.2012 and 23.12.2012
     respectively. The second surgery was performed on the prosecutrix on
     19.12.2012 by PW-50, Dr. Raj Kumar Chejara, along with his operating
     team consisting of Prof. Sun ii Kumar, Dr. Pintu and Dr. Siddharth. Dr.
.E   Aruna Batra and Dr. Rekha Bharti were present along with the
     anaesthetic team. The clinical notes, Ex.PW-50/C, and notes prepared
     by the Gynaecology team, Ex.PW-50/D, can be referred to in this regard.
     The prosecutrix was re-operated on 23.12.2012 for peritoneal lavage
     and placement of drain under general anaesthesia and the notes are
 F   exhibited as Ex.PW-50/E.
             25. As the condition of the prosecutrix did not improve much, the
     prosecution thought it appropriate to record the statements of the
     prosecutrix. The said statements have been conferred the status of dying
     declaration. As is noticeable from the evidence, PW-49 also deposed
 G   that certain exhibits were collected for examination such as outer clothes,
     i.e., sweater, sheet covering the patient; inner clothes, i.e., Sameej tomed;
     dust; grass present in hairs, dust in clothes; debris from in between fingers;
     debris from nails; nail clippings; nail scrapings; breast swab; body fluid
     collection (swab from saliva); combing of pubic hair; matted pubic hair,
     clipping of pubic hair; cervical mucus collection; vaginal secretions; vaginal
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               79
                  [DTPAK MISRA, J.]

culture; washing from vaginal; rectal swab; oral swab; urine and oxalate         A
blood vial; blood samples, etc.
       26. On 21.12.2012, on being declared fit, the second dying
declaration was recorded by PW-27, Smt. Usha Chaturvedi, Sub-
Divisional Magistrate. This dying declaration is an elaborate one where
the prosecutrix has described the incident in detail including the insertion     B
of rods in her private parts. She also stated that the accused were
addressing each other with names like, "Ram Singh, Thakur, Raju,
Mukesh, Pawan and Vinay''.
       27. On 25'h December, 2012, at 1:00 p.m., PW-30, Shri Pawan
Kumar, Metropolitan Magistrate, went to the hospital to record the dying         c
declaration of the prosecutrix. The attending doctors opined that the
prosecutrix was not in a position to speak but she was othe1wise conscious
and responded byway of gestures. Accordingly, PW-30 put questions in
such a manner as to enable her to narrate the incident by way of gestures
or writing. Her statement, Ex.PW-30/D, was recorded by PW-30 in the
form of dying declaration by putting her questions in the nature of D
multiple choice questions. The prosecutrix gave her statement/dying
declaration through gestures and writings, Exhibit PW-30/D, the contents
of which will be discussed later.
       28. At this juncture, the cure looked quite distant. The health
condition was examined on 26'h December 2012 by a team of doctors                E
comprising ofDr. Sandeep Bansal, Cardiologist, Dr. Raj Kumar Chejara,
Dr. Sunil Kumar, Dr. Arun Batra and Dr. P.K. Verma and since the
condition of the prosecutrix was critical, it was decided that she be shifted
abroad for further treatment and fostering oasis of hope on 27'h December,
2012, she was shifted to Mt. Elizabeth Hospital, Singapore, for her further      F
treatment. The hope and expiration became a visible mirage as the
prosecutrix died on 29'" December, 2012 at Mt. Elizabeth Hospital,
Singapore. Dr. Paul Chui, PW-34, Forensic Pathologist, Health Sciences
Authority, Singapore, deposed that her exact time of death was 4:45
a.m. on 29'h December, 2012. The death occurred at Mt. Elizabeth
Hospital and the cause of her death was sepsis with multiple organ failure       G
following multiple injuries. The original post mortem report is Ex. PW-
34/A and its scanned copy is Ex.PW-34/B; the Toxicology Report dated
4lh January, 2013 is Exhibit PW-34/C. In the post-mortem report, Ex.PW-
34/ A, besides other serious injuries, various bite marks have been
observed on her face, lips, jaw, rear ear, on the right and left breasts, left   H
80             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A    upper arm, right lower limb, right upper inner thigh (groin), right lower
     thigh, left thigh lateral and left leg lower anterior.
            29. It is apt to note here that during the course of investigation
     (keeping in mind that the vehicle was identified), the investigating agency
     went around to collect the electronic evidence. A CCTV footage
B    produced by PW-25, Rajender Singh Bisht, in a CD, Ex.PW-25/C-l and
     PW-25/C-2, and the photographs, Ex.PW-25/B-l to Ex.PW-25/B-7, were
     collected from the Mall, Select City Walk, Sake! to ascertain the presence
     of PW-I and the prosecutrix at the Mall. The certificate under Section
     65-B of the Indian Evidence Act, 1872 (for short, "Evidence Act") with
     respect to the said footage is proved by PW-26, Shri Sandeep Singh,
c    vi de Ex.PW-26/A. Another important evidence is the CCTV footage of
     Hotel Delhi 37 situated near the dumping spot. The said footage showed
     a bus matching the description given by the informant at 9:34 p.m. and
     again at 9:53 p.m. The said bus had the word "Yadav" written on one
     side. Its exterior was of white colour having yellow and green stripes
D    and its front tyre on the left side did not have a wheel cap. The description
     of the bus was affirmed by PW-1 's statement. The CCTV footage
     stored in the pen drive, Ex.P-67/1, and the CD, Ex.P-67/2, were seized
     by the T.O. vide seizure memo Ex.PW-67/A from PW-67, Pramod Kumar
     Jha, the owner of Hotel Delhi 37. The same were id,11tified by PW-67,
     Pramod Jha, PW-74, ST Subhash, and PW-76, Gautam Roy, from CFSL
E    during their examination in Court. PW-78, SHO, fnspector Anil Sharma,
     had testified that the said CCTV footage seized vide seizure memo
     Ex.PW-67/A was sent to the CFSL through S.T. Sushi! Sawaria and
     PW-77, the MHC(M). Thereafter, on 01.01.2013, the report of the CFSL
     was received.
F           30. As the prosecution story would furtherundrape, in the course
     of investigation, the test identification parade was carried out. We shall
     advert to the same at a later stage.
            31. We had indicated in the beginning that the investigating team
     had taken aid of modem methods to strengthen its case. The process
G    undertaken, the method adopted and the results are severely criticized
     by the learned counsel for the appellants to which we shall later on
     revert to but presently to the steps taken by the investigating agency
     during investigation. With the intention to cover the case from all possible
     spheres and to establish the allegations with the proof of conclusivity
H    and not to give any chance of doubt, the prosecution thought that it was
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              81
                  [DIPAK MISRA, J.]

its primary duty to ascertain the identity of the accused persons; and for      A
the said purpose, it carried out DNA analysis and fingerprint and bite
mark analysis.
      Collection of samples and identity of accused persons
       32. The blood sample of the informant was collected by Dr.
Kamran Faisal, PW-15, Safdarjung Hospital, on 25.12.2012 and was                B
handed over to SI Pratibha Sharma, PW-80, vide seizure memo Ex.PW-
15/A by Constable Suresh Kumar, PW-42. Similarly, as mentioned earlier,
PW-49, Dr. Rashmi Ahuja, had collected certain samples from the person
of the prosecutrix which are reflected in Ex.PW-49/A from point B to
B. All the samples were collected by Inspector Raj Kumari, PW-59,               c
vide seizure memo Ex.PW-59/ A and were handed over to PW-80, SI
Pratibha Sharma, at Safdarjung Hospital in the morning of 17.12.2012.
Also the samples of gangrenous bowels of the prosecutrix were taken
on 24.12.2012 and were handed over to ST Gajender Singh, PW-55, who
seized the same vide seizure memo Ex.PW-I I/A. All the samples were
deposited with the MHC(M) and were not tampered with in any manner.             D
A specimen of scalp hair of the prosecutrix was also taken on 24.12.2012
by Dr. Ranju Gandhi, PW-29, and was handed over to PW- 80, SI
Pratibha Sharma, vide seizure memo Ex.PW-29/A.
      33. The accused were also subjected to medical examination and
samples were taken from their person which were sent for ON A analysis.         E

       34. DNA analysis was done at the behest of PW-45, Dr. B.K.
Mohapatra, Sr. Scientific Officer, Biology, CFSL, CBI, and Biological
Examination and DNA profiling reports were prepared which are
exhibited as Ex. PW-45/A-C. The report, after analysing the DNA
profiles generated from the known samples of the prosecutrix, the               F
informant, 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."
                                                                                G
       35. On 17.12.2012 and 18.12.2012, a team of experts from the
CFSL went to Thyagraj Stadium and lifted chance prints from the bus in
question, Ex.P-1. On 28.12.2012, PW-78, Inspector Anil Sharma ofP.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
                                                                                H
. 82             SUPREME COURT REPORTS                          [2017] 6 S.C.R.



 A     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
 B
       his report Ex.PW-46/D. In the report, the chance prints of accused Vinay
       Sharma were found to have matched with those on the bus in question.
               36. Bite mark analysis was also undertaken by the investigative
       team to establish the identity and involvement of the accused persons.
       PW-66, Asghar Hussain, on the instrnctions of the 1.0., S.I. Pratibha
 C     Sharma, had taken 10 photographs of different parts of the body of the
       prosecutrix at SJ Hospital on 20.12.2012 between 4:30 p.m. and 5:00
       p.m. which were marked as Ex.PW-66/B (Colly.) [I 0 photographs of 5"
       x 7" each] and Ex.PW-66/C (Colly.) [10 photographs of 8" x 12" each].
       PW-66 also proved in Court the certificate provided by him in terms of
 D     Section 65-B of the Evidence Act in respect of the photographs; Ex.
       PW-66/A. Thereafter, PW-18, SI Vishal Choudhary, 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 S.H.O. Anil Sharma, PW-78. The same
       were later entrnsted to S.I. Vishal Choudhary, PW-18 on 02.01.2013,
 E     which is proved vide RC No.183/21/12 and exhibited as Ex.PW-77/V.
       PW-71, Dr. Ashith B. Acharya, submitted the final report in this regard
       which is exhibited as Ex. PW-71/C. In the said report, he has concluded
       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
  F    accused Akshay.
             37. It is seemly to note here that on completion of the investigation,
       the chargesheet came to be filed on 03.01.2013 under Section 365/
       376(2)(g)/377/307/395/ 397/302/396/412/201/120/34 IPC and
       supplementary chargesheet was filed on 04.02.2013.
  G         Charge and examination of witnesses, conviction and
       awarding of sentence by the trial court
             38. After the case was committed to the Court of Session, all the
       accused were charged for the following offences:
              I. u/s 120-B IPC;
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             83
                  [DIPAK MISRA, J.]

      2. u/s. 365 I 366 I 307 I 376 (2)(g) !PC I 377 IPC read with             A
         Section 120-B IPC;
      3. u/s. 396 IPC read with Section 120-B IPC and /or;
      4. u/s. 302 IPC read with Section 120-B !PC;
      5. u/s. 395 IPC read with Section 397 IPC read with 120-B TPC;           B
      6. u/s. 201 TPC read with Section 120-B IPC and;
      7. u/s. 412 TPC.
      During the course of trial, accused Ram Singh committed suicide
and the proceedings qua him stood abated vide order dated 12.10.2013.
                                                                               c
       39. It is worthy to mention here that in order to bring home the
charge, the prosecution initially examined 82 witnesses and thereafter,
the statements of the accused persons were recorded and they abjured
their guilt. Accused Pawan Gupta @ Kaalu examined Lal Chand,
DW-1, Heera Lal, DW-2, Ram Charan, DW-3, Gyan Chand, DW-4, and                 D
Hari Kishan Sharma, DW-16, in support of his plea. Accused Vinay
Sharma examined Smt. Champa Devi, DW-5, Hari Ram Sharma, DW-
6, Kishore Kumar Bhat, DW-7, Sti Kant, DW-8, Manu Sharma, DW-9,
Ram Babu, DW-10, and Dinesh, DW-17, to establish his stand. Accused
Akshay Kumar Singh @ Thakur examined Chavinder, DW-11, Sa1ju
Singh, DW-12, Raj Mohan Singh, DW-13, Punita Devi, DW-14, and Sarita           E
Devi, DW-15. As the factual matrix would reveal, subsequently three
more prosecution witnesses were examined and on behalf of the defence,
two witnesses were examined.
       40. Learned Sessions Judge, vide judgment dated 10.09.2013,
convicted all the accused persons, namely, Akshay Kumar Singh @                F
Thakur, Vi nay Sharma, Mukesh and Pawan Gupta@ Kaalu under Section
l 20B TPC for the offence of criminal conspiracy; under Section 365/366
!PC read with Section 120B !PC for abducting the victims with an
intention to force the prosecutrix to illicit intercourse; under Section 307
TPC read with Section l 20B TPC for attempting to kill PW-I, the informant;
under Section 376(2)(g) !PC for committing gang rape with the                  G
prosecutrix in pursuance of their conspiracy; under Section 377 !PC
read with Section I 20B !PC for committing unnatural offence with the
prosecutrix; under Section 302 TPC read with Section 120B !PC for
committing murder of the helpless prosecutrix; under Section 395 !PC
                                                                               H
84              SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A     for conj"ointly committing dacoity in pursuance of the aforesaid conspiracy;
      under Section 397 IPC read with Section 120B TPC for the use of iron
      rods and for attemptiqg to kill PW-I at the time of committing robbery;
      under Section 201 IPC read with Section 120B IPC for destroying of
      evidence and under Section 412 IPC for the offence of being individually
      found in possession of the stolen property which they all knew was a
B
      stolen booty of dacoity committed by them.
            41. After recording the conviction, as aforesaid, the learned trial
      Judge imposed the sentence, which we reproduce:
             "(a) The convicts, namely, convict Akshay Kumar Singh @Thakur,
c            convict Mukesh, convict Vinay Sharma and convict Pawan Gupta
             @ Kaalu are sentenced to death for offence punishable under
             Section 302 Indian Penal Code. Accordingly, the convicts to be
             hanged by neck till they are dead. Fine ofRs. l 0,000/- to each of
             the convict is also imposed and in default of payment of fine such
             convict shall undergo simple imprisonment for a period of one
D            month.
             (b) for the offence under Section 120-B IPC I award the
             punishment of life imprisonment to each of the convict and fine of
             Rs.5000/- to each of them. In default of payment of fine simple
             imprisonment for one month to such convict;
E
             (c) for the offence under Section 365 IPC I award the punishment
             of seven years to each of the convict and fine of Rs.5000/- to
             each of them. In default of payment of fine simple imprisonment
             for one month to such convict;
             (d) for the offence under Section 366 IPC I award the punishment
F            of seven years to each of the convict person and fine ofRs.5000/
             - to each of them. In default of payment of fine simple
             imprisonment for one month to such convict;
             (e) for the offence under Section 376(2)(g) TPC I award the
             punishment of life imprisonment to each of the convict person
G            with fine ofRs.5000/- to each of them. In default of payment of
             fine simple imprisonment for one month to such convict;
             (t) for the offence under Section 377 IPC I award the punishment
             often years to each of the convict person and fine ofRs.5000/- to
             each of them. In default of payment of fine simple imprisonment
l-1          for one month to such convict;
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            85
                 [DIPAK MISRA, J.]

      (g) for the offence under Section 307 IPC I award the punishment       A
      of seven years to each of the convict person and fine ofRs.5000/
      - to each of them. In default of payment of fine simple imprisonment
      for one month to such convict;
      (h) for the offence under Section 201 IPC I award the punishment
      of seven years to each of the convict person and fine ofRs.5000/       B
      - to each of them. In default of payment of fine simple imprisonment
      for one month to such convict;
      ( i) for the offence under Section 395 read with Section 397 IPC I
      award the punishment often years to each of the convict person
      and fine ofRs.5000/- to each of them. In default of payment of         c
      fine simple imprisonment for one month to such convict;
      U) for the offence under Section 412 IPC I award the punishment
      often years to each of the convict person and fine ofRs.5000/- to
      each of them. In default of payment of fine simple imprisonment
      for one month to such convict;"                                        D
      42. Be it noted, the learned trial Judge directed the sentences
under Sections 120B/365/366/376(2)(g)/ 377/201/395/397/412 IPC to run
concurrently and that the benefit under Section 428 CrPC would be
given wherever applicable. He further recommended that appropriate
compensation under Section 357 A CrPC be awarded to the legal heirs          E
of the prosecutrix and, accordingly, sent a copy of the order to the
Secretary, Delhi Legal Services Authority, New Delhi, for deciding the
quantum of compensation to be awarded under the scheme referred to
in sub-section ( 1) of Section 357 A CrPC. That apart, as death penalty
was imposed, he referred the matter to the High Court for confirmation
under Section 366 CrPC.                                                      F
      The vieiv of the High court
       43. The High Court, vide judgment dated 13.03.2014, affirmed
the conviction and confirmed the death penalty imposed upon the accused
by expressing the opinion that under the facts and circumstances of the
                                                                             G
case, imposition of death penalty awarded by the trial court deserved to
be confirmed in respect of all the four convicts. As the death penalty
was confirmed, the appeals prefe1Ted by the accused faced the inevitable
result, that is, dismissal.

                                                                             H
86             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A          Commencement of hearing and delineation of contentions
            44. As we had stated earlier, the grievance relating to the lodging
     of FIR and the manner in which it has been registered has been seriously
     commented upon and criticized by the learned counsel for the appellants.
     Mr. Sharma, learned counsel for the appellants - Mukesh and Pawan
B    Kumar Gupta, and Mr. Singh, learned counsel for the appellants - Vi nay
     Sharma andAkshay Kumar Singh, have stressed with all the conviction
     at their command that when a matter of confirmation of death penalty is
     assailed before this Court, it is the duty of this Court to see every aspect
     in detail and not to treat it as an ordinary appeal.

c           45. As the argument commenced with the said note, we thought it
     appropriate to grant liberty to the learn.:d counsel for the appellants to
     challenge the conviction and the imposition of death sentence from all
     aspects and counts and to dissect the evidence and project the
     irregularities in arrest and investigation. Learned counsel for the parties
     argued the matter for considerable length of time and hence, we shall
D    deal with every aspect in detai I.
            Delayed registration of FIR
            46. The attack commences with the registration of FIR and,
     therefore, we shall delve into the same in detail. PW-57, AS! Kapil
E    Singh, the Duty Officer at P.S. Vasant Vihar, New Delhi, on the intervening
     night of J 6/17.12.2012, received information about the incident. He lodged
     DD No.6-A, Ex.PW-57/A, and passed on the said DD to PW-74, SI
     Subhash Chand, who was on emergency duty that night at P.S. Vasant
     Vihar. Immediately thereafter, PW-57, AST Kapil Singh, received yet
     another infonnation qua admission of the prosecutrix and of the informant
F    in Safdarjung Hospital and he lodged DD No.7-A, Ex.PW-57/B, and
     also passed on the said DD to SI Subhash Chand.
           47. PW-74, SI Subhash Chand, then left for Safda1jung Hospital
     where he met PW-59, Inspector Raj Kumari, and PW-62, SI Mahesh
     Bhargava. PW-59, Inspector Raj Kumari, handed over to him the MLC
G    and the exhibits concerning the prosecutrix as given to her by the treating
     doctor and PW-62, SI Mahesh Bhargava, handed over to him the MLC
     of the informant. PW-74, SI Subhash Chand, then recorded the
     statement, Ex.PW-I/A, of the informant at I :30 a.m. on 17.12.2012 and
     made his endorsement, Ex.PW-74/A, on it and he gave the rukka to
H    PW-65, Ct. Kripal Singh, for being taken to P.S. Vasant Vihar, New
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             87
                   [DIPAK MISRA, J.]

Delhi and to get the FIR registered. PW-65, Ct. Kripal Singh, then went        A
to P.S. Vasant Vihar, New Delhi and at 5:40 a.m. and gave the rukka to
PW-57, AST Kapil Singh, the Duty Officer, who, in tum, recorded the
FIR, Ex.PW-57/D, made endorsement, Ex.PW-57/E, on the rukka and
returned it to PW-65, Ct. Kripal Singh, who then handed it to PW-80, SI
Pratibha Sharma, at P.S. Vasant Vihar to whom the investigation was
                                                                               B
entrusted.
       48. SI Subhash Chand, PW-74, deposed that the statement of the
informant might have been recorded around 3:45 a.m. although PW-I
deposed that his statement was recorded at 5:30 a.m. It was submitted
that the original statement was recorded by HC Ram Chander, PW-73,
and the investigation process had already begun around I: 15 a.m. and          c
the subsequent information from the informant which is stated to be the
first information was, in fact, crafted after the investigating agency
decided on a course of action. It is submitted by the learned counsel for
the appellants that the delay in the FIR raises serious doubts.
       49. Delay in setting the law into motion by lodging of complaint in D
court or FIR at police station is normally viewed by courts with suspicion
because there is possibility of concoction of evidence against an accused.
Therefore, it becomes necessary for the prosecution to satisfactorily
explain the delay. Whether the delay is so long as to throw a cloud of
suspicion on the case of the prosecution would depend upon a variety of E
factors. Even a long delay can be condoned if the informant has no
motive for implicating the accused.
       50. In the present case, after the occurrence, the prosecutrix and
PW-I were admitted to the hospital at 11 :05 p.m.; the victim was admitted
in the Gynaecology Ward and PW-I, the informant, in the casualty ward.         F
PW-74, SI Subhash Chand, recorded the statement of PW-I at 3:45
a.m. After PW-1 and the prosecutrix were taken to the hospital for
treatment, the statement of PW-I was recorded by PW-74, SI Subhash
Chand, at 1:37 a.m. and the same was handed over to PW- 65, Constable
Kripal Singh, to PW-57, Kapil Singh. In the initial stages, the intention of
all concerned must have been to save the victim by giving her proper           G
medical treatment. Even assuming for the sake of argument that there
is delay, the same is in consonance with natural human conduct.
     51. In this case, there is no delay in the registration of FIR. The
sequence of events are natural and in the present case, after the
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88             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A    occurrence, the victim and PW-I were thrown out of the bus at
     Mahipalpur in semi-naked condition and were rescued by PW-72; Raj
     Kumar, and PW-70, Ram Pal, both EGIS Tnfra Management Tndia (P)
     Limited employees. The victim was seriously injured and was in a critical
     condition and it has to be treated as a natural conduct that giving medical
     treatment to her was of prime importance. The admission of PW-I and
B
     the victim in the hospital and the completion of procedure must have
     taken some time. PW-I himself was injured and was admitted to the
     hospital at 11:05 p.m. No delay can be said to have been caused in
     examining PW- I, the informant.
            52. Tn the context of belated FTR, we may usefully refer to certain
c    authorities in the field. Tn Ram Jag and others v. State of U.P/, it was
     held as that witnesses cannot be called upon to explain every hour's
     delay and a commonsense view has to be taken in ascertaining whether
     the first information report was lodged after an undue delay so as to
     afford enough scope for manipulating evidence. Whether the delay is so
D    long as to throw a cloud of suspicion on the seeds of the prosecution
     case must depend upon a variety of factors which would va1y from case
     to case. Even a long delay in filing report of an occurrence can be
     condoned if the witnesses on whose evidence the prosecution relies
     have no motive for implicating the accused. On the other hand, prompt
     filing of the report is not an unmistakable guarantee of the truthfulness
E    of the version of the prosecution."
            53. Tn State of Himachal Pradesh v. Rakesh Kumar, the Court
     repelled the submission pertaining to delay in lodging of the FTR on the
     ground that the first endeavour is always to take the person to the hospital
     immediately so as to provide him medical treatment and only thereafter
F    report the incident to the police. The Court in the said case further held
     that every minute was precious and, therefore, it is natural that the
     witnesses accompanying the deceased first tried to take him to the
     hospital so as to enable him to get immediate medical treatment. Such
     action was definitely in accordance with normal human conduct and
G    psychology. When their efforts failed and the deceased died they
     immediately reported the incident to the police. The Court, under the
     said circumstances ruled that in fact, it was a case of quick reporting to
     the police.
     1
       (1974)4 sec 201=AIR1974 sc 606
     ' (2009) 6 sec 30s
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              89
                  [DIPAK MISRA, J.]

         Judged on the anvil of the aforesaid decisions, we have no             A
hesitation in arriving at the conclusion that there was no delay in lodging
of the FIR.
      Non-mentioning of assailants in the FIR
       54. An argument was advanced assailing the FIR to the effect
that the FIR does not contain: (i) the names of the assailants either in the    B
MLC, Ex.PW-51/A, or in the complaint, Ex.PW-I/A, (ii) the description
of the bus and (iii) the use of iron rods.
        55. As far as the argument that the FIR does not contain the
names of all the accused persons is concerned, it has to be kept in mind
that it is settled law that FIR is not an encyclopedia of facts and it is not   c
expected from a victim to give details of the incident either in the FIR or
in the brief history given to the doctors. FIR is not an encyclopedia
which is expected to contain all the details of the prosecution case; it
may be sufficient ifthe broad facts of the prosecution case alone appear.
lfany overt act is attributed to a particular accused among the assailants,
it must be given greater assurance. In this context, reference to certain       D
authorities would be fruitful.
       56. In Rattan Singh v. State of H.P. 3 , the Court, while repelling
the submission for accepting the view of the trial court took note of the
fact that there had been omission of the details and observed that the
criminal courts should not be fastidious with mere omissions in the first       E
information statement since such statements can neither be expected to
be a chronicle of every detail of what happened nor expected to contain
an exhaustive catalogue of the events which took place. The person
who furnishes the first information to the authorities might be fresh with
the facts but he need not necessarily have the skill or ability to reproduce
details of the entire story without anything missing therefrom. Some            F
may miss even important details in a narration. Quite often, the police
officer, who takes down the first information, would record what the
informant conveys to him without resorting to any elicitatory exercise. It
is voluntary narrative of the informant without inte1rngation which usually
goes into such statement and hence, any omission therein has to be              G
considered along with the other evidence to determine whether the fact
so omitted never happened at all. The Court also referred to the principles
 stated in Pedda Narayana v. State ofA.P. 4 ; Sone Lal v. State of U.P.5;
 '(1997) 4 sec 161
 • (1975) 4 sec 153
 ' (1978) 4 sec 302                                                             H
90             SUPREME COURT REPORTS                               [2017] 6 S.C.R.



A    Gurnam Kaur v. Bakshish Singh 6 •
             57. In State of Uttar Pradesh v. Naresh and others 7 , reiterating
     the principle, the Court opined that it is settled legal proposition that FIR
     is not an encyclopedia of the entire case. It may not and need not contain
     all the details. Naming of the accused therein may be important but not
B    naming of the accused in FIR may not be a ground to doubt the contents
     thereof in case the statement of the witness is found to be tmstworthy.
     The court has to determine after examining the entire factual scenario
     whether a person has participated in the crime or has been falsely
     implicated. The informant fully acquainted with the facts may lack
     necessary skill or abi Iity to reproduce detai Is of the entire incident with out
c    anything missing from the same. Some people may miss even the most
     important details in narration. Therefore, in case the informant fails to
     name a particular accused in the FIR, this ground alone cannot tilt the
     balance of the case in favour of the accused. For the aforesaid purpose
     reliance was placed upon Rotash v. State of RaJastha11 8 and RanJit
D    Singh v. State of M.P.9
           58. In Rotash (supra) this Court while dealing with the omission
     of naming an accused in the FIR opined that:
            "14 ..... We, however, although did not intend to ignore the
            importance of naming of an accused in the first information report,
E           but herein we have seen that he had been named in the eadiest
            possible opportunity. Even assuming that PW l did not name him
            in the first information report, we do not find any reason to
            disbelieve the statement ofMooli Devi, PW 6. The question is as
           ·to whether a person was implicated by way of an afterthought or
F           not must be judged having regard to the entire factual scenario
            obtaining in the case. PW 6 received as many as four injuries."
         59. While dealing with a similar issue in Animireddy Venkata
     Ramana v. Public Prosecutor'", the Court held as under:
            "13 .... While considering the effect of some omissions in the
G           first information report on the part of the informant, a court cannot
            fail to take into consideration the probable physical and ment.al
     ' 1980 supp sec 567
     1
        c2011) 4 sec 324
     ' c2006) 12 sec 64
     ' c2011) 4 sec 336
H     " c2008) s sec 368
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               91
                  [DIPAK MISRA, J.]

      condition of the first informant. One of the important factors which       A
      may weigh with the court is as to whether there was a possibility
      of false implication of the appellants. Only with a view to test the
      veracity of the correctness of the contents of the report, the cou11
      applies certain well-known principles of caution."
        Thus, apart from other aspects what is required to be scrutinized        B
is that there is no attempt for false implication, application of principle of
caution and evaluation of the testimonies of the witnesses as regards
their trnstworthiness.
       60. In view of the aforesaid settled position of law, we are not
disposed to accept the contention that omission in the first statement of        c
the informant is fatal to the case. We are disposed to think so, for the
omission has to be considered in the backdrop of the entire factual
scenario, the materials brought on record and objective weighing of the
circumstances. The impact of the omission, as is discernible from the
authorities, has to be adjudged in the totality of the circumstances and
the veracity of the evidence. The involvement of the accused persons             D
cannot be determined solely on the basis of what has been mentioned in
the FIR.
       61. In his statement recorded in the early hours of 17.12.2012,
PW- I stated about going to the Select City Walk Mall, Saket alongwith
the prosecutrix and boarding the bus. He has also stated about the               E
presence of four persons sitting in the cabin of the bus and two boys
sitting behind the cabin and clearly stated about the overt act. He has
broadly made reference to the accused persons and also to the overt
acts. There are no indications of fabrication in Ex.PW-I/ A.
        62. The victim and PW-I were thrown out of the bus and after             F
some time they were admitted to the hospital. Both the injuries on PW-
1's person and the gruesome acts against the victim must have put him
in a traumatic condition and it would not have been possible for him to
recall and narrate the entire incident to the police at one instance. It
cannot be said that merely because the names of the accused persons              G
are not mentioned in the FIR, it raises serious doubts about the prosecution
case.
       Appreciation of the evidence of PW-1
       63. Having dealt with the contention of delay in lodging of the FIR
                                                                                 H
92            SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A    and omission of names in the FTR on the basis of the first statement of
     PW-I, we may now proceed to appreciate the evidentiary value to be
     attached to the testimony of PW-I and the contentions advanced in this
     regard.
            64. As per the evidence of PW-I, he alongwith the prosecutrix,
B    on the fateful day about 3:30 p.m., took an auto from Dwarka, New
     Delhi to Select City Walk Mall, Saket, New Delhi, where they watched
     a movie till about 8:30 p.m. and, thereafter, left the Mall. As they could
     not get an auto for Dwarka, they hired an auto for Munirka intending to
     take a bus (route No. 764) thereon. About 9:00 p.m. when they reached
     Munirka bus stand they boarded a white colour chartered bus and JCL
c    was calling for commuters to Dwarka/Palam Mod. While boarding the
     bus, PW-I noted that the bus had "Yadav" written on its side; had yellow
     and green lines/stripes; the entry gate was ahead of its front left tyre;
     and its front tyre was without a wheel cover. After boarding, he saw
     that besides the boy (JCL) who was calling for passengers and the driver,
D    ~wo other persons were sitting in the driver's cabin and two persons
     were seated inside the bus on either side of the aisle. After the bus left
     the Munirka bus stand, the lights inside the bus were turned off. Then
     accused Ram Singh, accused Akshay Thakur and the JCL (all three
     identified later) came towards PW-I and verbally and physically assaulted
     him. When PW-1 resisted them, accused Vinay and accused Pawan
E    were called along with iron rods and all the accused persons started
     hitting PW-I with the iron rods. When the prosecutrix attempted to call
     for help, PW-I and the prosecutrix were robbed of their possessions.
             65. PW-I was immobilized by accused Vi nay and accused Pawan
     Kumar; while others, viz., accused Ram Singh, Akshay and the.JCL
F    took the prosecutrix to the rear side of the bus whereafter PW-I heard
     the prosecutrix shout out "chod do, bachao" and her cry. After the above,
     three accused committed the heinous act of raping the prosecutrix,
     accused Vi nay and Pawan then went to the rear side of the bus while
     the other three pinned down PW-I. Thereafter, accused Mukesh
G    (originally driving the bus) hit PW-I with the rod and went to the rear
     side of the bus. PW-I also heard one of the accused saying "mar gayee,
     mar gayee''. After the incident, PW- I and the prosecutrix were dragged
     to the front door (because the rear door was jammed) and were pushed
     out of the moving bus opposite Hotel Delhi 37. After being thrown outside,
     the bus was turned in such a manner as to crnsh both of them but PW-I
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                           93
                   [DIPAK MISRA, J.]

pulled the prosecutrix and himself out of the reach of the wheels of the     A
bus and saved their lives.
       66. The statement of the informant, PW-1, was recorded by PW-
74 in the early hours of 17.12.12 and Ex.PW-1/A is the complaint. In his
chief examination, PW-74 deposes that he had given the complaint
(rukka) to Ct. Kripal Singh and sent him to the pvlice station at 5: 10 B
a.m. which thereby leaves the time of recording the infom1ant's statement
inconclusive. Even ifthe version of PW-74 was to be relied upon and
the informant's statement had been recorded by 5: I 0 a.m., DD entry
which forms Ex.PW-57IC records that till 5:30 a.m., no punishable offence
has been reported to have occurred and infonnation of well-being had
been recorded despite the fact that previous DD entries had been c
recorded on the basis of telephonic conversations between police officers
at the hospital, the scene of crime and the control room (both DD entries
6A and 7A had been recorded on the basis of phone conversations). The
first supplementary statement was recorded around 7:30 a.m., on
17.12.2012 specifically with respect to the bus in question. In this D
statement, Ex. PW-80/D I, PW-1 merely gives a generic description of
the bus. However, unlike in Ex. PW-I/A, in his supplementary statement,
the informant states that the bus was white in colour with stripes of
yellow and green, that there were 3 x 2 seats and that if he remembered
anything else, he would reveal the same. At this time, the investigating
agency had neither seized the bus nor arrested the accused; the statement E
of the informant is, therefore, silent on specific details about the same.
PW's second supplementary statement, Ex.PW-80/D3, was recorded
around noon on 17.12.2012 in which the informant, for the first time
since the time of the incident, revealed details about the bus in which the
crime allegedly occurred (that there was the word "Yadav" written on F
the side, that the front wheel cover was missing), and also revealed the
names of the accused (Ram Singh, one Thakur, one Mukesh/Ramesh,
Vinay and Pawan).
        67. The learn~d amicus curiae, Mr. Hegde, submitted that at
every stage, PW-1 made improvement in his statements. It was                 G
submitted that when PW-I was confronted with the omissions Ex.PW-
1/A, Ex.PW-8/D I and Ex. PW-80/D3, he stated that he was unable to
talk at the time ofrecording of his statement due to injury to the tongue.
It was submitted that as per Ex.PW-51/A, he sustained only simple injury
and it does not state that PW-I suffered injury to his tongue. It was
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94               SUPREME COURT REPORTS                        [2017] 6 S.C.R.



A    further contended that the process of improving and embellishing the
     informant's statement did not end with recording his statement under
     Section 161 CrPC. On 19.12.2012, the infonnantmade a statement und~r
     Section 164 CrPC before the Metropolitan Magistrate, Saket Courts.
     This statement is the most comprehensive and contains details which
     had been discovered by the prosecution by then such as the names of all
B
     the accused (including the name of the JCL for.the first time) and details
     from inside the bus (colour of the seats and curtains). It was contended
     that the improved version of PW-I renders his evidence unreliable and
     merely because he is an injured witness, his evidence carlnot be accepted.
            68. It is urged by Mr. Hegde, learned amicus curiae, that
c    inconsistencies and omissions amounting to contradiction in the testimony
     of PW-I make him an untrustworthy and unreliable witness. The
     inconsistencies pointed out by the learned amicus curiae pertain to the
     number of assailants, the description of the bus and the identity of the
     accused. As regards the omission, it is contended by him that the said
D    witness had not mentioned about the alleged use of rod in the FIR. He
     has further submitted that though he has stated that he had been assaulted
     by the iron rods as per his subsequent statement, yet the said statement
     is wholly unacceptable since he had sustained only simple injuries.
            69. Mr. Hegde, in his further criticism of the evidence of
E    PW-!, has put f01th that the effo1t of the prosecution had been to highlight
     the consistencies instead of explaining the inconsistencies. That apart,
     submits Mr. Hegde, that the witness has revealed the story step by step
     including the gradual recognition of the identity of the accused in tandem
     with the process of investigation and in such a situation, his testimony
     has to be looked with suspicion.
F
            70. Mr. Sharma, learned counsel for the appellants - Mukesh and
     Pawan Kumar Gupta, and Mr. Singh, learned counsel for the appellants
     - Vi nay Sharma and Akshay Kumar Singh, submit that the omissions in
     the statement of PW-I amount to contradictions in material particulars
     and such contradictions go to the root of the case and, in fact, materially
G    affect the trial or the very case of the prosecution. Therefore, they submit
     that the testimony of PW-!, who is treated as a star witness, is liable to
     be discredited. Reliance has been placed on the authorities in State
     Represented by Inspector of Police v. Sarava11a11 & anot/zer 11 ,
     11
          c2008) 17 sec 587 : AIR 2009 sc 1s2
H
     MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            95
                   [DIPAK MISRA, J.]

Arumugam v. State Represented by Inspector of Police, A
Tamil Nadu 11 , Malzendra Pratap Singh v. State of Uttar Pradesh' 3
and Sunil Kumar Samb/111dayal Gupta (Dr.) and others v. State of
Malzaraslttra 14 • •                         -


      71. The authorities that have been commended by Mr. Sharma
need to be appositely understood. In Arumugam (supra), the Court B
was dealing with the issue of acceptance of the version of interested
witnesses. It has referred to Da/ip Singh v. State of Punjab 15 , State of
Punjab v. Jagir Singh, Baljit Singh and Karam Si11gh' 6 , Le/ma v.
State of Haryana 17, Gangadltar Behera and others v. State of
Orissa 18 and State of Rajastlian v. Kalki and another 19 and opined
that while normal discrepancies do not corrode the credibility of a party's    c
case, material -discrepancies do so.
      72. In Saravanan (supra), reiterating the principle, the Com1 held:
      "18 ..... it has been said time and again by this Court that while
      appreciating the evidence of a witness, minor discrepancies on           D
      trivial matters without affecting the core of the prosecution case,
      ought not to prompt the court to reject evidence in its entirety.
      Further, on the general tenor of the evidence given by the witness,
      the trial court upon appreciation of evidence forms an opinion
      about the credibility thereof, in the normal circumstances the
      appellate court would not be justified to review it once again without   E
      justifiable reasons. It is the totality of the situation, which has to
      be taken note of. Difference in some minor detail, which does not
      otherwise affect the core of the prosecution case, even if present,
      that itself would not prompt the comi to reject the evidence on
      minor variations and discrepancies."                                     F
     73. In Mahendra Pratap Singh (supra), the Court referred to
the authority in lnder Singh and another v. State (Delhi
Administration} 20 wherein it has been held thus:
12
    (2008) 15 sec 590 :AIR 2009 SC 331
" (2009J 11 sec 334                                                            G
" (2010) 13 sec 657: JT 2010 (12) sc 287
15
    AIR 1953 SC 364
  ' <1974) 3 sec 2n
1

 11
    (2002) 3 sec 76
  ' (2002) 8 sec 381
 1

  ' <1981 l 2 sec 752
 1

'° (1978) 4 sec 161                                                            H
96            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A          "2. Credibility of testimony, oral and circumstantial, depends
           considerably on a judicial evaluation of the totality, not isolated
           scrutiny. While it is necessary that proof beyond reasonable doubt
           should be adduced in all criminal cases, it is not necessary that it
           should be perfect."
B           In the circumstance of the case, the Court, analyzing the evidence,
     opined:
           "62. From the above discussion of the evidence of the eyewitnesses
           including injured witnesses, their evidence does not at all inspire
           confidence and their evidence is running in conflict and
c          contradiction with the medical evidence and ballistic expert's report
           in regard to the weapon of offence, which was different from the
           one sealed in the police station. The High Court has, in our opinion,
           disregarded the rule of judicial prudence in converting the order
           of acquittal to conviction."
D           74. In Sunil KumarSambhudayal Gupta (supra), while dealing
     with the issue of material contradictions, the Court held:
           "30. While appreciating the evidence, the court has to take into
           consideration whether the contradictions/ omissions had been of
           such magnitude that they may materially affer the trial. Minor
E          contradictions, inconsistencies, embellishments or improvements
           on trivial matters without effecting the core of the prosecution
           case should not be made a ground to reject the evidence in its
           entirety. The trial court, after going through the entire evidence,
           must form an opinion about the credibility of the witnesses and
           the appellate court in normal course would not be justified in
F          reviewing the same again without justifiable reasons. (Vide State
           v. Saravanan)
           31. Where the omission(s) amount to a contradiction, creating a
           serious doubt about the truthfulness of a witness and the other
           witness also makes material improvements before the court in
G          order to make the evidence acceptable, it cannot be safe to rely
           upon such evidence. (Vide State of Raja,sthan v. Rajendra
           Singh 11 .)
           32. The discrepancies in the evidence of eyewitnesses, if found

     " (2009J 11 sec 106
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              97
                 [DIPAK MISRA, J.]

      to be not minor in nature, may be a ground for disbelieving and          A
      discrediting their evidence. In such circumstances, witnesses may
      not inspire confidence and iftheir evidence is found to be in conflict
      and contradiction with other evidence or with the statement already
      recorded, in such a case it cannot be held that the prosecution
      proved its case beyond reasonable doubt." (Vide Mahendra
                                                                               B
      Pratap Singh v. State of U.P )"
      And again:
      "35. The courts have to label the category to which a discrepancy
      belongs. While normal discrepancies do not coJTode the credibility
      of a party's case, material discrepancies do so." (See Syed              c
      Ibrahim v. State of A.Pn and Arumugam v. State)
       75. Mr. Luthra, learned senior counsel appearing for the
respondent-State, on the other hand, has disputed the stand of the
appellants as regards the discrepancies in the statement of PW-I.
According to him, the evidence of PW- I cannot be discarded on grounds         D
which are quite specious. The circumstances in entirety are to be
appreciated. He has placed reliance on the appreciation of the trial court
and contended that the appreciation and analysis are absolutely
impeccable. The relied upon paragraph is as follows:
      "The complainant PW! in his deposition had coJToborated his              E
      complaint Ex.PW I/A; his statement Ex.PW80/D- l recorded under
      section 161 Cr.P.C; his supplementary statement Ex.PW80/D-3
      and his statement Ex.PWl/B recorded under section 164 CrPC;
      qua his visit to Select City Mall, Saket; then moving to Munirka in
      an auto; boarding the bus Ex. P 1; the incident; throwing them out
      of the moving bus and attempt of accused to ovemm the victims            F
      by their bus.
       It was argued by the Ld. Defence counsel that during his cross
       examination PW I was confronted with his statement Ex. PW 1I A
       qua the factum of not disclosing in it the user of iron rods; the
       description of bus, the name of the assailants either in MLC Ex.        G
       PW51/A or in his complaint Ex.PWl/A. However, I do not
       consider such omissions as fatal as it is a settled law that FIR is
       not an encyclopedia of facts. The victim is not precluded from
      ·explaining the facts in his subsequent statements. It is not expected
" c2006) 10 sec 601
                                                                               H
98             SUPREME COURT REPORTS                             [2017) 6 S.C.R.



A           of a victim to disclose all the finer aspects of the incident in the
            FIR or in the brief history given to the doctor; as doctor(s) are
            more concerned with treatment of the victims. More so the victim
            who suffers from an incident, obviously, is in a state of shock and
            it is only when we moves in his comfort zone, he starts recollecting
            the events one by one and thus to stop the victim from elaborating
B
            the facts to describe the finer details, if left out earlier, would be
            too much.
            Thus if PWl had failed to give the description of the bus or of iron
            rods to the doctor in his MLC Ex. PWS I! A or in his complaint Ex.
            PW I/A it shall not have any fatal effect on the prosecution case.
c           What is fatal is the material omissions, if any."
            76. The evidence of PW-1 is assailed contending that he is not a
     reliable witness. During the cross-examination, his evidence was assailed
     contending that Ex.PW-I/A is replete with contradictions and
     inconsistencies. Taking us through the evidence, Mr. Singh has submitted
D    that in his first statement, Ex.PW-I/A, there were lot of omissions and
     contradictions and the improvements in his subsequent statements render
     the evidence wholly untrnstworthy. The appellants, in an attempt to assail
     the credibility of the testimony of PW-I, inter alia, raised the contentions:
     (i) Non-disclosure of the use of iron rod and (ii) the names of the assailants
E    in the MLC in Ex. PW-51/A or in Ex.PW-I/ A. However, the trial court
     held these assertions as non-fatal to PW-1 's testimony:
            " ... It is not expected of a victim to disclose all the finer aspects of
            the incident in the FIR or in the brief history given to the doctor;
            as doctor(s) are more concerned with treatment of the victims.
F           More so the victim who suffers from an incident, obviously, is in a
            state of shock and it is only when we move in his comfort zone,
            he starts recollecting the events one by one and thus to stop the
            victim from elaborating the facts to describe the finer details, if
            left out earlier, would be too much."

G           77. The contentions assailing the evidence of PW- I does not merit
     acceptance, for at the time when he was first examined his friend (the
     prosecutrix) was critically injured and he was in a shocked mental
     condition. The evidence of a witness is not to be disbelieved simply
     because he is a partisan witness or related to the prosecution. It is to be
     weighed whether he was present or not and whether he is telling the
H    trnth or not.
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             99
                  [DIPAK MISRA, J.]

       78. The informant, PW-1, in his deposition,. has clearly spoken         A
about the occurrence and also corroborated his complaint, Ex.PW-I/ A.
The evidence of PW-I is unimpeachable in character and the roving
cross-examination has not eroded his credibility. It is necessary to mention
here that PW- I was admitted in the casualty ward of Safda1jung Hospital.
As he was injured, he was medically examined by Dr. Sachin Bajaj,
                                                                               B
PW-51, and as per the evidence, Ext.PW-SI/A, the following injuries
were found on his body:
       (a) lcm XI cm size clean lacertated wound over the vertex of
          scalp (head injury);
       (b) 0.5 X I cm size clean lacerated wound over left upper leg;          c
       (c) IX 0.2 cm size abrasion over right knee.
       79. The injuries found on the person of PW-I and the fact that
PW-I was injured in the same occurrence lends assurance to his testimony
that he was present at the time of the occurrence along with the
prosecutrix. The evidence of an injured witness is entitled to a greater       D
weight and the testimony of such a witness is considered to be beyond
reproach and reliable. Fim1, cogent and convincing ground is required to
discard the evidence of an injured witness. It is to be kept in mind that
the evidentiary value of an injured witness carries great weight. In Mano
Dutt and another v. State of Uttar Pradesh 23 , it was held as under:          E
                                                                          24
       "31. We may merely refer to Abdul Sayeed v. State of MP.
       where this Court held as under:
          "28. The question of the weight to be attached to the evidence
          of a witness that was himself injured in the course of the
          occurrence has been extensively discussed by this Court.             F
          Where a witness to the occurrence has himself been injured in
          the incident, the testimony of such a witness is generally
          considered to be very reliable, as he is a witness that comes
          with a built-in guarantee of his presence at the scene of the
          crime and is unlikely to spare his actual assailant(s) in order to
                                                                               G
          falsely implicate someone. 'Convincing evidence is required
          to discredit an injured witness.' [Vide Ramlagan Singh v. State

" (2012) 4 sec 79
" (201 o) 1o sec 259
                                                                               H
100             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A               of Bihar25 , Ma/khan Singh v. State of U.P. 26 , Machhi Singh
                v. State of Punjab27, Appabhai v. State of Gujarat 2", Bonkya
                v. State of Maharashtra 29 , Bhag Singh v. State of Punjab·"',
                Mohar v. State of U.P. 31 , Dinesh Kumar v. State of
                Rajasthan 32 , Vishnu v. State of Rajasthan 33 , Annareddy
                Sambasiva Reddy v. State of A.P. 34 and Balraje v. State of
B
                Maharashtra 35 .]
                29. While deciding this issue, a similar view was taken in Jarnail
                Singh v. State of Punjab36 where this Court reiterated the
                special evidentiary status accorded to the testimony of an
                injured accused and relying on its earlier judgments held as
c               under:
                  '28. Darshan Singh (PW 4) was an injured witness. He had
                  been examined by the doctor. His testimony could not be
                  brushed aside lightly. He had given full details of the incident
                  as he was present at the time when the assailants reached
D                 the tubewell. In Shivalingappa Kallayanappa v. State of
                  Karnataka 37 this Court has held that the deposition of the.
                  injured witness should be relied upon unless there are strong
                  grounds for rejection of his evidence on the basis of major
                  contradictions and discrepancies, for the reason that his
E                 presence on the scene stands established in case it is proved
                  that he suffered the injury during the said incident.
                  29. In State of U.P. v. Kishan Chand"' a similar view has
                  been reiterated observing that the testimony of a stamped
                  witness has its own relevance and efficacy. The fact that
F     "(1973) 3 sec 881
      "(1975) 3 sec 311
      "(1983) 3 sec 470
      " 1988 Supp sec 241
      "(1995) 6 sec 447
      "(1997) 1sec112
      " c2002) 1 sec 606
G     " c2008) 8 sec 210
      ii c2009) 10 sec 477
      "c2009) 12 sec 546
      " c201 OJ 6 sec 673
       ' c2009) 9 sec 119
      3
      37
          1994 Supp (3) sec 235
        • c2004) 1 sec 629
      3
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              101
                 [DIPAK MISRA, J.]

           the witness sustained injuries at the time and place of             A
           occurrence, lends support to his testimony that he was
           present during the occurrence. In case the injured witness is
           subjected to lengthy cross-examination and nothing can be
           elicited to discard his testimony, it should be relied upon (vide
           Krishan v. State of Haryana 39 • Thus, we are of the                B
           considered opinion that evidence ofDarshan Singh (PW 4)
           has rightly been relied upon by the courts below.'
           30. The law on the point can be summarised to the effect
           that the testimony of the injured witness is accorded a special
           status in law. This is as a consequence of the fact that the
           injury to the witness is an inbuilt guarantee of his presence
                                                                               c
           at the scene of the crime and because the witness will not
           want to let his actual assailant go unpunished merely to falsely
           implicate a third party for the commission of the offence.
           Thus, the deposition of the injured witness should be relied
           upon unless there are strong grounds for rejection of his           D
           evidence on the basis of major contradictions and
           discrepancies therein."
           To the similar effect is the judgment of this Court in Balraje
           (supra)."
       80. As is manifest from the evidence, S.I. Pratibha Sharma, PW-         E
80, recorded the First Supplementary Statement under Section 16 l CrPC
of the infonnant, PW-I, Awninder Pratap Singh about 7:30 a.m. on
17.12.2012. Thereafter, PW- I, the informant, took PW-80, S. T. Pratibha
Sharma, to the spot from where he and the prosecutrix had boarded the
~.                                                                             F
       81. Apart from the injuries sustained, the presence of PW-I is
further confirmed by the DNA analysis of:
      1. the bloodstained mulberry leaves and grass that were collected
      from the spot in Mahipalpur where they were thrown off the bus;
      (Ex.74/C)                                                                G
      2. the blood stains on Vinay's jacket (Ex.68/2) (as per Seizure
      Memo Ex. 68/3), Pawan's sweater (Ex. P.68/6) (as per Ex. PW68/
      F) and Akshay's jeans (Ex P.68/6) tying them to the incident;
" (2006) 12 sec 459
                                                                               H
102            SUPREME COURT REPORTS                          [2017) 6 S.C.R.



A           (from the trial court judgment); and
            3. the unburnt cloth pieces belonging to PW-I that were recovered
            alongwith the ashes of the prosecutrix's clothing (Ex. PW74/M).
             82. The trial court judgment was fortified by the decisions of this
      Court in Pudhu Raja and another v. State Represented by Inspector
B     of Police40, Jaswant Singh v. State of Haryana 41 and Akhtar and
      others v. State of Uttarancha/41 on the law of material omissions and
      contradictions. Concurringly, the High Court too observed that the
      defence had failed to demonstrate from the informant's testimony such
      discrepancies, omissions and improvements that would have caused the
c     High Court to reject such testimony after testing it on the anvil of the
      law laid down by this Court:
            "325 .... 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.
D           The desire to have apprehended their assailants and to mete out
            just desserts to them could not have been their priority.... "
            83. In this context, we may frnitfully reproduce a passage from
      State of U.P. v. M.K. Antlwny43 :
            "I 0. While appreciating the evidence of a witness, the approach
E           must be whether the evidence of the witness read as a whole
            appears to have a ring oftrnth. Once that impression is formed, 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
 F
            evidence given by the witness and whether the earlier evaluation
            of the evidence is shaken as to render it unworthy of belief. Minor
            discrepancies on trivial matters not touchii1g the core of the case,
            hyper-technical approach by taking sentences tom out of context
            here or there from the evidence, attaching importance to some
G           technical error committed by the investigating officer not going to
            the root of the matter would not ordinarily pennit rejection of the
            evidence as a whole .... "
      •
        0
          c2012)-11 sec 196
      " c2000) 4 sec 484
      " c2009) n sec 122
H     " cI 985) 1 sec 505
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              103
                 [DIPAK MISRA, J.]

      84. In Harijana Thirupala v. Public Prosecutor, High Court               A
ofA.P. 44 , it has been ruled that:
     "11.      .... In appreciating the evidence the approach of the
     comi must be integrated not tnmcated or isolated. In other words,
     the impact of the evidence in totality on the prosecution case or
     innocence of the accused has to be kept in mind in coming to the          B
     conclusion as to the guilt or otherwise of the accused. In reaching
     a conclusion about the guilt of the accused, the court has to
     appreciate, analyse and assess the evidence placed before it by
     the yardstick of probabilities, its intrinsic value and the animus of
     witnesses."
                                                                               c
      85. In Ugar Ahir v. State of Bihar5 , a three-Judge Bench held:
      "7. The maxim falsus in uno, falsu in omnibus (false in one
      thing, false in everything) is neither a sound rule oflaw nor a rule
      of practice. Hardly one comes across a witness whose evidence
      does not contain a grain of untruth or at any rate exaggerations,        D
      embroideries or embellishments. It is, therefore, the duty of the
      court to scrutinise the evidence carefully and, in terms of the
      felicitous metaphor, separate the grain from the chaff. But, it cannot
      obviously disbelieve the substratum of the prosecution case or the
      material parts of the evidence and reconstruct a story of its own
      out of the rest."                                                        E
      86. In Krishna Mochi v. State of Bi/lar6, the Court ruled that:
      "32 ..... The court while appreciating the evidence should not
      lose sight of these realities of life and cannot afford to take an
      unrealistic approach by sitting in an ivory tower. I find that in
                                                                               F
      recent times the tendency to acquit an accused easily is galloping
      fast. It is very easy to pass an order of acquittal on the basis of
      minor points raised in the case by a short judgment so as to achieve
      the yardstick of disposal. Some discrepancy is bound to be there
      in each and every case which should not weigh with the court so
      long it does not materially affect the prosecution case. In case         G
      discrepancies pointed out are in the realm of pebbles, the court

" (2002) 6 sec 410
" AIR 1965 SC 277
" (2002) 6 sec s 1
                                                                               H
104             SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A           should tread upon it, but if the same are boulders, the court should
            not make an attempt to jump over the same. These days when
            crime is looming large and humanity is suffering and the society is
            so much affected thereby, duties and responsibilities of the courts
            have become much more. Now the maxim "let hundred guilty
            persons be acquitted, but not a single innocent be convicted" is, in
B
            practice, changing the world over and courts have been compelled
            to accept that "society suffers by wrong convictions and it equally
            suffers by wrong acquittals". I find that this Court in recent times
            has conscientiously taken notice of these facts from time to time".
             87. In Inder Singh (supra), Krishna Iyer, J. laid down that:
c
             "Proof beyond reasonable doubt is a guideline, not a fetish and
             guilty man cannot get away with it because trnth suffers some
             infirmity when projected through human processes."
            88. In the case of State of U.P. v. A nil Singh 47 , it was held that a
D     Judge does not preside over a criminal trial merely to see that no innocent
      man is punished. A Judge also presides to see that a guilty man does not
      escape. One is as important as the other. Both are public duties which
      the Judge has to perform.
             89. In Mohan Singh and another v. State of M.P. 48 , this Court
E     has held:
            "11. The question is how to test the veracity of the prosecution
            story especially when it is with some variance with the medical
            evidence. Mere variance of the prosecution story with the medical ·
            evidence, in all cases, should not lead to the conclusion, inevitably
.F          to reject the prosecution story. Efforts should be made to find the
            truth, this is the very object for which courts are created. To search
            it out, the courts have been removing the chaff from the grain. It
            has to disperse the suspicious cloud and dust out the smear of
            dust as all these things clog the very truth. So long as chaff, cloud
            and dust remain, the criminals are clothed with this protective
G           layer to receive the benefit of doubt. So it is a solemn duty of the
            courts, not to merely conclude and leave the case the moment
            suspicions are created. It is the onerous duty of the court, within
            permissible limit, to find out the truth. It means on one hand, no
      " 1988 (Supp.) sec 686
      " <I 999) 2 sec 428
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             105
                 [DWAK MISRA, J.]

       innocent man should be punished but on the other hand, to see no A
       person committing an offence should get scot-free. Ifin spite of
       such effort, suspicion is not dissolved, it remains writ at large,
       benefit of doubt has to be credited to the accused. For this, one
       has to comprehend the totality of the facts and the circumstances
       as spelled out through the evidence, depending on the facts of B
       each case by testing the credibility of eyewitnesses including the
       medical evidence, of course, after excluding those parts of the
       evidence which are vague and uncertain. There is no mathematical
       formula through which the truthfulness of a prosecution or a
       defence case could be concretised. It would depend on the
       evidence of each case including the manner of deposition and his c
       demeans (sic), clarity, corroboration of witnesses and overall, the
       conscience of a judge evoked by the evidence on record. So courts
       have to proceed further and make genuine efforts within the judicial
       sphere to search out the truth and not stop at the threshold of
        creation of doubt to confer benefit of doubt."
                                                                            D
       90. Keeping the aforesaid aspects in view, we shall now proceed
to test the submission of the learned counsel for the appellants and the
learned amicus curiae on the issue whether the testimony of PW-I
deserves acceptance being reliable or not. It is no doubt true that in the
earlier statement of PW-I, that is, Ex.PW-I/A, there are certain
omissions; but the main thing to be seen is whether the omissions go to E
the root of the matter or pertain to insignificant aspects. The evidence of
PW-1 is not to be disbelieved simply because there were certain
omissions. The trial Court as well as the High Court found his evidence
credible and trustworthy and we find no reason to take a different view.
       91. The case of the prosecution is attacked contending that PW-        F
! is a planted witness and that he keeps on improving his version. It is
submitted that PW-I is not reliable as had he been present at the time of
occurrence, he would have endeavoured to save the victim and the nature
of injuries as mentioned in Ex. PW-51/ A on the person of PW-I raises
serious doubt about his presence at the time of occurrence.                   G
       92. The prosecutrix and PW-I were surrounded and attacked by
at least six accused persons. As narrated by PW- I, he was pinned down
by two of the assailants while the others committed rape on the prosecutrix
on the rear side of the bus. The accused persons were in a group and
were also armed with iron rods. PW- I was held by them. It would not          H
106             SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A     have been possible for PW- I to resist the number of accused persons
      and save the prosecutrix. The evidence of PW-I cannot be doubted on
      the ground that he had not interfered with the occurrence. The
      improvements made in the supplementary statement need not necessarily
      render PW-1 's evidence untrustworthy more so when PW-I has no reason
      to falsely implicate the accused.
B
             93. Learned counsel for the State has highlighted that the version
      of PW-I is absolutely consistent and the trial co1111 as well as the High
      Court has correctly relied upon his testimony. He has drawn our attention
      to the version of PW-I in the FIR, the statement recorded under Section
      164 CrPC and his testimony before the trial court. We have given anxious
c     consideration and perused the FIR, supplementary statements recorded
      under Section 164 CrPC and appreciated the evidence in court and we
      find that there is no justification or warrant to treat the version of the
      witness as inconsistent. The consistency is writ large and the witness,
      as we perceive, is credible.
D             94. Mr. Luthra, learned senior counsel, further contested the
      argument advanced on behalf of the appellants as regards the
      discrepancies so far as PW-I is concerned. As regards the items stolen,
      it is recorded in the FIR that the accused persons stole the informant's
      Samsung Galaxy Mobile phone bearing 7827917720 and 9540034561
E     and his wallet containing Rs. I 000, TCTCT debit card, Ci ti Bank Credit
      Card, ID Card, one silver ring, one gold ring and took off all his clothes,
      i.e., khakhi coloured blazer, grey sweater, black jeans, black Hush Puppies
      shoes and they also stole the prosecutrix's mobile phone with number
      9818358144. His statement recorded under Section 164 CrPC states
      that the accused snatched the Samsung Galaxy S-Duos Mobile, one
F     more mobile phone of Samsung, one purse with Rs. l 000, one Citibank
      credit card, ICTCT Debit Card, Company I-Card, Delhi Metro Card and
      also snatched black jeans, one silver ring, one gold ring, Hush Puppies
      shoes. They also snatched the prosecutrix's Nokia mobile phone and
      grey colour purse and both the wrist watches. Before the trial com1, he
G     deposed that they snatched both the rings, shoes, purse containing cards
      and cash, socks and belt; they took off all his clothes and left him in an
      underwear; the accused had also taken off all the prosecutrix's clothes
      and snatched all her belongings including grey purse containing Axis
      bank card. PW-I also identified Hush Puppies shoes, Ex. P-2, Sonata
      watch, Ex. P-3, metro card, Ex. P-5, Samsung Galaxy Duos, Ex. P-6,
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            107
                  [DIPAK MISRA, J.]

and currency notes, Ex. P-7. As regards the weapon of assault, in the         A
FIR and in the Section 164 statement, "rod" was recorded as weapon of
assault and in his testimony before the trial court, PW- I deposed that the
weapon of assault was "iron rods". So far as throwing from the bus is
concerned, it is recorded in the FIR that the other accused persons told
the driver to drive the bus at a fast speed and then tried to throw the
                                                                              B
informant from the back door of the bus, however, the back door of the
bus did not open. Then they threw both the info1mant and the prosecutrix
from the moving bus near NH 8 Mahipalpur on the side of the road. His
statement recorded under Section 164 CrPC states that the bus driver
was driving the bus at a fast speed on being told by the other accused
and he heard them saying that the girl had died and to throw her off the      c
bus. They then took the informant and the prosecutrix to the rear door of
the bus but could not open the door and, therefore, dragged them to the
front door of the bus and threw them out. The bus driver turned the bus
in such a manner after throwing them, that if the infonnant had not
pulled the prosecutrix, then the bus would have nm over her. PW- I has        D
deposed before the trial court that he heard one of the accused saying
"mar gayee, margayee"; the accused were exhorting that the informant
and the prosecutrix should not be left alive; the accused persons pulled
the informant near the rear door and put the prosecutrix on him. The
rear door was closed, so they dragged both the informant and the
prosecutrix to the front door; they were thrown off opposite Hotel Delhi      E
37; after they were thrown, the accused persons turned the bus and
tried to crush them under the wheels. As regards the naming/description
of the accused, the FIR recorded that the accused were aged between
25-30 years; one of them had a flat nose and was the youngest; one of
them wore a red banian and they were wearing pant and shirt; and the
                                                                              F
accused were named as Ram Singh, Thakur, Mukesh, Vinay and Pawan.
In the statement, it was recorded that he saw a dark coloured man who
was being called "Mukesh, Mukesh"; he over-heard them calling each
 other as Ram Singh, Thakur; and the other three were addressing each
 other Pawan and Vinay and taking the name of JCL. In his testimony, it
 is recorded that he identified A-2, Mukesh, as Driver, A-1. Ram Singh,       G
 and A-3, Akshay, as persons sitting in the driver's cabin and identified
 A-4, Vi nay, and A-5, Pawan, as persons sitting in the bus.
      95. As regards the minor contradictions/omissions, the trial court
has placed reliance upon Pudlm Raja (supra) and Ja:jwant Singh
                                                                              H
108             SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A     (supra) and treated the version of PW-I as reliable. The testimony of
      PW-I has been placed reliance upon by both the Courts and on an anxious
      and careful scrutiny of the same, we do not perceive any reason to
      differ with the said view.
              96. As we find, the trial court has come to the conclusion that the
B     incident has been aptly described by PW-I, the injured, The injuries on
      his person do show that he was present in the bus at the time of the
      incident. His presence is further confirmed by the DNA analysis. Suffice
      it to say for the present, the contradictions in the statement, Ex.PW-I/A,
      are not material enough to destroy the substratum of the prosecution
      case. From the studied analysis of the evidence of PW- I, it is the only
c     inevitable conclusion because the appreciation is founded on yardstick
      of consideration of totality of evidence and its intrinsic value on proper
      assessment.
            Recovery oftlte bus and tlte CCTV footage
D            97. The endeavour of the prosecution was to first check the route
      and get a clue of the bus. For the aforesaid purpose, the CCTV footage
      becomes quite relevant. The story starts from the Select City Walk Mall,
      Saket and hence, we have to start from there. As per the case of the
      prosecution, the informant and the prosecutrix had gone to Select City
      Walk Mall, Sake! to see a film. The CCTV footage produced by PW-
E     25, Rajender Singh Bisht, in a CD, Ex.PW-25/C-l and PW-25/C-2, and
      the photographs, Ex.PW-25/B-l to Ex.PW- 25/B-7, are evident of the
      fact that the infonnant and the prosecutrix were present at Saket till
      8:57 p.m. The certificate under Section 65B of the Evidence Act with
      respect to the said footage is proved by PW-26, Shri Sandeep Singh,
F     vide Ex.PW-26/A. The infonnant as well as the prosecutrix gave brief
      description of the entire incident in their MLCs which led the investigating
      team to the Hotel near Delhi Airport where the prosecutrix and the
      informant were dumped after the incident. PW-67, Pramod Kumar Jha,
      the owner of the Hotel at Delhi Airport, was examined by the investigating
      officers regarding the present incident. He handed over the pen drive
G     containing the CCTV footage, Ex.P-67/1, and the CD, Ex.P-67/2 to the
      I.O. which were seized vide seizure memo Ex.PW-67/A. The CCTV
      footage and the photographs were identified by PW-67, Pramod Jha,
      PW-74. SI Subhash Chand, and Gautam Roy, PW-76, from CFSL during
      their examination in Court. The CCTV footage twice showed a white
H     coloured bus having yellow and green stripes at 9:34 p.m. and again at
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            109
                  [DIPAK MISRA, J.]

9:53 p.m. The bus exactly matched the description of the offending bus        A
given by the informant. lt had the word "Yadav" written on one of its
sides and its front tyre on the left side did not have a wheel cap. PW-78,
the S.H.O., Inspector Anil Sharma, has further deposed that the said
CCTV footage seized vi de seizure memo Ex. PW-67 /A was sent to the
CFSL through SI Sushil Sawariya, PW-54, on 02.01.2013, and this part          B
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. In fact, the trial court had assured
itself of the correct identification of the bus by playing the said CCTV
footage shown in the pen drive, Ex.PW-6711, and the CD, Ex.PW-67 /2,
during the cross-examination of PW-67, Pramod Jha.                            C
       98. Learned counsel Mr. Singh has asserted that bus, Ex. P-1,
has been falsely implicated in the present case as is evidenced from the
recovery of the CCTV footage. In an attempt to discredit the CCTV
footage, he pointed out that only the CCTV recording alleged to be of
this bus was recorded and not of all other white buses that had 'Yadav' D
written on them. The learned counsel for the defence subsequently
maintained that the CCTV footage cannot be relied upon as the same
has been tampered with by the investigating officers.
        99. PW-76, Gautam Roy, HOD, Computer Cell, Forensic Division,
has testified that on 02.01.2013, he had received two sealed parcels          E
sealed with the seal of PS and the seals tallied with the specimen seals
provided. He marked the blue coloured pen drive found in parcel No. I
as Ex. I and the Moser Baer CD found in the second parcel as Ex.2. He
further testified that both the exhibits were played by him in the computer
and the bus was seen twice, at 9:34 p.m. and 9:54 p.m. He had
photographed all these three by freezing the pen drive and the CD and         F
these photographs were compared by him with the photographs taken
by the photographer, PW-79, P.K. Gottam, which he had summoned.
The witness testified that he had prepared the three comparison charts
in this regard as Ex.PW-76/B, PW-76/C and PW-76/D, and his detailed
report as Ex.PW-76/E. The footage taken in a CD and pen drive was             G
sealed in PW-67's presence and as the recording was automatic data
being fed on regular basis into the hard disk, the question of tampering
with the same could not arise. PW-79, P.K. Gottam, from CFSL, CBI,
has stated in his examination that he took photographs of the bus bearing
No.DL-1 P-C-0149 parked at Thyagraj Stadium, INA, New Delhi from
                                                                              H
110            SUPREME COURT REPORTS                          [2017] 6 S.C.R.


A     different angles on 17.12.2012 and 18.12.2012 and handed over the same
      to PW-76. The said photographs were marked as BI in Ex.PW-76/B; as
      Cl and C2 in Ex.PW-76/C; and as DI in Ex.PW-76/D. He has deposed
      as to the genuineness of the photographs by deposing that the software
      used for developing the photographs was tamper proof.
B            100. Once it is proved before the court through the testimony of
      the experts that the photographs and the CCTV footage are not tampered
      with, there is no reason or justification to perceive the same with the
      lens of doubt. The opinion of the CFSL expert contained in the CFSL
      report marked as Ex.PW-76/E authenticates that there was no tampering
      or editing in both the exhibits, Ex.P-67/1 and Ex.P- 6712, and that a bus
c     having identical patterns as the one parked at 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. The contents of the report is also admitted to be tme by its author,
      PW-76, Gautam Roy. Quite apart from that, it is perceptible that the
D     High Court, in order to satisfy itself, had got the CCTV footage played
      during the hearing and found the same to be creditworthy and acceptable.
         101. As the narrative proceeds, the next step was to find out the
  bus. The identity of the bus in the CCTV footage was known and the
  said knowledge could propel the prosecution to move for recovery. We
E may start from the beginning. The bus, Ex. P-1, bearing registration No.
  DL-1 P-C-0149, is the vehicle alleged to have been involved in the incident.
  PW-74, SI Subhash Chand, on 17.12.2012, along with PW-I, the
  informant,.and PW-80, WSI Pratibha Singh, went to Munirka bus stand
  from where the victims had boarded the alleged bus, Ex. P-1, and. then
  to Mahipalpur to the spot where both the victims were thrown off the
F bus on 16.12.2012. Afterthe collection of exhibits from the spot, PW-74
  and PW-80 went to the hotels opposite the spot having CCTV cameras
  installed and amongst those was Hotel Delhi 37. At the said hotel, the
  informant/PW-! identified the bus they had boarded in the CCTV footage
  of the road and the relevant footage of the recording was taken in a pen
G drive and CD and was handed over to the Investigating Officer as Ex.
  PW-67/A. Later in the day, secret information was received by PW-80
  that the alleged bus was parked at Sector 3, R.K. Puram. PW-74
  accompanied PW-80 and PW-65, Ct Kripal Singh, to Ravidass Camp
  where a bus matching the description given by PW-1 was parked near
  the Gurudwara. It was white in colour with 'Yadav' written on the side.
H
      MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                           111
                    [DTPAK MISRA, J.]

When the police approached the bus, A-1, Ram Singh, got down from it           A
and started to run; he was later apprehended in a chase by PW-74 and
PW-65. From A-1, the fitness certificate, PUC ahd other documents
regarding the registration of the vehicle DL-1PC-0149 were seized as
Ex. PW-74/I, PW-74/J and PW-74/K. The entry door of the bus was
ahead of the front wheel and the wheel cap was missing from the front          B
tyre. After recovery of the burnt clothes at the behest of A I, he was
sent to the police station with PW-65. PW-42, Ct. Suresh Kumar, was
called to the spot and he drove the bus to Thyagraj Stadium around 5 :45
p.m. on the same day. An inspection of the bus was conducted inside
the stadium and the CFSL team lifted Ex. PW-74/P. Thereafter, PW-32,
SI Vishal Chaudhary, and PW-33, ST Vikas Rana, were called from police         C
station Kotla Mubarakpur to guard the bus.
       I 02. Mr. Singh has raised the following issues with respect to the
identification and recovery of the alleged bus:
         1. CCTV footage was not properly examined to check all possible
             buses plying on the said route;                                   D
         2. The bus was taken to Thyagraj Stadium instead of the Police
            Station to avoid the media and to better facilitate the planting
            of evidence; and
         3. PW-81, Dinesh Yadav, owner of the Bus was in judicial custody
             for 6 months before his examination in the Court and he was       E
             so detained in custody to bring pressure upon him.
        I 03. Mr. Singh has made bald allegation that the bus, Ex P-1, was
falsely implicated and that all the DNA evidence recovered therefrom
was actually planted. He contends that the bus, Ex. P-1, was sent to
Thyagraj Stadium instead of the concerned Police Station, PS Vasant            F
Vihar, with the deliberate intention of avoiding the media attention so
that the evidence could be planted easily. This argument is in furtherance
of his false implication theory. He has, however, provided no further
specific assertions to cast a doubt in our mind that the police has planted
the evidence in the bus.                                                       G
        104. Mr. Luthra, in his tum, relying on the decision of the Delhi
High Court in Manjit Singh v. State4 9, has placed statistics before us
pointing to the paucity of physical space in police stations across the
city. In Manjit Singh (supra), the High Court had ordered the Delhi
49
     214 (2014) DLT 646                                                        H
112             SUPREME COURT REPORTS                           [2017) 6 S.C.R.



 A    Police to furnish data regarding case properties with the Police. The
      High Court noted that there was an accumulation of "2,86,741 case
      properties including 25,547 vehicles, out of which as many as 2,479
      properties are lying in public places outside the police stations". Given
      the state of affairs, the submission put forth by Mr. Luthra is acceptable.
      There is dearth of space inside the police stations in Delhi and the use of
 B
      Thyagraj Stadium as parking lot in the present case does not necessarily
      mean that there was any ma/a fide intention on the part of the investigating
      agency without any specific assertion to advance the said bald allegation.
             105. It may also be noted that on 17.12.2012, PW-42, Ct. Suresh
      Kumar, drove the bus from Ravidass Camp to Thyagraj Stadium around
.C    5:45 p.m. along with PW-74 and PW-80. About 6: 15 p.m., PW-32, SI
      Vishal Chaudhary, along with Ct. Amit, both of PS Kotla Mubarakpur,
      were sent to Thyagraj Stadium where on the instructions of         PW-80,
      SI Pratibha, PW-32, guarded the bus till 8:00 a.m. the next day. On
      18.12.2012, he handed over the charge of guarding the bus to PW-33, SI
 D    Vikas Rana, PS Kotla Mubarakpur, and he guarded the bus till 8:30 p.m.,
      until after the CFSL team left. Thus, the criticism as regards the parking
      of the bus at Thyagraj Stadium and not at the Police Station pales into
      insignificance.
            Reliability of the testimony of PW-81 (the owner of the bu~)
 E           106. Having dealt with the recovery of the bus, it is necessary to
      dwell upon the contention put forth by the learned counsel for the
      appellants which pertains to the acceptability and reliability of the
      testimony of PW-81, Dinesh Yadav. The principal contention in this
      regard is that PW-81, Dinesh Yadav, the owner of the bus, was in judicial
. F   custody and, therefore, his version in the court is under tremendous
      pressure as he was desirous of getting a bail order to enjoy his liberty.
      Highlighting this aspect, it is urged by Mr. Sharma and Mr. Singh, learned
      counsel for the appellants, that the testimony of the said witness deserves
      to be totally discarded.
 G           107. PW-81, Dinesh Yadav, is a transporter and owns 8 to JO
      buses including Ex. P-1. He runs the buses under the name 'Yadav
      Travels'. He was examined by the prosecution to prove that A-1, A-2
      andA-3 are connected with the bus, Ex. P-1. In his examination, PW-81
      admitted that the word 'Yadav' is written across Ex. P-1 and that it is
      white in colour with yellow stripes. PW-81 stated that A-1, Ram Singh
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             113
                          [DIPAK MISRA, J.]

(since deceased), was the driver of the said bus.in December 2012, A-          A
3, Akshay Kumar Singh, was his helper and the bus was usually parked
by A-1, Ram Singh, in R.K. Puram, near his residence. The bus was
attached to Birla Vidya Niketan School, Pushp Vihar, New Delhi to ferry
students in the morning and also to a Company, M/s Net Ambit, Sector
132, Noida, to take its employees from Delhi to Noida. On 17.12.2012,
                                                                               B
the bus went from Delhi to Sector 132, Noida to take the staff of M/s
Net Ambit to their office and PW-81 was informed by A-1, Ram Singh,
or A-2, Mukesh, that the bus was checked at the DND toll plaza on their
route to Noida.
        108. Learned counsel Mr. Singh has asserted that PW-81 was
kept in judicial custody to obtain a statement favourable to the prosecution
                                                                               c
in the present case. In this aspect, it is noted that PW-81 also stated that
he was kept in judicial custody. The arrest was, however, not made in
the present case; it was in connection with another case in relation to
providing incorrect address to the Transport Authority. He was lodged in
jail in case FIR No. 02/2013 of PS Civil Lines under Sections 420, 468,        D
471 WC. PW-81 had provided his friend's address as his own at the
time of registration and was arrested on a complaint made by the
Transport Authority. He was named in the charge-sheet in the present
case and was cited as a witness at serial No. 36 but was dropped by the
prosecution on 28.05.2013. Later on, his examination was sought by
way of an application under Section 311 CrPC. The application was              E
allowed by the trial court order dated 03.07.2013 on the ground that he
was the owner of the bus and his examination was necessary to prove
as to whom he had handed over the custody of the bus on the night of
the incident, i.e., 16.12.2012. It is limpid from the deposition of PW-81
that he was in judicial custody for a separate offence and, therefore, it is   F
difficult to accede to the argument advanced by Mr. Singh that he was
under pressure to support the version of the prosecution.
       109. Apart from the above, the prosecution, in order to place A-1
as the driver of the bus, Ex. P-1, has examined PW-16, Rajeev Jakhmola.
PW-16, Manager (Admn) ofBirla Vidya Niketan School, Pushp Vihar,               G
handled their transport. In his examination, he stated that PW-81, Dinesh
Yadav, had provided the school with 7 buses on contract basis including
Ex. P-1 and that A-1, Ram Singh, was its driver. He also submitted a
copy ofRamSingh's Driving Licence to the Police along with the copy
of the agreement of the school with the owner of the bus, copy of the
                                                                               H
114             SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A     RC, copy of the fitness certificate, certificate of third party technical
      inspection, pollution certificate, two copies of certificate-cum-policy
      schedule (Insurance), copy of certificate of training undergone by accused·
      Ram Singh, copy of permit and list of the transporters, collectively as
      Ex. PW-16/A.
B             110. Thus, according to the prosecution, from the evidence of
      PW-16, Rajeev Jakhmola, and PW-81, Dinesh Yadav, it stands proved
      that the bus in question was routinely driven by Ram Singh. When an
      argument was raised before the High Court over the veracity of PW-
      81 's testimony, it recorded as under:

c           "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.DLl PC-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
D           as a chartered bus for taking the officials ofM/s. Net Ambit from
            Delhi to Noida. He further stated in cross-examination that on
            17.12.2012, the bus took the staff ofM/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
E           the bus stand of Sector 37, where according to PW-44 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."
 F
             111. The aforesaid analysis commends our approval because we,
      having analysed the said aspect on our own, have arrived at the same
      conclusion. There is no trace of doubt that the testimony of the said
      witness withstands close scmtiny and there is no reason to treat it with
      any kind of disapproval. That apart, the evidence of PW-16 corroborates
G     the testimony of the owner of the bus.
            Personal search and statements of disclosure leading to
      recovery
             112. Learned counsel for the appellants have seriously questioned
      the arrest of the accused persons and the recoveries made pursuant to
H
        MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                           115
                      [DIPAK MISRA, J.]

    the said arrest. It is the stand of the prosecution that pursuant to the     A
    arrest of all the accused A-1 to A-5, there were disclosure statements
    recorded under Section 27 of the Evidence Act which led to recoveries
    of incriminating articles such as objects belonging to the victims as also
    objects which have been linked orally or scientifically (such as through
    DNA profiling) to the prosecutrix and PW-I. These material objects           B
    recovered are used to link the convicts with the crime and corroborate
    the version of the eye witness PW-I and the dying declaration of the
    deceased victim.


-          113. First, we shall refer to the arrest of Ram Singh and the
    recoveries made at his instance. As already stated, on 17.12.2012, PW-
    80, SI Pratibha Sharma, had spotted accused Ram Singh sitting in the         C
    offending bus, Ex.PI, which was parked at Ravidass Camp, R.K. Puram,
    New Delhi. On seeing the police, Ram Singh got down from the bus and
    started running. He was chased and instantly arrested at 4: 15 p.m. vide
    memo Ex.PW-74/D and subsequently, his personal search was conducted
    vide memo Ex.PW-74/E and his disclosure Ex.PW-74/F was recorded.             D
    Notably, Ram Singh has led to several important discoveries and seizures
    from inside the bus.
           114. Accused Mukesh was apprehended on 18.12.2012 from
    village Karoli, Rajasthan, by a team headed by PW-58, SI Arvind. He
    produced accused Mukesh before PW-80, SI Pratibha Sharma, the                E
    Investigating Officer, at Safdarjung Hospital in muffled face alongwith a
    mobile, Samsung Galaxy Duos, Ex.P-6, seized by hervide memo Ex.PW-
    58/A. The accused was arrested at 6:30 p.m. on 18-12-2012 by her
    vide memo Ex.PW-58/B and his personal search was conducted vide
    memo Ex.PW-58/C. The accused pointed the Munirka bus stand vide
    memo Ex.PW-68/K and the dumping spot vide memo Ex.PW-68/L. This              F
    Samsung Galaxy phone was identified to be that of PW-I, the informant.
           115. On 23.12.2012, accused Mukesh led the police to Anupam
    Apartment, garage No. 2, Saidulajab, Saket, New Delhi, and got
    recovered a green colour T-shirt, Ex.P-48/1, on which the word "play
    boy" was printed; a grey colour pant, Ex.P-48/2, and a jacket, Ex.P-48/      G
    3, of bluish grey colour, all seized vide memo Ex.PW-48/B. The
    Investigating Officer also prepared the site plan, Ex.PW-SO/I, of the
    place of recovery. On 24.12.2012, accused Mukesh also got prepared a
    route chart Ex.PW-80/H.
                                                                                 H
116            SUPREME COURT REPORTS                        [2017] 6 S.C.R.



A            116. On 18.12.2012, accused Ram Singh led the Investigating
      Officer to Ravidass Camp and pointed towards his associates, namely,
      accused Vinay and accused Pawan. Accused Pawan was apprehended
      and arrested about I: 15 p.m. vi de memo Ex. PW-60/A; his disclosure,
      Ex.PW-60/G, was recorded and his personal search was conducted vide
      memo Ex.PW-60/C. Accused Pawan Gupta pointed out the Munirka
                                                                                 -
B
      bus stand and a pointing out memo Ex.PW-68/I was prepared. He also
      pointed the dumping spot and memo Ex.PW-68/J was prepared in this
      regard.
             117. On 19.12.2012, from accused Pa wan Gupta, PW-80, got
      effected the following recoveries:
c
            (a) Wrist watch Ex.P3 seized vide memo Ex.PW-68/G;
            (b) Two currency notes of denomination ofRs.500/- Ex.P-7 colly
                were seized vide memo Ex.PW-68/G;
            (c) Clothes worn by the accused at the time of the incident seized
D               vide memo Ex.PW-68/F; and
            (d) Black coloured sweater having grey stripes with label
               Abercrombie and Fitch Ex.P-68/6 and a pair of coca~cola
               colour pants Ex.P-68/7 colly; underwear having elastic labeled
               Redzone Ex.P-68/8 and a pair of sports shoes with Columbus
 E             inscribed on them as Ex.P-68/9.
             It may be stated here that Sonata wrist watch, Ex. P3, was
      identified as that of PW- I.
             118. On 18.12.2012, about I :30 p.m., accused Vi nay Sharma was
      arrested in front ofRavidass Mandir, Main Road, Sector-3, R.K. Puram,
 F
      New Delhi vide arrest memo Ex.PW-60/B; and his disclosure Ex.PW-
      60/H was also recorded. He pointed out the Munirka bus stand from
      where the victims were picked up vide memo Ex.PW-68/l and he also
      pointed out Mahipalpur Flyover, the place where the victims were thrown
      out of the moving bus vide pointing out memo Ex.PW-68/J. On
G     19.12.2012, he led to the following recoveries:
            (a) Hush Puppies shoes Ex.P-2 seized vide memo Ex.PW-68/C;
                and
            (b) Nokia mobile phone Ex.P-68/5 of the prosecutrix seized vi de
                memo Ex.PW-68/D.
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                           117
                 [DIPAK MISRA, J.]

       Hush Puppies shoes, Ex. P2, were identified to be that of PW-I,      A
the informant. Nokia Mobile Phone, Ex. P-68/5, was identified to be
that of the prosecutrix.
      119. On 19.12.2012, pursuant to his supplementary disclosure
statement Ex.PW-68/A, the following recoveries were made by the
accused vide seizure memo Ex.PW-68/B:                                       B
      (a) One blue coloured jeans having monogram of Expert Ex.P-
          68/1;
      (b) A black coloured sports jacket with white stripes and a
         monogram of moments as Ex.P-68/3 and a pair of rubber
         slippers as Ex.P-68/4.                                             C
       120. During the personal search ofVinay Sharma, the following
article was recovered:
      (a) Nokia mobile phone with IMEi No. 35413805830821418
          belonging to the acci1sed, which was returned to him on           D
         superdari vi de order dated 4-4-2013
       121. On 21.12.2012, about 9:15 p.m., accused Akshay Kumar
Singh @Thakur was arrested from village Karmalahang, P.S. Tandwa,
District Aurangabad, Bihar vi de memo Ex.PW-53/ A and on 21.12.2012
and 22.12.2012, his disclosures, Ex.PW-53/I and Ex.PW-53/D,                 E
respectively were recorded. On 22. 12.2012, he got effected the following
recoveries from the residence of his brother, Abhay, from the rented
house of one Tara Chand, village Naharpur, Gurgaon, viz;
      i. Blood stained jeans (Ex.P-53/3) worn by the accused at the
         time of the incident, recovered from a black bag (Ex.P-53/2)
                                                                            F
      ii. A blue black coloured Nokia mobile phone (Ex.P-53/1)
      iii. Blood-stained red coloured banian (vest).
       122. On 27.12.2012, he got recovered the informant's Metro card
Ex.P-5 and the informant's silver ring, Ex.P-4, from House No. 1943,
3rd Floor, Gali No.3, Raj iv Nagar, Sector-14, Gurgaon, Haryana.            G
     123. Le~med counsel for the appellants and learned amicus, Mr.
Hegde, have vehemently criticized the arrest and recoveries that have
been made or effected. It is urged by Mr. Sharma that the appellant
Mukesh was not in custody when the recovery took place and additionally,
                                                                            H
118            SUPREME COURT REPORTS                         [2017] 6 S.C.R.


A     he was not produced before the nearest Magistrate within twenty-four
      hours from the time of detention. Mr. Luthra, in his turn, would submit
      that the said accused was formally arrested at Delhi and, thereafter, the
      recovery on the basis of his disclosure took place. Mr. Singh, learned
      counsel, contended that the disclosure statements which have been
      recorded by the police do tantamount to confessional statements relating
B
      to the involvement and commission of the crime. This argument requires
      to be squarely dealt with. For appreciating the said submission, it is
      necessary to appreciate the inter-se relationship between the accused
      persons and thereafter dwell upon the process of the arrest and judge
      the acceptability on the anvil of the precedents in the field.
c             124. As the evidence brought on record would show, the accused
      persons were known to each other. Mukesh, A-2, and deceased Ram
      Singh,A-1, were brothers. According to the testimony ofDinesh Yadav,
      PW-81, Ram Singh was the driver of the bus and A-3, Akshay, was
      working as a helper in the bus. The same is manifest from the Attendance
D     Register, Ex. P-81/2, seized vide Ex. PW-80/K and the Driving License
      of A-1, Ram Singh, Ex. P-74/4, seized vide Ex. PW-74/1. From the
      testimony of PW-13, Brijesh Gupta, and PW-14, Jiwant Shah, it is evident
      that Ram Singh and Mukesh were brothers. From the evidence of
      Champa Devi, DW-5, mother of Vi nay, A-4, it is quite clear that Vinay,
      Pawan, A-5, and Ram Singh, A-I, were known to each other. Mukesh,
 E
      in his statement under Section 313 CrPC, has admitted that he and Ram
      Singh are brothers. A-3, Akshay, in his statement under Section 313
      CrPC, has admitted that he was working with Ram Singh in the bus, Ex.
      P-1, as a helper. He has also admitted that he knew Ram Singh and
      there had been altercation on 16.12.2012 with A-1, Ram Singh. A-5,
 F    Pawan, in his statement under Section 313 CrPC, admitted that he was
      a witness to the quarrel between A-4, Vinay, and A-1, Ram Singh. From
      the aforesaid evidence, it is luminous that all the accused persons were
      closely associated with each other.
             125. Having dealt with this facet, we shall now proceed to meet
 G    the criticism advanced by the learned counsel for the appellants with
      regard to the recoveries and the disclosure statements that led to the
      discoveries.
            126. Assailing the acceptability of the arrest and the disclosure
      statements leading to the recoveries, Mr. Sharma and Mr. Singh have
 H    contended that the materials brought on record cannot be taken aid of
          MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                                                          119
                        [DIPAK MISRA, J.]

for any purpose since the items seized have been planted at the places                                            A
of recovery and a contrived version has been projected in court. That
apart, it is submitted that the,recoveries are gravely doubtful inasmuch
as the prosecution has not seized all the articles from one accused on
one occasion but on various dates. We have cleared the maze as regards
the arrest and copiously noted the manner of arrest of the accused persons                                        B
and their leading to recoveries. Be it noted, recovery is a part of
investigation and permissible m1der Section 27 of the Evidence Act.
However, Mr. Sharma has raised a contention that this Court should
take note of the fact that Section 27 of the Evidence Act has become a
powerful weapon in the hands of the prosecution to rope in any citizen.
The said submission, as we perceive, is quite broad and specious. It is                                           c
open to the defence to find fault with recovery and the manner in which
it is done and its relevance. It is not permissible to advance an argument
that Section 27 of the Evidence Act is constantly abused by the prosecution
or that it uses the said provision as a lethal. weapon against anyone it
likes. In the instant case, we have noted how the recoveries have been
                                                                                                                  D
made and how they have been proved by the unimpeachable testimony
of the prosecution witnesses.
       127. Mr. Luthra, learned senior counsel appearing for the State,
would submit that in the present case, the material objects recovered
serve as links to corroborate and they have been used as the law permits.
In this regard, he has filed a chart which we think it appropriate to                                             E
reproduce for better appreciation of the said aspect. It is as follows:
    "S.   Accu-w-d   Time of    Place     ,.olunt.ary    Personal It.ems    Reco\'ery of Items    Recove1:r of
    Xo.              Arrest       of      Disdosure       Reco\"ered        belonging to P\Yl        Item~
                                Arrest                                                              belonging
                                                                                                   to Prosecut-
                                                                                                        ri1:
    I     Ram        4.15       Ra.-.i   Elc PW 74 F     T-Shirt-DNA        Parth unburnt clothes Debit CJrd      F
          Singh      l'M.,      Dass                     and brown          (the DNA profile of    in the nam~
                     17.11.12   Camp                     c-0lour chappll-   tht'. Complainant was. of Asha
                                                         DNA(Etc PW-        found to match those Ded
                                                         7411.)             found on these         (Ex. PW-
                                                                            clothe>.)              04;H)
                                                         UNIX mobile
                                                         phone with         (Ex. PW. 74/~I)
                                                         1ITNLSim
                                                                                                                  G



                                                        r-··
                                         Pursuant to    (lro~ ~ods (EI.
                                         the disclosure P\\-;41G)
                                         stattment-
                                         rod             Bus(Ex.PW
                                                         7411)
                                                         Bus Keys (E:i:.
                                                         P\Y-75/J)
                                                         Bus(Ex.PW.
I                                                        WK)                                                      H
120              SUPREME COURT REPORTS                                       [2017] 6 S.C.R.


A     2 Mukesh 630      Apprehended in Ex.PW-601 Agreen Tcshin- Samsung Galaxy       Samsung
               P.M.,    Karoli,                  DNA, agrey Duos (fa.PW-             Galaxy
               l&.12.12 Rajasthan                pant and a     SSiA)                identified as
                        formallv                 bluish-mv                           that of PW-I
                        armtedat                 jacket
B                       Safdarjung               (EI.P\\~48/B)
                        Hospital
      l Akshar 9:15     Karmala-hang, Ex.PWi3J Blood-Stained Metro Card
               nt,      Tandwa,        AND       JemandBhck Silver Ring
                        Aurangabad
               21.12.12                Ex.PW53:D Bag Blue Black
                                                 coloured Nokia
c                                                mobile phone
      4 Vinay   1:15     In front of   Ex.PW      Bluejeans.         Hush P-uppies   Hush-
                P.M      Ravidm Mandir 60;H       Black S2oru        Shoes           Puppies
                l&.12.12                          jacket ·,1ith      (EI. P\HSIC)    shoes
                                       Ex.PW      white stripes,     Nokia mobile    identified as
D                                                 rubber slippers,                   thatofFW-
                                       6S:A                          phone (Ix.PW-
                                                  black full-                        1,
                                                                     681D)
                                                  slmed t-shin                       Nolda
                                                  (II. P\V-68/B)                     mobile
                                                  Nolda mobile                       phone
                                                  phone                              identified as
E                                                                                    t~atof
                                                                                     prosecutrix
      5 Pawan 1:30     In front of    Ex.PW       Blackswwer Wrist watch (Ix. Sonata 11nst
              P.M.,    Ravidas Mandir 60:G        haring grey     PW-68/G),          watch
              18.12.12                            stripes, Coca- Two currencvnotes identified
F                                                 cola colour     of denominatloo of byPW-l as
                                                  pants, under- Rs.500'-(sm in belon~ngto
                                                  wear ha1ing     disdomrethathe him
                                                  elastic labeled got Rs.I 000 as a
                                                  Red zone, Apair pan of the loot)
                                                  of sportl shoes (II. PW-681G)
G                                                 (II. P\Y-681F)




H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                                  121
                 [DTPAK MISRA, J.]

      128. Having reproduced the chart, now we shall refer to certain              A
authorities on how a statement of disclosure is to be appreciated. In
Pulukuri Kottaya v. Emperor5°, it has been observed:
      "[I]t is fallacious to treat the 'fact discovered' within the section
      as equivalent to the object produced; the fact discovered embraces
      the place from which the object is produced and the knowledge                B
      of the"'accused as to this, and the information given must relate
      distinctly to this fact. Information as to past user, or the past history,
      of the object produced is not related to its discovery in the setting
      in which it is discovered. Information supplied by a person in
      custody that 'I will produce a knife concealed in the roof of my
      house' does not lead to the discovery of a knife; knives were
                                                                                   c
      discovered many years ago. It leads to the discovery of the fact
      that a knife is concealed in the house of the informant to his
      knowledge, and if the knife is proved to have been used in the
      commission of the offence, the fact discovered is very relevant.
      But if to the statement the words be added 'with which I stabbed             D
      A', these words are inadmissible since they do not relate to the
      discovery of the knife in the house of the informant."
       129. In Delhi Administration v. Bal Kris/tan and others 51 , the
Court, analyzing the concept, use and evidentiary value of recovered
articles, expressed thus:                                                          E
      "7 .... Section 27 of the Evidence Act permits proofof so much of
      the information which is given by persons accused of an offence
      when in the custody of a police officer as relates distinctly to the
      fact thereby discovered, in-espective of whether such information
      amounts to a confession or not. Under Sections 25 and 26 of the              F
      Evidence Act, no confession made to a police officer whether in
      custody or not can be proved as against the accused. But Section
      27 is by way of a proviso to these sections and a statement, even
      by way of confession, which distinctly relates to the fact discovered
      is admissible as evidence against the accused in the circumstances
      stated in Section 27 .... "                                                  G
      130. In Mohd. Inayat11//ah v. State of Maharashtra 52 , dealing

'° AIR 1947 PC 67
" (1972) 4 sec 659
" (1976) 1 sec 828
                                                                                   H
122               SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A     with the scope and object of Section 27 of the Evidence Act, the Com1
      held:
               "12. The expression "provided that" together with the phrase
               "whether it amounts to a confession or not" show that the section
               is in the nature of an exception to the preceding provisions
B              particularly Sections 25 and 26. It is not necessary in this case to
               consider if this section qualifies, to any extent, Section 24, also. It
               will be seen that the first condition necessary for bringing this
               section into operation is the discovery of a fact, albeit a relevant
               fact, in consequence of the information received from a person
               accused of an offence. The second is that the discovery of such
c              fact must be deposed to. The third is that at the time of the receipt
               of the information the accused must be in police custody. The last
               but the most important condition is that only "so much of the
               information" as relates distinctly to the fact thereby discovered
               is admissible. The rest of the information has to be excluded: The
D              word "distinctly" means "directly", "indubitably", "strictly",
               "unmistakably". The word has been advisedly used to limit and
               define the scope of the provable information. The phrase "distinctly
               relates to the fact thereby discovered" is the linchpin of the
               provision. This phrase refers to that part of the information supplied
               by the accused which is the direct and immediate cause of the
 E             discovery. The reason behind this partial lifting of the ban against
               confessions and statements made to the police, is that if a fact is
               actually discovered in consequence of information given by the
               accused, it affords some guarantee oftrnth of that part, and that
               part only, of the information which was the clear, immediate and
 F             proximate cause of the discovety. No such guarantee or assurance
               attaches to the rest of the statement which may be indirectly or
               remotely related to the fact discovered.
               13. At one time it was held that the expression "fact discovered"
               in the section is restricted to a physical or material fact which can
G              be perceived by the senses, and that it does not include a mental
               fact (see Sukhan v. Crown 53 ; Rex v. Ganee54 ). Now it is fairly
               settled that the expression "fact discovered" includes not only the
               physical object produced, but also the place from which it is
      53
           AIR l 929 Lah 344
      54   AIR I 932 Bom 286
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             123
                 [DIPAK MISRA, J.]

      produced and the knowledge of the accused as to this (see               A
      Palukuri Kotayya v. Emperor; Udai Bhan v. State of Uttar
      Pradesh 55 ).
       13 l. Analysing the earlier decisions, in Anter Singh v. State of
Rajasthan 56 , the Court summed up the various requirements of Section
27 as follows:                                                           B
      "( 1) The fact of which evidence is sought to be given must be
      relevant to the issue. It must be borne in mind that the provision
      has nothing to do with the question of relevancy. The relevancy
      of the fact discovered must be established according to the
      prescriptions relating to relevancy of other evidence connecting it     c
      with the crime in order to make the fact discovered admissible.
      (2) The fact must have been discovered.
      (3) The discovery must have been in consequence of some
      information received from the accused and not by the accused's
      own act.                                                                D
      (4) The person giving the information must be accused of any
      offence.
      (5) He must be in the custody of a police officer.
      (6) The discovery of a fact in consequence of information received      E
      from an accused in custody must be deposed to.
      (7) Thereupon only that portion of the information which relates
      distinctly or strictly to the fact discovered can be proved. The rest
      is inadmissible."
       132. In State (NCT of Delhi) v. Navjot Sa11dh11 alias Afmn             F
      57
G11ru , the Comt referred to the initial prevalence of divergent views
and approaches and the same being put to rest in Pulukuri Kottaya
case (supra) which has been described as locus classicus, relying on
the said authority, observed:
      "120. To a great extent the legal position has got crystallised with    G
      the rendering of this decision. The authority of the Privy Council's
      decision has not been questioned in any of the decisions of the
" AIR 1962 SC 1116
" (2004) 1osec 657
" (2005) 11 sec 600                                                           H
124      SUPREME COURT REPORTS                            [2017) 6 S.C.R.



·A    highest court either in the pre-or post-independence era. Right
      from the 1950s, till the advent of the new century and till date, the
      passages in this famous decision are being approvingly quoted
      and reiterated by the Judges of this Apex Court. Yet, there reinain
      certain grey areas as demonstrated by the arguments advanced
      on behalf of the State."
B
      133. Explaining the said facet, the Court proceeded to state thus:
      "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
c     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.
D     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
 E     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
 F     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. As pointed
       out by the Privy Council in Kottaya case:
 G       "clearly the extent of the information admissible must depend
         on the exact nature of the fact discovered"
      and the information must distinctly relate to that fact.
      Elucidating the scope of this section, the Privy Council speaking
      through Sir John Beaumont said:
 H
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            125
              [DIPAK MISRA, J.]

     "Normally the section is brought into operation when a person        A
     in police custody produces from some place of concealment
     some object, such as a dead body, a weapon, or ornaments,
     said to be connected with the crime of which the informant is
     accused.""
  134. Expatriating the idea further, the Court proceeded to lay down:    B
 "121. .... We have emphasised the word "normally" because the
 illustrations giveri by the learned Judge are not exhaustive. The
 next point to be noted is that the Privy Council rejected the
 argument of the counsel appearing for the Crown that the fact
 discovered is the physical object produced and that any and every        c
 information which relates distinctly to that object can be proved.
 Upon this view, the information given by a person that the weapon
 produced is the one used by him in the commission of the murder
 will be admissible in its entirety. Such contention of the Crown's
 counsel was emphatically rejected with the following words:
                                                                          D
   "If this be the effect of Section 27, little substance would remain
   in the ban imposed by the two preceding sections on confessions
   made to the police, or by persons in police custody. That ban
   was presumably inspired by the fear of the legislature that a
   person under police influence might be induced to confess by
   the exercise of undue pressure. But if all that is required to lift    E
   the ban be the inclusion in the confession of information relating
   to an object subsequently produced, it seems reasonable to
   suppose that the persuasive powers of the police will prove equal
   to the occasion, and that in practice the ban will lose its effect."
 Then, Their Lordships proceeded to give a lucid exposition of the        F
 expression "fact discovered" in the following passage, which is
 quoted time and again by this Court:
   "In Their Lordships' view it is fallacious to treat the 'fact
   discovered' within the section as equivalent to the object produced;
   the fact discovered embraces the place from which the object is        G
   produced and the knowledge of the accused as to this, and the
   information given must relate distinctly to this fact. Information
   as to past user, or the past history, of the object produced is not
   related to its discovery in the setting in which it is discovered.
   Information supplied by a person in custody that 'I will produce
                                                                          H
126            SUPREME COURT REPORTS                            [20 l 7] 6 S.C.R.


A            a knife concealed in the roof of my house' does not lead to the
             discovery of a knife; knives were discovered many years ago. It
             leads to the discovery of the fact that a knife is concealed in
             the house of the informant to his knowledge, and if the knife
             is proved to have been used in the commission of the offence,
             the fact discovered is very relevant. But if to the statement the
B
             words be added 'with which I stabbed A' these words are
             inadmissible since they do not relate to the discovery of the knife
             in the house of the informant."
                                                            (emphasis supplied)

c           122. The approach of the Privy Council in the light of the above
      exposition of law can best be understood by referring to the statement
      made by one of the accused to the police officer. It reads thus:
            " ... About 14 days ago, I, Kottaya and people of my party lay in
            wait for Sivayya and others at about sunset time at the corner of
D           Pulipad tank. We, all beat Beddupati China Sivayya and Subayya,
            to death. The remaining persons, Pullayya, Kottaya and Narayana
            ran away. Dondapati Ramayya who was in our party received
            blows on his hands. He had a spear in his hands. He gave it to me
            then. I hid it and my stick in the rick of Venkatanarasu in the
            village. I will show if you come. We did all this at the instigation of
 E          Pulukuri Kottaya."
            The Privy Council held that:
            "14. The whole of that statement except the passage 'I hid it (a
            spear) and my stick in the rick ofVenkatanarasu in the village. I
            will show if you come' is inadmissible."
 F
                                                             (emphasis supplied)
            There is another important observation at para 11 which needs to
            be noticed. The Privy Council explained the probative force of
            the information made admissible under Section 27 in the following
 G          words:
             "Except in cases in which the possession, or concealment, of an
             object constitutes the gist of the offence charged, it can seldom
             happen that information relating to the discovery ofa fact forms
             the foundation of the prosecution case. It is only one link in the
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            127
                  [DIPAK MISRA, J.]

         chain of proof, and the other links must be forged in manner         A
         allowed by law." "
        135. In the instant case, the recoveries made when the accused
 persons were in custody have been established with certainty. The
 witnesses who have deposed with regard to the recoveries have remained
 absolutely unshaken and, in fact, nothing has been elicited from them to     B
 disprove their creditworthiness. Mr. Luthra, learned senior counsel for
 the State, has not placed reliance on any kind of confessional statement
 made by the accused persons. He has only taken us through the
 statement to show how the recoveries have taken place and how they
 are connected or linked with the further investigation which matches the
 investigation as is reflected from the DNA profiling and other scientific
                                                                              c
 evidence. The High Court, while analyzing the facet of Section 27 of
 the Evidence Act, upheld the argument of the prosecution relying on
. State, Govt. of NCT of Del/ti v. Sunil and anotlter58 , Sunil Clifford
  Daniel v. State of Punjab 59 , As/wk Kumar Chaudhary and others v.
  State of Bihar" 0 , and Pramod Kumar v. State (Government of NCT D
  of Dellti)6'.
         136. On a studied scrutiny of the arrest memo, statements recorded
 under Section 27 and the disclosure made in pursuance thereof, we find
 that the recoveries of articles belonging to the informant and the victim
 from the custody of the accused persons cannot be discarded. The             E
 recovery is founded on the statements of disclosure. The items that
 have been seized and the places from where they have been seized, as
 is limpid, are within the special knowledge of the accused persons. No
 explanation has come on record from the accused persons explaining as
 to how they had got into possession of the said articles. What is argued
 before us is that the said recoveries have really not been made from the     F
 accused persons but have been planted by the investigating agency with
 them. On a reading of the evidence of the witnesses who constituted
 the investigating team, we do not notice anything in this regard. The
 submission, if we allow ourselves to say so, is wholly untenable and a
 futile attempt to avoid the incriminating circumstance that is against the   G
 accused persons.

 " (2001) 1 sec 652
 " (2012) 11sec205
 oo. (2008) 12 sec 113
 " (20 t 3) 6 sec 588
                                                                              H
128             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A            Test Identification Parade and the identification in Court
             137. Now, we shall deal with the various facets of test identification
      parade. Upon application moved by PW-80, SI Pratibha Sharma,
      Investigating Officer, PW-17, Sandeep Garg, Metropolitan Magistrate,
      conducted the Test Identification Parade (TIP) for the accused Ram
B     Singh (since deceased), who refused to participate in the TIP proceedings
      on the ground that he was shown to the witnesses in the police station.
      Since accused Ram Singh died during the trial, neither the trial court nor
      the High Court delved into this aspect regarding the refusal of accused
      Ram Singh to participate in the TIP proceedings.
c           138. On 19.12.2012, PW-17, Sandeep Garg, Metropolitan
      Magistrate initiated TIP proceedings for accused Vinay and Pawan, but
      they refused to participate in the TIP. In the TIP proceedings, the
      Metropolitan Magistrate has recorded the following:-
             " .............. accused Pa wan Kumar@ Kalu and accused Vi nay,
D            both refused to participate in the TIP proceedings and stated that
             they had committed a horrible crime. I recorded their refusal and
             gave certificate."
             139. Vi nay and Pawan refused to participate in the TIP proceedings
      without giving any reason whatsoever. TIP of accused Mukesh was
 E    conducted on 20.12.2012 at Tihar Jail by PW-17, Sandeep Garg, in which
      PW-I, Awninder Pratap, identified accused Mukesh. In his testimony,
      the informant, PW-I, has identified his signature at point 'A' in TIP
      proceedings with respect to the accused Mukesh, Ex.PW-l/E. The
      High Court has pointed out that there was no serious challenge to the
      TIP proceedings of accused Mukesh in the cross-examination of the
 F    Metropolitan Magistrate, PW-17, or even the Investigating Officer, PW-
      80. TIP ofaccusedAkshaywas conducted on 26.12.2012 at Central Jail
      No.4, Tihar Jail, where the infonnant, PW-I, identified accusedAkshay.
      PW-I identified his signature at point 'A' in the TIP proceedings of
      accused Akshay marked as Ex.PW-1/F. The accused Mukesh and
G     Akshay were already identified in the TIP proceedings by the infonnant.
      Test Identification Proceedings corroborate and lend assurance to the
      dock identification of accused Mukesh and Akshay by the informant,
      PW-I.
             140. Criticizing the TIP, it is urged by the learned counsel for the
H     appellants and Mr. Hegde, learned amicus curiae, that refusal to participate
     MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                                 129
                   [DIPAK MISRA, J.)

may be considered as circumstance but it cannot by itself lead to an                A
inference of guilt. It is also argued that there is material on record to
show that the informant had the opportunity to see the accused persons
after they were arrested. It is necessary to state here that TIP does not
constitute substantive evidence. It has been held in Matru alias Girislt
Chandra v. State of Uttar Pradeslt' 2 that identification test is primarily
                                                                                    B
meant for the purpose of helping the investigating agency with an
assurance that their progress with the investigation of an offence is
proceeding on the right lines.
       141. In Santokh Singh v. Jzhar Hussain and another63 , it has
been observed that the identification can only be used as corroborative
of the statement in court.
                                                                                    c
        142. In Malkltaminglt v. State of M.P. 64 , it has been held thus:
        "7 .... The identification parades belong to the stage of
        investigation, and there is no provision in the Code of Criminal
        Procedure which obliges the investigating agency to hold, or D
        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 E
        for the courts of fact .... "
        Andagain:
         "I 6. It is well settled that the substantive evidence is the evidence
        of identification in court and the test identification parade provides
                                                                                    F
        corroboration to the identification of the witness in court, if required.
        However, what weight must be attached to the evidence of
        identification in court, which is not preceded by a test identification
        parade, is a matter for the courts of fact to examine .... "
       143. In this context, reference to a passage from Vis~·eswaran v.
                                                                                    G
State represented by S.D.M. 65 would be apt. It is as follows:
        "11 .... The identification of the accused either in test identification
"   (1971)2sec1s
"   ( 1973) 2 sec 406
"         s
    c2003) sec 746
"   c2003) 6 sec 73                                                                 H
130             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A           parade or in Court is not a sine qua non in every case if from the
            circumstances the guilt is otherwise established. Many a time,
            crimes are committed under the cover of darkness when none is
            able to identify the accused. The commission of a crime can be
            proved also by circumstantial evidence .... "
B            144. In Sidliartha Vashisht alias Manu Sharma v. State (NCT
      ofDellri) 66 , the Court, after referring to Munshi Singh Gautam v. State
      of M.P.67, Harbhajan Singh v. State of J & K68 and Malklramingh
      (supra), came to hold that the proposition oflaw is quite clear that even
      ifthere is no previous TIP, the court may appreciate the dock identification
      as being above board and more than conclusive.
c
              145. In the case at hand, the informant, apaii from identifying the
      accused who had made themselves available in the TIP, has also identified
      all of them in Court. On a careful scrutiny of the evidence on record,
      we are of the convinced opinion that it deserves acceptance. Therefore,
      we hold that TIP is not dented.
D
            Admissibility and acceptability of the dying declamtion of the
      prosecutrix:
            146. At this stage, it would be immensely seemly to appreciate
      the acceptability and reliability of the dying declaration made by the
 E    prosecutrix.
             147. The circumstances in this case, as is noticeable, makes the
      prosecution bring in three dying declarations. Mr. Sharma and Mr. Singh
      have been extremely critical about the manner in which they have been
      recorded and have highlighted the irreconcilable facets. In quintessence,
      their submission is that the three dying declarations have been contrived
 F
      and deserve to be kept out of consideration. Mr. Hegde, learned friend
      of the Court, contends that the dying declarations do not inspire
      confidence, for variations in them relate to the number of assailants, the
      description of the bus, the identity of the accused and the overt acts
      committed by them. It is contended that the three dying declarations
 G    made by the prosecutrix vary from each other and the said variations
      clearly reveal the inconsistencies and the improvements in the dying
      declarations mirror the improvements that are brought about in PW- I's

      " c2010) 6 sec 1
      " c2005) 9 sec 63 1
 H    " (1975) 4 sec 480
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            131
                  [DIPAK MISRA, J.]

statements and the progress of the investigation.                             A
        148. The sudden appearance of the name 'Vipin' in the third dying
declaration after the recording of Akshay's disclosure statement where
he mentions a person named Vipin is alleged to be indicative of the fact
that the dying declaration is, in fact, doubtful. It is contended that the
prosecution has failed to explain 'Vipin', his connection with the crime B
and.his elimination from the case. The vapourisation ofVipin has to be
considered against the backdrop of repeated assertions by the prosecution
that every word of the three dying declarations is correct, consciously
made and worthy of implicit belief. Learned senior counsel has also
submitted that apa11 from the inconsistencies, the numerous procedural
irregularities in the recording of the declarations make it suspicious. In c
this regard, lack of an .independent assessment of the mental fitness of
the prosecutrix, while recording the second dying declaration, has been
highlighted. The multiple choice questions ~n the third and final dying
declaration are being nomenclatured as leading questions and it is asserted
that they have not been satisfactorily explained by the prosecution. Further, D
the evidence by the doctors does not cure the impropriety of lack of an
independent assessment by the SDM while recording her second dying ·
declaration.
        149. It is submitted that if at all any dying declaration is to be
relied on, it should only be the first dying declaration made on 16.12.2012   E
and recorded byPW-49, Dr. Rashmi Ahuja, and the said dying declaration
only states that there were 4 to 5 persons on the bus. It is further stated
that the prosecutrix was raped by a minimum of2 men and that she does
not remember intercourse after that. It is, therefore, unsafe to proceed
on the assumption that all six persons on the bus committed rape upon
the prosecutrix within a span of2 I minutes.                                  F

       150. Keeping the aforesaid criticism in view, we proceed to analyse
the acceptability and reliability of the dying declarations. Firstly, when
the prosecutrix was brought to the Gynae Casualty about 11: 15 p.m.,
she gave a brief account of the incident to PW-49, Dr. Rashmi Ahuja, in
her MLC on 16.12.2012. PW-49, Dr. Rashmi Ahuja, has deposed that G
on the night of 16.12.2012 about 11: 15 p.m., the prosecutrix was brought
to the casualty by a PCR constable and that she gave a brief history of
the incident. PW-49, Dr. Rashmi Ahuja, recorded the same in her writing
in the Casualty/GRR paper, i.e., Ex. PW-49/ A.
                                                                              H
132             SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A            151. In the instant case, as per the history told by the prosecutrix
      to Dr. Rashmi Ahuja, it was a case of gang rape in a moving bus by 4-5
      persons when the prosecutrix was returning after watching a film with
      her friend. She was slapped on her face, kicked on her abdomen and
      bitten over lips, cheek, breast and vulva! region. She remembers
      intercourse two times and rectal penetration also. She was also forced
B
      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 friend. We
      have already stated about the injuries which were noted by Dr. Rashmi
      Ahuja in Ex.PW-49/A.
            152. The relevant statement of the prosecutrix in the Medico Legal
 c    Expert, Ex.PW49/A, reads as under:
             " ... she went to watch movie with her boyfriend, Awnidra: she
             left the movie at 8:45 PM and was waiting for bus at Munirka
             Bus stop where a bus going to Bahadurgarh, stopped and both
             climbed the bus at around 9 PM. At around 9:05-9: 10 PM, around
D            4-5 people in the bus started misbehaving with the girl, took her to
             the rear side of bus while her boyfriend was taken to the front of
             bus, where both were beaten up badly. Her clothes were torn
             over and she was beaten up, slapped repeatedly over her face,
             bitten over lips, cheeks, breast and Mons veneris. She was also
 E           kicked over her abdomen again and again. She was raped by at
             least minimum of two men, she does not remember intercourse
             after that. She had rectal penetration. They also forced their
             penis into her mouth and forced her to suck which she refused
             and was beaten up instead. This continued for half hour and she
             was then thrown away from the moving bus with her boyfriend.
 F           She was taken up by PCR Van and brought to GRR. She has
             history ofintercourse with her boyfriend about two months back.
             (willfully)"
             153. PW-49, Dr. Rashmi Ahuja, had noticed number of injuries on
      the person of the prosecutrix and the same were noted in Ex. PW- 49/B
 G    asunder:

               "Responding to verbal        bruise over Rt eye covering
               commands                     whole of the abrasion at Rt
                                            angle of eye
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                           133
                 [DIPAK MISRA, J.]

                                                                            A
        Hairs had grasses in her         bruise over 1eft nostril
        hairs                            involving upper lip
                                         Both lips edematous
        Her wrapping sheet soaked        bleeding from upper lip
        in blood                         present
                                         Bite mark over right chick         B
                                         & left chick present
        P-116/min radial feeble          Left angle of mouth injured
                                         (laceration)
        BP 100/60 mmhg, RR               Both ears unremarkable
        18/min                                                              c
        Both     upper limbs             Rt breast-bite mark below
        unremarkable                     areola present

        Left breast-bruise over Rt       A tag torn vagina hanging
        lower introits                   outside                            D
        Quadrant bite mark in            P/S bleeding P/V ++ P/V
        inferior                         posterior vagina wall

        Quadrant P/A Guarding            tear of about 7-8 ems.
        present UE cut mark                                                 E
        (sharp) over Rt labia

        LIE cut mark (sharp) over        P/R Rectal tear of about 4
        rt. Labia present rest labia     cm communicating with
        major aid uninora                Vagina"
                                                                            F
      154. PW-50, Dr. Raj Kumar Chejara, and the surgery team
operated the prosecutrix in the intervening night of 16/17.12.2012 and
the operative findings have also been earlier noted.
       155. PW-50, Dr. Raj Kumar Chejara, has proved the OT notes as
Ex.PW-50/A bearing the signature of Dr. Gaurav and his own note in          G
this regard is Ex.PW-50/B. As per his opinion, the condition of the small
and large bowels were extremely bad for any definitive repair. After
performing the operation, the patient was shifted to ICU. The first
surgery was damage control surgery and it was expected that unhealthy
bowel would be there.
                                                                            H
134            SUPREME COURT REPORTS                               [2017] 6 S.C.R.


A           156. The second surgery was performed on 19.12.2012 by him
      along with his operating team consisting of Prof. Sunii Kumar, Dr. Pinti.1
      and Dr. Siddharth. Fromthe gynaecological side, Dr. Anma Batra and
      Dr. Rekha Bharti were present along with anaesthetic team. The findings
      were as under:
B           "Abdominal findings:
             1. Rect1.1m was longtiti.1dinally torn on anterior aspect in continuation
                 with perinea! tear. This tear was continuing upward involving
                 sigmoid colon, descending colon which was splayed open. The
                 margin were edematous. There were multiple longiti.1dinal tear
c                in the mucosa of recto sigmoid area. Transverse colon was
                 also tom and gangrenous. Hepatic flextl.Jre, ascending colon
                 & caecum were gangrenous with multiple perforations at many
                 places. 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
D                non-existent with only patches of mucosa at places and borders
                 of the mesentry was conti.1sed. The conti.1sed mesentry borders
                 initially appeared (during l" surgery) as contused small bowel.
             2. Jejunostomy stoma was gangrenous for approximately 2cm.

 E           3. Stomach and duodenum was distended but healthy."
          157. Dying Declaration was recorded by SDM, Smt. Usha
   Chaturvedi, PW-27, on 21.12.2012. The medical record of the prosecutrix
   shows that the prosecutrix was not found fit for recording of her statement
   until 21" December, 2012 about 6:00 p.m. when the prosecutrix was
 F declared fit for recording statement by PW-52, Dr. P.K Verma. PW-52
   had examined the prosecutrix and found her to be fit, conscious, oriented
   and meaningfully communicative for making statement vide his
   endorsement at point 'A' on application, Ex.PW-27/DB. The second
   dying declaration, Ex.PW-27/ A, was recorded by PW-27, Smt. Usha
   Chatl.Irvedi, SDM. This dying declaration is an elaborate one where the
 G prosecutrix has described the incident in detail including the act of insertion
   of rod in her private parts. She also stated that the accused were
   addressing each other with names like, "Ram Singh, Thakur, Raju,
   Mukesh, Pawan and Vinay".
             158. The relevant portion of the dying declaration Ex. PW-27/A
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                          135
                 [DTPAK MISRA, J.]

recorded by PW-27, SDM, is extracted below:                                A
      "Q. l. What is your name, your father's name and your residential
      address?
      Ans. My name is prosecutrix and my father name is Sh .......... .
      and we reside at ................ .
                                                                           B
      Q.2 Do you study or work some where?
      Ans. I have completed my BPT (Bachelor of Physiotherapy).
      Q.3 On which date and place, the incident occurred?
      Ans. This happened on 16.12.12 in the midst of at about 9:00-9: 15
                                                                           c
      p.m.
      Q.4 Where had you gone on that day and how did you reach the
      place of occurrence?
      Ans. I had gone to watch the movie i.e. "Life of Pi" 6.40-8.30
      p.m. to Select City Mall, Saket on the day of incident along with    D
      my friend Sh. Awninder S/o. Sh. Bhanu Pratap, Rio House No.14,
      Bair Sarai, New Delhi-16. We took an Auto Rikshaw from there
      and reached Munirka.
      Q.5 How did you go further?
      Ans. After that, I saw white colored bus whose conductor had         E
      been calling the passengers of Pal am Mor and Dwarka. Thad to
      go to Dwarka, Sec- I. That is why both of us, I and my friend
      boarded the bus and gave twenty rupees (Rs. 20/-) at the fare of
      Rs. I 0/- per passenger.
      Q.6. Were there passengers ·inside the bus?                          F

      Ans. When I entered the bus there were 6-7 passengers.
      Assuming them to be passenger, we sat outside the cabin of the
      bus.
      Q.7 Provide the detailed information about the bus?
                                                                           G
      Ans. The bus was of the white colour and the seats were of the
      red colour. Yellow coloured curtains were fixed. The glasses of
      the bus were black and were closed. T could see outside from
      inside but nothing could be seen inside from outside. Tn one row
      of the bus there were two seats and in the other row, there were
                                                                           H
136            SUPREME COURT REPORTS                          [2017) 6 S.C.R.



A           three seats.
            Q,8 After entering the bus, did you suspect anything seeing the
            people occupying the seats there?
            Ans. I had suspected (something amiss) but the conductor had
            already taken the (fare) money and the bus had started. So, I kept
B           sitting there.
            Q.9 What did happen afterwards? Please inform in detail.
            Ans. After five minutes when the bus climbed the bridge ofMalai
            Mandir, the Conductor closed the door of the bus and switched
c           off the light inside the bus. And they came to my friend and
            started hitting and beating him. Three four (3-4) people caught
            hold of him and the remaining people dragged me to the rear
            portion of the bus and tore off my clothes and took turns to rape
            me. They hit me on my stomach with an iron rod and bit me on
            my whole body. Prior to that, they snatched from me and my
D           friend all our articles i.e. mobile phone, purse, credit card, debit
            card, watches, etc. All six of the persons committed oral, vaginal,
            anal rape on me. These people inserted the iron rod into my body
            through my vagina and rectum and also pulled it out. They
            extracted the internal private part of my body through inserting
 E          hand and iron rod into my private parts and caused hurt to me. Six
            persons kept committing rape on me for approximately one hour
            by turns. The drivers kept changing in the moving bus so that they
            can rape me.


 F          PW-27 Usha Chaturvedi, SDM, when examined and recorded
            the dying declaration of prosecutrix come off in her dying
            declaration she state as under:"
             159. The clinical notes, Ex.PW-50/C, and notes prepared by the
      gynaecology team were proved as Ex.PW-50/D. The gynaecological
 G    notes were prepared on actual examination of the patient on the operation
      table during the· surgery. PW-50 further operated the prosecutrix on
      23.12.2012 for peritoneal lavage and placement of drain under general
      anaesthesia and his notes are Ex.PW-50/E.
             160. Statement of the prosecutrix was recorded by PW-30, Pawan
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                          137
                  [DIPAK MISRA, J.]

Kumar, Metropolitan Magistrate, vide Ex.PW-30/D. On 24.12.2012, an          A
application for recording the statement of the prosecutrix under Section
164 CrPC was moved by the Investigating Officer, which is exhibited as
Ex.PW-30/Aand, thereafter, the learned Metropolitan Magistrate fixed
the date for recording of the statement as 25.12.2012 at 9:00 a.m. at
Safdarjung Hospital vide his endorsement at Point "P" to "P-1" on Ex.       B
PW-30/A. On 25.12.2012, PW-28, Dr. Rajesh Rastogi, at 12:40 p.m.,
declared the prosecutrix fit for recording statement through gestures.
She was found conscious, oriented, co-operative, comfortable and
meaningfully communicative to make a statement through non-verbal
gestures.
       161. On 25.12.2012, the prosecutrix's statement, Ex.PW-30/D,         c
under Section 164 CrPC was recorded by PW-30, Pawan Kumar,
Metropolitan Magistrate, in the form of questions by putting her multiple
choice questions. This statement was made through gestures and
writings. The statement recorded by PW-30 which ultimately became
another dying declaration reads as under:                                   D
      "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       E
      enable to narrate the incident by way of gesture or writing.
      Ques. : When and at what time the incident happened?
      1. 20/12/2012 2. 13/12/2012 3. 16/12/2012
      Ans : 16/12/12 (by writing after taking time)                         F
      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?                       G
      1. Yes 2. No
      Ans.: 1
      Ques.: By which article they have given beatings? (answer by
      writing)
                                                                            H
138             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A           Ans.: By iron rod which was long.
            Ques.: What happened of your belongings means mobile etc.?
             1. Fell down 2. Snatched by them 3. Don't know
             Ans.: 2
B            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?
c            (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
D            other bus stop.
             Ans: 2"
             As per Ex. PW-30/D, this answer was written by the prosecutrix
             in her own hand.
E            162. On26.12.2012, the condition of the prosecutrix was examined
      and it was decided to shift her abroad for further treatment. Notes in
      this regard are Ex.PW-50/F bearing the signatures of Dr. Raj Kumar,
      Dr. Sunil Kumar, Dr. Anma Batra and Dr. P.K. Verma.
             163. The prosecutrix died at Mount Elizabeth Hospital, Singapore
 F    on 29.12.2012 at 4:45 a.m. The cause of death is stated as sepsis with
      multi organ failure following multiple injuries, as is evincible from Ex.PW-
      34/A.
             164. Learned counsel for the appellants have objected to the
      admissibility of the dying declarations available on record mainly on the
G     ground that they are not voluntary but tutored. It is argued that the second
      and third dying declarations are nothing but a product of tutoring and are
      non-voluntary and the only statement recorded is the MLC, Ex.PW49/A
      and Ex. PW49/B, prepared immediately after the incident, wherein the
      prosecutrix has neither named any of the accused nor mentioned the
      factum of iron rod being used by the accused persons and the act of the
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             139
                  [DIPAK MISRA, J.]

accused in committing unnatural offence. It is further alleged that the        A
prosecutrix could not have given such a lengthy dying declaration running
upto four pages on 21.12.2012 as she was on oxygen support. PW-27
has deposed that the prosecutrix was on oxygen support at the time of
recording the second dying declaration. It is further contended that it
must be taken into account that ever since the prosecutrix was admitted
                                                                               B
to the hospital, she was continuously on morphine and, thus, she could
not have gained consciousness. The second dying declaration has been
further assailed on the ground of being recorded at the behest ofSDM,
PW-27, instead ofa Magistrate and that too after a delay of nearly four
days. The third dying declaration, Ex.PW-30/D, recorded by the
Metropolitan Magistrate, PW-30, on 25.12.2012 through gestures and             c
writings is controverted by putting forth the allegations of false medical
fitness certificate and absence ofvideography.
        165. Another argument advanced by the lemed counsel raising
suspicion on the genuineness of the second and third dying declarations
is that the dates on which the dying declarations were recorded have           D
been manipulated. The counsel asseverated that the second dying
declaration, i.e., Ex.PW-27 I A, purported to have been recorded by PW-
27 on 21.12.2012 was, in fact, recorded on the previous day as evidenced
from the overwriting of the date in Ex. PW-27/B. The counsel also pointed
to the overwriting of the date in the third dying declaration, i.e., Ex. PW-
30/C, recorded by PW-30. It is propounded by them that the date was            E
modified thrice in order to fit in the fake chain of circumstances contrived
by the prosecution.
       166. Resisting the said submissions, Mr. Luthra, learned senior
counsel for the State, astutely contended that all the three dying
declarations recorded at the instance of the prosecutrix are consistent        F
and well corroborated by medical evidence as well as by PW-1 's
testimony, and other scientific evidence. The prosecutrix's first statement,
Ex. PW-49/ A, given to PW-49 was only a brief account of the heinous
act committed on her and in that state of shock, nothing more could be
legitimately expected of her. Only after receiving medical attention, she      G
was declared fit to record statement and on 2l.l2.2012, PW-52 had
examined the prosecutrix and found her to be fit, conscious, oriented
and meaningfully communicative for making statement vide his
endorsement at point 'A' on application Ex.PW-27/DB. PW-27, Smt.
Usha Chaturvedi, SDM, recorded her statement in which the prosecutrix
                                                                               H
140            SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A     described the incident in detail and also named the accused persons. In
      fact, PW-27 has also deposed before the court that the prosecutrix was
      in a fit mental condition to give the statement on 21.12.2012. Moreover,
      the prosecutrix's third statement, Ex.PW-30/D, which was recorded in
      questien-answer form through gestures and writings by PW-30, Pawan
      Kumar, Metropolitan Magistrate, is consistent with the earlier two dying
B
      declarations and that adds to the credibility and conclusively establishes
      reliability.
             167. In the first dying declaration made to PW-49, Dr. Rashmi
      Ahuja, recorded in Ex.PW-49/A and in MLC, Ex.PW-49/B, due to her
      medical condition, though the prosecutrix broadly described the incident
c     of gang rape committed on her and injuries caused to her and PW- I, yet
      she failed to vividly describe the incident of inserting iron rod, etc. As
      soon as the prosecutrix was brought to the hospital, she gave a brief
      description of the incident to PW-49, Dr. Rashmi Ahuja. As it appears
      from the record, the prosecutrix had lost sufficient quantity of blood due
D     to which she was drowsy and could only give a brief account of the
      incident and injuries caused to her and the informant. Even though the
      prosecutrix has given only a brief account of the occurrence, yet she
      was responding to verbal command and hence, the same is natural and
      trnstworthy and furthermore, Ex. PW-49/A is also consistent with the
      other dying declarations.
 E
             168. By virtue of the second dying declaration recorded as Ex.PW-
      27/A on 2l.l2.2012 about 9: I 0 p.m. by the SDM, Smt. Usha Chaturvedi,
      the exact details of the incident and the injuries caused to the prosecutrix
      have come on record. The learned SDM has satisfied herself that the
      prosecutrix was fit to make the statement. While recording the dying
 F    declaration of the prosecutrix, Ex.PW-27/ A, Dr. P.K Verma, PW-52,
      had found her conscious, oriented and meaningfolly communicative vi de
      his endorsement at point 'A' on the application, Ex.PW-27/DB. It was
      only thereafter that PW-27, Smt. Usha Chaturvedi, SDM, recorded the
      statement, Ex.PW-27/A, of the prosecutrix. The prosecutrix not only
 G    signed it but even wrote the date and time in this statement. She narrated
      the entire incident specifying the role of each accused; gang rape/
      unnatural sex committed upon her; the injuries caused in her vagina and
      rectum by use of iron rod and by inserting of hands by the accused;
      description of the bus, robbery and lastly throwing of both the victims
      out of the moving bus, Ex.P 1, in naked condition at the footfall of
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              141
                  [DIPAK MISRA, J.]

Mahipalpur flyover.                                                             A
        169. As it appears from the record, PW-27, after recording the
statement of the prosecutrix, as contained in Ex.PW-27/A, forwarded
the statement alongwith the forwarding letter, Ex. PW-27 /B, to the ACP,
Vasant Vihar undersigned by herself. Ex. PW-27/ A, which contains the
statement of the prosecutrix, is duly signed by the prosecutrix on all the B
pages and also signed by PW-27, SDM. PW-27 has certified in Ex.PW-
27I A that the signature of the prosecutrix was obtained in her presence
at 9:00 p.m. on 21.12.2012 after which she has signed the same. No
overwriting of date is evidenced in Ex.PW-27/ A. However, so far as the
forwarding letter, i.e., Ex.PW-27/B, is concerned, the date mentioned by
PW-27 after putting her signature is overwritten as 21.12.2012. When C
cross-examined on this aspect, PW-27 has stated that she had herself
overwritten the date and, thus, overruled the possibility ofany falsification
of the document at the behest of the investigating team. PW-27 explained
the overwriting of date as a 'human error' and the same has been rightly
constrned by the trial court and accepted by the High Court as a complete D
explanation. The relevant statement of PW-27 is as under:
       "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 be21-12-2012."                                                 E
       170. Agian on 25.12.2012 on an application, Ex.PW-28/A, though
Dr. P.K Verma, PW-52, opined that the prosecutrix was unable to speak
as she was having endotracheal tube, i.e, in larynx and trachea and was
on ventilator, yet PW-28, Dr. Rajesh Rastogi, declared her to be
conscious, oriented and meaningfully communicative through non-verbal           F
gestures and fit to give statement. PW-30, Pawan Kumar, Metropolitan
Magistrate, also satisfied himself qua fitness and ability of the prosecutrix
to give rational answers by gestures to his multiple choice questions.
The opinion of the doctors obtained prior to recording of the statements,
Ex.PW-27/ A and Ex.PW-30/D-l, as also the observations made by the
SDM and Metropolitan Magistrate qua her fitness cannot be disregarded           G
completely on the basis of surmises of the learned counsel for the
appellants.
       171. Adverting to the third dying declaration, Ex.PW-30/C, we
are able to appreciate that PW-30, after recording the statement of the
                                                                                H
142             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A     prosecutrix, has signed the document. The date mentioned therein is
      overwritten as 25.12.2012. However, in the forwarding note to the
      investigating officer which is contained in continuation of the prosecutrix's
      statement annexed as Ex. PW-30/C, the signature and date mentioned
      by PW-30 is very clear and no overwriting is visible. Be it noted, PW-30
      was never cross-examined on the aspect of overwriting of the date in
B
      Ex.PW-30/C. The learned counsel has, for the first time, raised this
      issue before us merely to substantiate his suspicion of manipulation on
      the part of the prosecution. We hold that pointing at insignificant errors
      is inconsequential so far as cogent evidence produced by the prosecution
      stand on a te1rn finna. Tt is beyond human prudence to discard the detailed
 c    and well signed statements of the prosecutrix, in spite of clear date put
      by herself, merely because PW-30 erred at one point of time in correctly
      recording the date. Moreover, the testimony of PW-52, Dr. P.K. Verma,
      who was incharge of the ICU and in whose supervision the entire
      treatment and recording of statements by the prosecutrix was done,
      cannot be discarded on account of meagre technical errors.
D
              172. Another line of argument developed by the learned counsel
      is that there has been failure on the part of the prosecutrix 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 so, her dying declarations,
      Ex.PW-27/Aand Ex.PW-30/D-l, where she had given the names of the
 E    accused persons, are tutored versions and cannot form the basis of
      conviction. This argument, however, is completely unjustified in the light
      of the medical condition of the prosecutrix when she was brought to the
      hospital. As per the records, the prosecutrix was brought to the hospital
      in a state of sub-consciousness and sheer trauma. In her MLC, Ex.PW-
 F    49/B, her condition is described as drowsy responding only to verbal
      commands and hence, not completely alert due to the shock and excessive
      loss of blood. The prosecutrix was declared fit to make statements,
      Ex.PW-27/A and Ex.PW-30/D-l, only when she was operated thrice.
      Her dying declarations, Ex.PW-27/A and Ex.PW-30/D-l, also stand
      corroborated by the medical evidence as well as the testimony of PW- I.
 G
             173. A dying declaration is an important piece of evidence which,
      if found veracious and voluntary by the court, could be the sole basis for
      conviction. If a dying declaration is found to be voluntary and made in fit
      mental condition, it can be relied upon even without any corroboration.
      However, the court, while admitting a dying declaration, must be vigilant
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            143
                  [DIPAK MISRA, J.]

towards the need for 'Compos Mentis Certificate' from a doctor as A
well as the absence of any kind of tutoring. In Laxman v. State of
Maharashtra 69 , the law relating to dying declaration was succinctly put
in the following words:
      "3 .... A dying declaration can be oral or in writing and any
      adequate method of communication whether by words or by signs B
      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 c
      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 D
      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 E
      examination by the doctor the declaration can be acted upon
      provided the court ultimately holds the same to be volunta1y 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."                                           F
        174. The legal position regarding the admissibility of a dying
declaration is settled by this Court in several judgments. This Court, in
Atbir v. Government of NCT of Delhi7°, taking into consideration the
earlier judgment of this Court in Paniben v. State of G11jarat71 and
another judgment of this Court in Panneerselvam v. State of Tamil             G
Nad11 71 , has exhaustively laid down the following guidelines with respect
to the admissibility of dying declaration:
" (2002) 6 sec 11 o
10
   (2010) 9 sec 1
71
   (1992)2 SCC474
" (2oos) 11 sec 190                                                           H
144            SUPREME COURT REPORTS                             [2017] 6 S.C.R.


A           "22. (i) Dying declaration can be the sole basis of conviction if it
            inspires the full confidence of the court.
            (ii) The court should be satisfied that the deceased was in a fit
            state of mind at the time of making the statement and that it was
            not the result of tutoring, prompting or imagination.
·B          (iii) Where the court is satisfied that the declaration is tme and
            voluntary, it can base its conviction without any further
            corroboration.
            (iv) It cannot be laid down as an absolute rule of law that the
            dying declaration cannot form the sole basis of conviction unless
 c          it is corroborated. The rule requiring corroboration is merely a
            rule of prudence.
            (v) Where the dying declaration is suspicious, it should not be
            acted upon without corroborative evidence.
            (vi) A dying declaration which suffers from infirmity such as the
D
            deceased was unconscious and could never make any statement
            cannot fo1m the basis of conviction.
            (vii) Merely because a dying declaration does not contain all the
            details as to the occurrence, it is not to be rejected.
·E          (viii) Even ifit is a brief statement, it is not to be discarded.·
            (ix) When the eyewitness affirms that the deceased was not in a
            fit and conscious state to make the dying declaration, medical
            opinion cannot prevail.
            (x) If after careful scrutiny, the court is satisfied that it is true and
 F          free from any effort to induce the deceased to make a false
            statement and if it is coherent and consistent, there shall be no
            legal impediment to make it the basis of conviction, even ifthere
            is no corroboration."
              175. It is well settled that dying declaration can form the sole
 G    basis of conviction provided that it is free from infirmities and satisfies
      various other tests. In a case where there are more than one dying
      declaration, if some inconsistencies are noticed between one and the
      other, the court has to examine the nature of inconsistencies as to whether
      they are material or not. The court has to examine the contents of the
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            145
                  [DIPAK MISRA, J.]

dying declarations in the light of the various surrounding facts and          A
circumstances. In Slmdlrakar v. State ofMadhya Pradeslr 73 , this Court,
after referring to the landmark decisions in Laxman (supra) and Chirra
Shivraj v. State ofAndhra Pradesh 74 , has dealt with the issues arising
out of multiple dying declarations and has gone to the extent of declining
the first dying declaration and accepting the subsequent dying                B
declarations. The Court found that the first dying declaration was not
voluntary and not made by free will of the deceased; and the second and
third dying declarations were voluntary and duly corroborated by other
prosecution witnesses and medical evidence. In the said case, the accused
was married to the deceased whom he set ablaze by pouring kerosene
in the matrimonial house itself. The smoke arising from the house             c
attracted the neighbours who rushed the victim to the hospital where
she recorded three statements before dying. In her first statement given
to the Naib Tehsildar, she did not implicate her husband, but in the second
and third statements, which were also recorded on the same day, she
clearly stated that the accused poured kerosene on her and set her on
                                                                              D
fire. The accused was convicted under Section 302 IPC. In this regard,
the Court made the following observations:
      "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 E
      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 examirie
      which of the dying declarations is corroborated by other prosecution F
      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 ofjudicial discretion by the court G
      in such matters."
      176. Recently, a two-Judge Bench of this Court in Sandeep and
" (2012) 1 sec 569
" (2010) 14 sec 444
                                                                              H
146            SUPREME COURT REPORTS                          [2017] 6 S.C.R.


A     another v. State ofHaryana 75 was faced with a similar situation where
      the first dying declaration given to a police officer was more elaborate
      and the subsequent dying declaration recorded by the Judicial Magistrate
      lacked certain information given earlier. After referring to the two dying
      declarations, this Court examined whether there was any inconsistency
      between the two dying de~larations. After examining the contents of the
B
      two dying declarations, this Court held that there was no inconsistency
      between the two dying declarations and non-mention of certain features
      in the dying declaration recorded by the Judicial Magistrate does not
      make both the dying declarations incompatible.
            177. In this regard, it will be useful to reproduce a passage from
c     Babula/ and others v. State of M.P. 76 wherein the value of dying
      declaration in evidence has been stated:
            "7 .... A person who is facing imminent death, with even a shadow
            of continuing in this world practically non-existent, every motive
            of falsehood is obliterated. The mind gets altered by most powe1ful
D           ethical reasons to speak only the truth. Great solemnity and sanctity
            is attached to the words of a dying person because a person on
            the verge of death is not likely to tell lies or to concoct a case so
            as to implicate an innocent person. The maxim is "a man will not
            meet his Maker with a lie in his mouth" (nemo moriturus
 E          praesumitur mentire). Mathew Arnold said, "trnth sits on the lips
            of a dying man". The general principle on which the species of
            evidence is admitted is that they are declarations 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
            mind induced by the most powerful consideration to speak the
 F          trnth; situation so solemn that law considers the same as creating
            an obligation equal to that which is imposed by a positive oath
            administered in a court of justice .... "
           178. Dealing with oral dying declaration, a two-Judge Bench in
      Prakash and anoth.er v. State of Madhya Pradesh 77 has mled thus:
 G
             "11 .... In the ordinary course, the members of the family including
             the father were expected to ask the victim the names of the
      "(2015) 11sec154: (2015) 2 SCR 1999 SC
      1
       • (2003) 12 sec 490
      11
         <1992) 4 sec 225
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              147
                  [DIPAK MISRA, J.]

       assailants at the first opportunity and ifthe victim was in a position   A
       to communicate, it is reasonably expected that he would give the
       names of the assailants ifhe had recognised the assailants. In the
       instant case there is no occasion to hold that the deceased was
       not in a position to identify the assailants because it is nobody's
       case that the deceased did not know the accused persons. It is
                                                                                B
       therefore quite likely that on being asked the deceased would
       name the assailants. In the facts and circumstances of the case
       the High Court has accepted the dying declaration and we do not
       think that such a finding is perverse and requires to be interfered
       with .... "
       179. In Vijay Pal v. State (Government of NCT of Delhi)78 ,
                                                                                c
after referring to the Constitution Bench decision in Laxman (supra)
and the two-Judge Bench decisions in Babula/ (supra) and Prakash
(supra), the Court held:
       "22. Thus, the law is quite clear that if the dying declaration is
       absolutely credible and nothing is brought on record that the            D
       deceased was in such a condition, he or she could not have made
       a dying declaration to a witness, there is no justification to discard
       the same. In the instant case, PW 1 had immediately rushed to
       the house of the deceased and she had told him that her husband
       had poured kerosene on her. The plea taken by the appellant that         E
       he has been falsely implicated because his money was deposited
       with the in-laws and they were not inclined to return, does not
       also really breathe the truth, for there is even no suggestion to
       that effect.
      23. It is contended by the learned counsel for the appellant that         F
      when the deceased sustained 100% burn injuries, she could not
      have made any statement to her brother. In this regard, we may
      profitably refer to the decision in Mafabhai Nagarbhai Raval v.
      State ofGujarat 79 wherein it has been held that a person suffering
      99% bum injuries could be deemed capable enough for the purpose
      of making a dying declaration. The Court in the said case opined          G
      that ~mless there existed some inherent and apparent defect, the
      trial court should not have substituted its opinion for that of the
      doctor. In the light of the facts of the case, the dying declaration
" (201 s) 4 sec 749
" (1992) 4 sec 69
                                                                                H
148            SUPREME COURT REPORTS                         [2017] 6 S.C.R.


A           was found to be worthy of reliance.
            24. In State of MP. v. Dal Singhs 0 , a two-Judge Bench placed
            reliance on the dying declaration of the deceased who had suffered
            I 00% burn injuries on the ground that the dying declaration was
            found to be credible."
B        180. In the case at hand, the first statement of the prosecutrix
  was recorded by PW-49, Dr. Rashmi Ahuja, on the night of 16.12.2012
  and the second statement was recorded by the SDM on 21.12.2012
  after a delay of five days. In the present facts and circumstances of the
  case, we do not find that there is any inconsistency in the dying
c declarations  to raise suspicion as to the genuinity and voluntariness of
  the subsequent dying declarations. The prosecutrix had been under
  constant medical attention and was reported to be fit for giving a statement
  on 21.12.2012 only. On the night of the incident itself, she underwent
  first surgery conducted by PW-50, Dr. Raj Kumar Chejara, Surgical
  Specialist, Department of Surgery, Safdarjung Hospital, New Delhi and
D his surgery team comprising of himself, Dr. Gaurav and Dr. Piyush, and
  the prosecutrix was shifted to ICU. The second surgery was performed
  on her on 19.12.2012. Ex.PW-50/C, OT notes dated 19.12.2012 show
  that the prosecutrix was put on ventilation after the surgery. Considering
  the facts and circumstances and the law laid down above, a mere omission
E on  the part of the prosecutrix to state the entire factual details of the
  incident in her very first statement does not make her subsequent
  statements unworthy, especially when her statements are duly
  corroborated by other prosecution witnesses including the medical
  evidence.
 F           181. The contention that no dying declaration could have been
      recorded on 21.12.2012 as the prosecutrix was administered morphine
      does not hold good as PW-52, Dr. P.K. Verma, has deposed that morphine
      was injected at 6:00 p.m. on 20.12.2012 and its effect would have lasted
      for only 3-4 hours. PW-52 has denied that the prosecutrix was
      unconscious and had difficulty in breathing at the time when she made
 G    the statement to PW-27, SDM, on 21.12.2012.
            182. Yet another objection raised by the the learned counsel for
      the appellants concerning the medical fitness of the prosecutrix, while
      recording the third dying declaration is that when PW-30, Metropolitan
      so (2013) 14   sec 159
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             149
                  [DWAK MISRA, J.]

Magistrate, Pawan Kumar, recorded the dying declaration of the                 A
prosecutrix, she was not in a position to speak as per the endorsement
made by PW-52, Dr. P.K. Verma, and, therefore, no weight could be
attached to the dying declaration recorded by PW-30. In this regard,
reliance is placed upon Ex.PW-30/B l. This contention was raised before
the High Court as well as the trial court and while considering the
                                                                               B
contention, we find that:
      "On 25.12.2012, application [Ex.PW-30/B] moved by P.W.-80 S.l.
      Pratibha Sharma between 9:30 a.m. to 10:00 a.m. seeking opinion
      regarding fitness of prosecutrix to get statement recorded. Pw-
      52 Dr. P.K. Verma examined the prosecutrix and opined at 12:35
      p.m. that "patient has endotracheal tube in place (i.e. in her larynx
                                                                               c
      and trachea) and was on ventilator and hence she could not speak".
         183. PW-28, Dr. Rajesh Rastogi, opined vide Ex.PW-28/A at 12:40
p.m. on 25.12.2012 that the prosecutrix was conscious, cooperative,
meaningfully communicative through non-verbal gestures, oriented and
fit to give statement. PW-28, Dr. Rajesh Rastogi, examined the prosecutrix     D
around 12 noon and finished it by 12:00-12:30 p.m. On 25.12.2012 at
12:35 p.m., Dr. P.K. Verma had endorsed on the document Exhibit PW-
30/B that the victim could not speak as she had endotracheal tube in
place (that is, in larynx and trachea) and was on ventilator. However,
subsequently, at 12:40 p.m. on the same day, PW-28, Dr. Rajesh Rastogi,        E
had endorsed on the said document, Ex.PW-30/B, to the effect that the
victim was conscious, cooperative, meaningfully communicative, oriented,
responding through non-verbal gestures and fit to give statement. Tlie
learned counsel contended that it is inconceivable that the prosecutrix
who was on life support system at 12:35 p.m. could be opined to be
conscious, cooperative and fit to give statement within five minutes, i.e.,    F
at 12:40 p.m.
       184. The said contention, as we find, has been appropriately dealt
with by both courts below by adverting to the depositions of PW-52, Dr.
P.K. Verma, and PW-28, Dr. Rajesh Rastogi. Regarding the fit mental
condition of the prosecutrix and as to the different endorsements made         G
by PW-52, Dr. P.K. Verma, and PW-28, Rajesh Rastogi, PW-52 was
questioned suggesting that the prosecutrix was not in a fit mental condition
to give the dying declaration. PW-52 has clearly deposed in his cross-
examination that he had never endorsed that the victim was unfit to give
statement at 12:35 p.m., rather he had said that she was on ventilator         H
150            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A     and hence, could not speak. The aforesaid explanation of PW-52, Dr.
      P.K. Verma, who was incharge of the ICU in Safdarjung Hospital at the
      relevant time makes it limpid that even though the prosecutrix was not
      able to speak, yet she was conscious and oriented and was in a position
      to make the statement by gestures.
B            185. The contention that the third dying declaration made through
      gestures lacks credibility and that the same ought to have been
      videographed, in our view, is totally sans substance. The dying declaration
      recorded on the basis of nods and gestures is not only admissible but
      also possesses evidentiary value, the extent of which shall depend upon
      who recorded the statement. In the instant case, the dying declaration
c     was recorded by PW-30, Mr. Pawan Kumar, Metropolitan Magistrate.
      A pernsal of the questions and the simple answers by way of multiple
      choice put to the prosecutrix is manifest of the fact that those questions
      and answers were absolutely simple, effective and indispensable. The
      dying declaration recorded by PW-30, Ex.PW-30/D, though by nods and
D     gestures and writings, inspires confidence and has been rightly relied
      upon by the trial Court as well as the High Court. Videography of the
      dying declaration is only a measure of caution and in case it is not taken
      care of, the effect of it would not be fatal for the case and does not, in
      any circumstance, compel the court to completely discard that particular
      dying declaration.
 E
            186. In Meesa/a Ramakrisltan v. State of A.P. 81 , this Court,
      while admitting the dying declaration made through gestures, made the
      following observations:
              "20 .... that dying declaration recorded on the basis of nods and
 F           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."
 G
             187. In B. Sltashikala v. State of A.P. 82 , it was observed that:
             "13. The evidence of PW 8 is absolutely clear and unambiguous
             as regards the manner in which he recorded the statement of the
      " (1994) 4 sec 1s2
      " (2004) 13 sec 249
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              151
                 [DIPAK MISRA, J.]

      deceased with the help of PW 4. It is also evident that he also has      A
      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
                                                                               B
      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."
       188. Appreciating the third dying declaration recorded on the basis
of gestures, nods and writings on the base of aforesaid pronouncements,
we have no hesitation in holding that the dying declaration made through       c
signs, gestures or by nods are admissible as evidence, if proper care
was taken at the time of recording the statement. The only caution the
court ought to take is that the person recording the dying declaration is
able to notice correctly as to what the declarant means by answering by
gestures or nods. In the present case, this caution was aptly taken, as        D
the person who recorded the prosecutrix's dying declaration was the
Metropolitan Magistrate and he was satisfied himself as regards the
mental alertness and fitness of the prosecutrix, and recorded the dying
declaration of the prosecutrix by noticing her gestures and by her own
writings.
                                                                               E
       189. Considering the facts and circumstances of the present case
and upon appreciation of the evidence and the material on record, in our
view, all the three dying declarations are consistent with each other and
well corroborated with other evidence and the trial court as well as the
High Court has correctly placed reliance upon the dying declarations of
the prosecutrix to record the conviction.                                      F
       Insertion of the iron rod:
       190. Presently, we shall advert to the contentions raised as regards
the use of iron rod for causing recto-vaginal injury. The case of the
prosecution is that the accused, in most inhumane and unfeeling manner,        G
inserted iron rod in the rectum and vagina of the prosecutrix and took
out the internal organs of the prosecutrix from the vaginal and anal opening
while pulling out the said iron rod. They also took out the internal organs
of the prosecutrix by inserting iron rod in the vagina of the prosecutrix
thereby causing dangerous injuries. Two iron rods, Ex.P-49/1 and
                                                                               H
152             SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A     Ex.P-49/2, were recovered vide seizure memo Ex.PW-74/G by the
      Investigating Officer, PW-80, at the instance of accused Ram Singh
      (since deceased). As per Ex.PW-49/A, the internal injuries sustained
      by the victim were like vaginal tear, profused bleeding from vagina, rectal
      tear communicating with vaginal tear and other injuries.
B           191. PW-50, Dr. Raj Kumar Chejara, and the surgery team
      operated the prosecutrix in the intervening night of 16/ 17.12.2012 and
      the operative findings are as under:
            a. collection of around 500ml of blood in peritoneal cavity
             b. stomach pale,
c
            c. duodenum contused
            d. jejunum contused & bruised at whole of the length and lacerated
                 & transected at many places. First transaction was 5cm away
                 from DJ junction. Second one was 2 feet from the DJ, after
                 that there was transaction and laceration at many places.
D
                 Jejuna! loop was of doubtful viability. Lieum - whole lieum
                ·was totally contused and it was of doubtful viability. Distant
                 lieum 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.
E
                 Descending colon was lacerated vertically downward in such
                 a manner that it was completely opened.
             f. Sigmoid colon & rectum was lacerated at many places.
                Linearlyu, mucosa was detached completely at places, a portion
                of it around I Ocm was prolapsing through perinea! wound.
F
             g. Liver and spleen was normal.
             h. Both sides retro peritoneal (posterior wall of the abdomen)
                haematoma present.
             i. Mesentry and omentum was totally contused and bmised.
G
            j. Vaginal tear present, recto vaginal septum was completely torn.
             192. PW-80, SI Pratibha Sharma, the Investigating Officer, deposed
      before the trial court that accused Ram Singh had led her inside the bus,
      Ex.Pl and had taken out two iron rods from the shelf of the driver's
      cabin. One of the rods, 59 cm in length, was primarily used for changing
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              153
                          [DTPAK MISRA, J.]

punctured tyres; it was hooked from one end and chiseled from the              A
other. It also had multiple serrations on both the ends. The other rod
was of silver colour, hollow and 70 cm long. This rod formed part of a
hydraulic jack and was used as its lever, Ex.PW49/G. The rods were
blood stained and the recovered rods were sealed with the seal of PS
and were deposited in the Malkhana. On 24.12.2012, the said iron rods
                                                                               B
along with the sample seal were sent to CFSL, CBI for examination
through SI Subhash, PW-74, vide RC No. 178/21/12, proved as Ex.PW-
77/R. The DNA report prepared by Dr. B.K. Mohapatra, PW-45,
suggests that the DNA profile developed from the bloodstains from both
the iron rods is consistent with the DNA profile of the prosecutrix.
       193. Mr. Sharma, learned counsel for the appellants, has countered
                                                                               c
the prosecution case on the use of iron rods. He has drawn support from
the medical records and the testimony of the witnesses as also the
prosecutrix to assert the aforesaid submission. He submits that the
prosecution has fabricated the story as regards the use of iron rods only
to falsely implicate all the accused in the death of the prosecutrix. The      D
defence has refuted the use of iron rods by the accused on the ground
that the informant as well as the prosecutrix did not mention about the
use of iron rods in their first statements. The main contention of the
accused is that the prosecutrix herself, in her first statement given to Dr.
Rashmi Ahuja, PW-49, Ex. PW-49/A, failed to disclose the use of iron
rods. He relies on the absence of the words 'iron rods' in Ex.PW-49/A          E
to fortify this submission. He contends that as recorded by PW-49, the
prosecutrix was in a fit state of mind for she even gave her residential
address after undergoing the traumatic experience, but she failed to
mention that the accused persons also used the iron rods on her, a fact
that would have had a bearing on her treatment.                                F
       194. The aforesaid proponement is not sustainable as MLC,
Ex.PW49/A, of the prosecutrix suggests that she was brought to the
hospital in a traumatized state with grievous injuries and she was cold
and clammy, i.e., whitish (due to vasoconstriction) and had lost a lot of
blood. As per Ex.PW-49/A, the prosecutrix was sure of intercourse to           G
have been committed twice along with rectal penetration whereafter
she did not remember intercourse. It is worthy to note that she was
oscillating between consciousness and unconsciousness at the time of
the incident and there was loss oflot of blood by the time she had reached
the hospital which is evident from Ex. PW49/B-MLC. A victim who has
                                                                               H
154             SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A     just suffered a ghastly and extremely frightening incident cannot be
      expected to immediately come out of the state of shock and state the
      finest details of the incident. The subsequent dying declarations of the
      prosecutrix corroborated by the medical evidence cannot be disregarded
      merely on the ground that the use of iron rods is not substantiated by the
      prosecutrix 's first statement.
B
             195. The gravity and hideousness of the injuries caused to the
      prosecutrix, as has already been discussed above, clearly shows the use
      of iron rods by the accused. The injuries caused to the prosecutrix by
      incessantly and abominably injuring her private parts using the concerned
      iron rods were so grave that death was the inevitable consequence. As
c     already noted, both the iron rods, Ex.P-49/1 and Ex.P-49/2, were
      recovered at the instance of accused Ram Singh from inside the
      concerned bus. The DNA profile developed from the blood stains obtained
      from the iron rods is also consistent with the DNA profile of the
      prosecutrix. In such circumstances, merely because the finger prints of
D     the accused were not obtained from the iron rods, it cannot be concluded
      that the accused were not linked with the concerned iron rods. Accused
      Ram Singh himself had the iron rods recovered to the Investigating
      Officer. Furthermore, the dying declaration of the prosecutrix, which is
      highly reliable, clearly establishes the horrendous use of iron rods by the
      accused persons.
E
             196. The iron rods were sent for forensic examination to the CFSL.
      The DNA profile developed from the blood stains ob.tained from the iron
      rods recovered at the instance of accused Ram Singh was found to be
      of female origin and were found to be consistent with the DNA profile
      of the prosecutrix. Hence, the factum of insertion of iron rods in the
F     private parts of the prosecutrix is also fortified by the scientific evidence.
             197. PW-I, in his chief examination, deposed that he was severely
      assaulted by the accused with iron rods on his head and the rest of his
      body. It is submitted that as per MLC of PW-I, Ex.PW-51/A, the nature
      of injuries sustained by PW- I were simple. It is contended that if PW-I
G     was beaten with the iron rod in the manner alleged by him, he would
      have sustained more serious injuries. It is canvassed that PW- I sustained
      only simple injuries which leads to an inference that the iron rod was not
      used in the manner stated by the prosecution. Of course, as per Ex.PW-
      51/A, PW-I sustained simple injuries but as seen from Ex.PW-51/A,
H     there was also nasal bleeding from his nose and PW-I was also vomiting.
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             155
                   [DIPAK MISRA, J.]

Merely because the injuries sustained by PW-I were opined to be of             A
simple nature, the use of iron rods cannot be doubted.
        198. Learned counsel for the appellants further stressed on the
point that PW- I neither in his MLC, Ex. PW-51 /A, nor in his complaint,
Ex.PWl/A, mentioned the use of iron rod; the description ofbus or the
names of the accused. In this regard, it has to be kept in mind that the       B
purpose of FIR is mainly to set the criminal law in motion and not to lay
down every minute detail and the entire gamut of the evidence relating
to the case and, therefore, non-mention of use of iron rods in the FIR
does not remotely create a dent in the case of the prosecution. When
the subsequent statements of the prosecutrix well corroborated by the
medical evidence are available, it is completely immaterial that the           c
statement of PW-I does not mention the use of iron rods. Thus, PW-1 's
omission to state the factum of use of iron rods in his complaint or MLC
is not fatal to the case of the prosecution.
       199. It is apposite to state here that non-mention of the use of iron
rods in PW-1 's statement has been a ground for giving rise to suspicion       D
of his testimony. We find it difficult to comprehend as to how PW-I
could have been aware of any use of iron rods against the prosecutrix.
PW-I was being held by the accused towards the front of the bus, while
the prosecutrix was being raped at the rear side of the bus and the lights
of the bus also had been turned off. His statement in his complaint,           E
Ex.PW-I/A, that he heard the prosecutrix shouting and crying and that
her voice was oscillating is consistent with the narration of facts as also
the medical records.
        200. The second statement of the prosecutrix recorded in Ex.PW-
27 /A by PW-27, Smt. Usha Chaturvedi, has detailed the account of the          F
entire incident specifying the role of each accused; gang rape/unnatural
sex committed upon her; and the injuries caused in her vagina and rectum
by use ofiron rod and by inserting of hands by the accused are mentioned.
This statement, in fact, bears the date and signature of the prosecutrix
and records that the accused committed gang rape on her, inserted iron
rod in the vagina and through anal opening causing injuries to the internal    G
organs of the prosecutrix. The subsequent statement of the prosecutrix
also affirms the above facts. That apart, as per the medical opinion
Ex.PW-49/G given by PW-49, the recto-vaginal injury of the prosecutrix
could be caused by the rods recovered from the bus.
                                                                               H
156            SUPREME COURT REPORTS                               [2017] 6 S.C.R.



A           Anatomy argument
            201. Learned counsel for the appellants also submitted that ifthe
      rods purported to be used had actually been inserted through the vagina,
      it would have first destroyed the uterus before the intestines were pulled
      out. It was submitted that there were no rods related injuries in her
B     uterus and medical science too does not assist the prosecution in their
      claim that the iron rods were used as a weapon for penetration. Mr.
      Sharma placed reliance on:
            1. the first OT notes, Ex. PW-50/A that were made following the
            first operation of the prosecutrix on 17 .12.2012 and where the
C           following was recorded:
            "uterus, BIL tubes and ovaries seen and healthy"
            2. the case sheet of the operation conducted on 19.1·2.2012,
            presented as Ex. PW-50/D, wherein the following was recorded:

D           "Gynae findings
             ... C" vaginal vault and ant vaginal wall (H) ... "
            3. the post-mortem report, Ex. PW-34/A, that was prepared in
            Mount Elizabeth Hospital, Health Science Authority, Singapore,
            by the Autopsy doctor, Dr. Paul Chui on 29.12.2012 and where
 E          the following was recorded:
             "Uterus, Tubes and Ovaries
             Uterus, tubes and ovaries were present in their normal anatomical
             positions. The uterus measured 8cm x 5cm x 3.Scm. Thin
             fibrinopurulent adhesions were present on the serosal surfaces of
 F           the uterus and the adnexae. Cervix appeared normal and the os
             was closed. There were no cervical erosions and no haemorrhages
             on the intra-vaginal aspect of the cervix. Cut sections showed
             thin endometrium and normal myometrium. Tubes were normal.
             Both ovaries were normal in size. Cut sections of both ovaries
G            showed corpus lutea, the largest of which was present in the right
             ovary."
              The learned counsel for the appellants submit that that if the
      doctors in the surgery team did not find the uterus damaged, then it
      cannot be claimed that the rod was inserted in her private parts and
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             157
                   [DIPAK MISRA, J.]

intestines were pulled out.                                                    A
        202. The aforesaid submission can be singularly rejected without
much discussion on the foundation that a question to that effect was not
put to the doctors in their respective cross-examinations. However, instead
of summary rejection, we shall deal with it for the sake of our satisfaction
and also to meet the contention. While it may be so that the uterus,           B
tubes and the cervix were not damaged, that does not mean that the
intestines could not have been damaged as they have been. It stands to
reason based on common understanding and medical science to allay
this contention. First, it is nowhere the stance that the rod was inserted
only through the vagina. The prosecutrix herself had stated in her dying
declarations that she was raped through the vagina as also the anus, Ex.       c
PW-27I A. The anus is directly connected to the intestines via the rectum
and, thus, deep penetration by use of a rod or other long object could
have caused injuries to the bowels/intestines.
       203. To appreciate the above contention, it is necessary to
understand the anatomy and position of the uterus. We may profitably           D
refer to the following excerpts from 'Gray's Anatomy: Descriptive
and Applied', 34tli Edn. [Orient Longman Publication] at pages 1572
and 1579:
      "THE UTERUS: The uterus, or womb, is a hollow, thick-walled,
      muscular organ situated in the lesser pelvis between the urinary         E
      bladder in front and the rectum behind. Into its upper part the
      uterine tubes open one on each side, while below, its cavity
      communicates with that of the vagina. When the ova are
      discharged from the ovaries, they are carried to the uterine cavity
      through the uterine tubes. lfan ovum be fertilized it embeds itself      F
      in the uterine wall and is normally retained in the uterus until
      prenatal development is completed, the uterus undergoing changes
      in size and structure to accommodate itself to the needs of the
      growing embryo. After parturition the uterus returns almost to its
      former condition, though it is somewhat 'larger than in the virgin
      state. For general descriptive purposes the adult virgin uterus is       G
      taken as the type form.
       ln the virgin state the uterus is flattened from before backwards
       and is pear-shaped, with the narrow end directed downwards and
       backwards. It lies between the bladder below and in front, and
                                                                               H
158            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A           the sigmoid colon and rectum above and behind, and is completely
            below the level of the pelvic inlet.
              The long axis of the uterns usually lies approximately in the axis
            of the pelvic inlet (p.440), but as the organ is freely movable its
            position varies with the state of distension of the bladder and
B           rectum. Except when much displaced by a distended bladder, it
            forms almost a right angle with the vagina, since the axis of the
            vagiria correspond to the axes of the cavity and outlet of the lesser
            pelvis (p. 440)" (at page 1572)
              "THE VAGINA: The vagina is a canal which extends from the
c           vestibule, or cleft between the labia minora, to the uterns, and is
            situated, behind the bladder and urethra, and in front of the rectum
            and anal canal; it is directed upwards and backwards, its axis
            forming with that of the utems an angle of over ninety degrees,
            opening forwards ... " (at page 1579)
D            "And 'A Fascimile: Gray's Anatomy' (at page 723) [Black Rose
            Publications]
                       "THE VAGINA"


                Relations: Its anterior surface is concave, and in relation with
 E
                the base of the bladder, and with the urethra. Its posterior
                surface is convex, and connected to the anterior wall of
                the rectum, for the lower three-fourths of its extent.. .. "
              The aforesaid excerpts establish that the vagina and uterns are
      almost at right angles to each other and the rectum is only separated by
 F
      a wall of tissue. The pelvic cavity as set forth in the diagram in the book
      supports the same.
            204. The exhibits relating to injuries may be noted. OT notes from
      17.12.2012 and 19.12.2012 read as under:
 G          "OT Notes:
            PW 50/B: Call received from Dr. Gaurav and Dr. Piyush at approx.
            4.00 a.m. from noty OT.
            Immediately reached OT and reviewed the details ofintemal injury
            (as mentioned in OT notes) the condition of the small and large
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             159
                 [DIPAK MISRA, J.]

      bowel extremely bad for any definitive repair. The condition            A
      explained to the mother of the patient and the police officials
      present. Case discussed with Dr. S.K. Jain. Int. I/C telephonically."
      205. The operative findings which are seen from the examination
done by the Gynaecologist and the Surgeons are:
                                   "Perinea!                                  B

      • Abdominal findings: Rectum is longitudinally tom on anterior
        aspect in continuation with tear. This tear is continuing upward
        involving sigmoid colon descending colon which is splayed open.
        The margins are edematous.
                                                                              c
      • There are multiple longitudinal tear in the mucosa of rectosigmoid
         area.
      • Transverse colon was also torn and gangrenous.
      • Hepatic flexure ascending colon and caecum were gangrenous
        and multiple perforation at many places.                              D
      • Terminal item approximately I Yi feet loosely hanging in the
         abdominal cavity. It was avulsed from its mesentery and was
         nonviable.
      • Rest of small bowel was nonenlistend with only patens of mucosa
                                                                              E
         at places and border of the mesentery was contused. This
         contused mesentery border initially appeared (during first
         surgery) as contused small bowel.
      • Jejunostomy stoma was gangrenous for approximately 2 cm.
      • Stomach and duodenum was distended but healthy.                       F
      Surgical Procedure:
      • Resection of gangrenous terminal ileum, caecum, appendix,
         ascending colon, hepatic flexure and transverse colon was done.
      •Resection of necrotic jejuna! stoma with closure of                    G
        duodenojejunal flexure in two layers by 3-0 viaeny.
      • Diverting lateral tube dudoenostomy (with I SF Folley's catheter)
         brought through right flank.
      • Tube gastrostomy was added as another decompressive
                                                                              H
160            SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A              measures (28 size apotere tube was used) Tube gastrostomy
               was brought and from previous jejunostomy site.
            • Abdominal drain placed in pelvis.
            • Rectal sheath closed by using No. 1 prolene interrupted sutures.
B           • Skinclosedbyusing 1-0nylone.
            • Perinea! wound packed with Betadine soaked gauze piece.
            • T-Bandage applied
            • ASD done for abdominal wound.
C           • Patient tolerated procedure and was shifted back to ICU-I.
            Post OP Advise
            I. NPO
            2. CRTA
D           3. TVF as per CVP and output by ICU team.
            4. Injection menopenum Limezolid to be continued as before.
            5. Injectionmetronidazole lOOml IVTDS.
            6. Injection Pantoprozole 20 mg IV OD
 E
            7. Strict I/O charting..
            8. Rest of the treatment as advised by ICU team."
             206. From the nature of the injuries noted in the OT Notes, the
      rectum was longitudinally tom and transverse colon was tom. From the
 p    Post-Mortem Certificate, the uterus was found in position (no injuries to
      uterus). If the rod was inserted in the vagina, having regard to the fact
      that the injury within the vagina was only in the posterior surface, it
      indicates that the rod was pushed inside with a downward force and not
      upward (which could have resulted in injury to the uterus) and it perhaps
      tunnelled its way through the vagina into the rectal cavity and the bowels.
 G    Therefore, merely because no injuries to the uterus of the victim were
      noticed, that does not lead to the conclusion that iron rod was not used.
      Thus, the submission that has been raised with immense enthusiasm and
      ambition to create a concavity in the case of the prosecution on this
      score deserves to be repelled and we do so.
 H
     MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             161
                   [DWAK MISRA, J.]

        Analysis of evidence pertaining to DNA                                  A
       207. Having dealt with the aspect pertaining to insertion of rod, it
is apposite to advert to the medical evidence and post mortem report.
We have, while dealing with other aspects, refeITed to certain aspects
including DNA analysis of medical evidence but the same requires to be
critically dealt with as the prosecution has placed hevy reliance upon it.      B
        208. DNA is the abbreviation ofDeoxyribo Nucleic Acid. It is the
basic genetic material in all human body cells. It is not contained in red
blood corpuscles. It is, however, present in white corpuscles. It carries
the genetic code. DNA structure detennines human character, behaviour
and body characteristics. DNA profiles are encrypted sets of numbers            c
that reflect a person's DNA makeup which, in forensics, is used to identify
human beings. DNA is a complex molecule. It has a double helix structure
which can be compared with a twisted rope 'ladder'.
        209. The nature and characteristics of DNA had been succinctly
explained by Lord Justice Phillips in Regina v. Alan James Doheny &             D
Gary Adams83 • In the above case, the accused were convicted relying
on results obtained by comparing DNA profiles obtained from a stain
left at the scene of the crime with DNA profiles obtained from a sample
of blood provided by the appellant. In the above context, with regard to
DNA, the following was stated by Lord Justice Phillips:
                                                                                E
         "Deoxyribonucleic acid, or DNA, consists of long ribbon-like
         molecules, the chromosomes, 46 of which lie tightly coiled in nearly
         every cell of the body. These chromosomes - 23 provided from
         the mother and 23 from the father at conception, fonn the genetic
         blueprint of the body. Different sections of DNA have different
         identifiable and discrete characteristics. When a criminal leaves      F
         a stain of blood or semen at the scene of the crime it may prove
         possible to extract from that crime stain sufficient sections of
         DNA to enable a comparison to be made with the same sections
       . extracted from a sample of blood provided by the suspect. This
         process is complex and we could not hope to describe it more           G
         clearly or succintly than did Lord Taylor C.J. in the case of Deen
         (transcript:December 21, 1993), so we shall gratefully adopt his
         description.

83
     1997 (I) Criminal Appeal Reports 369
                                                                                H
162            SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A             "The process of DNA profiling starts with DNA being extracted
              from the crime stain and also from a sample taken from the
              suspect. In each case the DNA is cut into smaller lengths by
              specific enzymes. The fragments produced are sorted according
              to size by a process of electrophoresis. This involves placing the
              fragments in a gel and drawing them electromagnetically along
B
              a track through the gel. The fragments with smaller molecular
              weight travel further than the heavier ones. The pattern thus
              created is transferred from the gel onto a membrane. Radioactive
              DNA probes, taken from elsewhere, which bind with the
              sequences of most interest in the sample DNA are then applied.
c             After the excess of the DNA probe is washed off, an X-ray film
              is placed over the membrane to record the band pattern. This
              produces an auto radiograph which can be photographed. When
              the crime stain DNA and the sample DNA from the suspect
              have been run in separate tracks through the gel, the resultant
              auto-radiographs can be compared. The two DNA profiles can
D
              then be said either to match or not." "
             210. In the United States, in an early case Frye v. United States 84 ,
      it was laid down that scientific evidence is admissible only ifthe principle
      on which it is based is substantially established to have general acceptance
      in the field to which it belonged. The US Supreme Court reversed the
 E    above formulation in Daubert v. Merrell Dow Pharmace11ticals, Inc. 85
      stating thus:
             "11. Although the Frye decision itself focused exclusively on
             "novel" scientific techniques, we do not read the requirements of
             Rule 702 to apply specially or exclusively to unconventional
 F           evidence. Of course, well-established propositions are less likely
             to be challenged than those that are novel, and they are more
             handily defended. Indeed, theories that are so firmly established
             as to have attained the status of scientific law, such as the laws of
             thermodynamics, properly are subject to judicial notice under
G            Fed.Rule Evid.201.
             13. This is not to say that judicial interpretation, as opposed to
             adjudicative fact finding, does not share basic characteristics of
             the scientific endeavor: "The work of a judge is in one sense
      84
        54 App. D.C. 46 (l 923)
H     " 113 S.CT. 2786 (1993)
      MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              163
                    [DTPAK MISRA, J.]

         enduring and in another ephemeral. .. In the endless process of          A
         testing and retesting, there is a constant rejection of the dross and
         a constant retention of whatever is pure and sound and fine."
         B.Cardozo, The nature of the Judicial Process 178, 179 ( 1921 )."
         211. The principle was summarized by Blackmun, J., as follows:
         "To summarize: "general acceptance" is not a necessary                   B
         precondition to the admissibility of scientific evidence under the
         Federal Rules of Evidence, but the Rules of Evidence-especially
         Rule 702-do assign to the trial judge the task of ensuring that an
         expert's testimony both rests on a reliable foundation and is relevant
         to the task at hand. Pertinent evidence based on scientifically          c
         valid principles will satisfy those demands.
           The inquiries of the District Court and the Court of Appeals
         focused almost exclusively on "general acceptance," as gauged
         by publication and the decisions of other courts. Accordingly, the
         judgment of the Court of Appeals is vacated and the case is              D
         remanded for further proceedings consistent with this opinion."


       212. After the above judgment, the DNA Test has been frequently
applied in the United States of America. Tn District Attorney's Office
for the Third Judicial District et al. v. William G Osborne86 , Chief             E
Justice Roberts of the Supreme Court of United States, while refen-ing
to the DNA Test, stated as follows:
         "DNA testing has an unparalleled ability both to exonerate the
         wrongly convicted and to identify the guilty. Tt has the potential to
         significantly improve both the criminal justice system and police
                                                                                  F
         investigative practices. The Federal Government and the States
         have recognized this, and have developed special approaches to
         ensure that this evidentiary tool can be effectively incorporated
         into established criminal procedure-usually but not always through
         legislation.
                                                                                  G

           Modem DNA testing can provide powerful new evidence unlike
         anything known before. Since its first use in criminal investigations
         in the mid-1980s, there have been several major advances in DNA
86
     129 Supreme Court Reporter 2308
                                                                                  H
164            SUPREME COURT REPORTS                            [2017] 6 S.C.R.


A           technology, culminating in STR technology. It is now often possible
            to determine whether a biological tissue matches a suspect with
            near certainty. ·While of course many criminal trials proceed
            without any forensic and scientific testing at all, there is no
            technology comparable to DNA testing for matching tissues when
            such evidence is at issue."
B
             213. DNA technology as a part ofForensic Science and scientific
      discipline not only provides guidance to investigation but also supplies
      the Court accrued information about the tending features of identification
      of criminals. The recent advancement in modem biological research has
      regularized Forensic Science resulting in radical help in the administration
c     ofjustice. In our country also like several other developed and developing
      countries, DNA evidence is being increasingly relied upon by courts.
      After the amendment in the Criminal Procedure Code by the insertion
      of Section 53A by Act 25 of 2005, DNA profiling has now become a
      part of the statutory scheme. Section 53A relates to the examination of
D     a person accused of rape by a medical practitioner.
             214. Similarly, under Section 164A inserted by Act 25 of2005, for
      medical examination of the victim of rape, the description of material
      taken from the person of the woman for DNA profiling is must. Section
      53A sub-section (2) as well as Section 164(A) sub-section (2) are to the
 E    following effect:
             "Section 53A. Examination of person accused of rape by
             Medical Practitioner.-
             (I) ...

 F           (2) The registered medical practitioner conducting such
             examination shall, without delay, examine such person and prepare
             a report of his examination giving the following particulars, namely:-
                (i) the name and address of the accused and of the person by
                    whom he was brought,
 G              (ii) the age of the accused,
                (iii) marks of injury, if any, on the person of the accused,
                (iv) the description of material taken from the person of the
                    accused for DNA profiling, and

 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                           165
                 [DIPAK MISRA, J.]

         (v) other material particulars in reasonable detail.               A
      Section 164A. Medical Examination of the victim of rape.-
      (I) ...
      (2). The registered medical practitioner, to whom such woman is
      sent, shall, without delay, examine her person and prepare a report   B     .
      of his examination giving the following particulars, namely:-
          (i) the name and address of the woman and of the person by
             whom she was brought;
          (ii) the age of the woman;
          (iii) the description of material taken from the person of the
                                                                            c
             woman for DNA profiling;
          (iv) marks of injury, if any, on the person of the woman;
          (v) general mental condition of the woman; and
          (vi) other material particulars in reasonable detail."            D

     215. This Court had the occasion to consider various aspects of
DNA profiling and DNA reports. K.T. Thomas, J. in Kamti Devi (Smt.)
and another v. Poshi Ram 87, observed:
      "IO. We may remember that Section 112 of the Evidence Act             E
      was enacted at a time when the modern scientific advancements
      with deoxyribonucleic acid (DNA) as well as ribonucleic acid
      (RNA) tests were not even in contemplation of the legislature.
      The result of a genuine DNA test is said to be scientifically
      accurate. . .. "
                                                                            F
      216. In Pantangi Ba/arama Venkata Ganesh v. State ofAnd/11~a
Pradesh 8·', a two-Judge Bench had explained as to what is DNA in the
following manner:
      "41. Submission ofMr Sachar that the report ofDNA should not
      be relied upon, cannot be accepted. What is DNA? It means:
                                                                            G
         "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
" (200 1) s sec 3 11
" (2009) 14 sec 607
                                                                            H
166           SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A             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 ? need of
B          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
 c         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:
D
               "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.""
 E
            217. In Santosh Kumar Singh v. State Through CB/8 9, which
      was a case of a young girl who was raped and murdered, the DNA
      reports were relied upon by the High Court which were approved by
      this Court and it was held thus:
            "71. We feel that the trial court was not justified in rejecting the
 F
            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 (supra). In
            atTiving at its conclusions the trial court was also influenced by
 G          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."
      "(2010)9SCC747
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            167
                 [DIPAK MISRA, J.]

       218. In Inspector of Police, Tamil Nadu v. John Davi~ 0 • a A
young boy studying in MBBS Course was brutally murdered by his senior.
The torso and head were recovered from different places which were
identified by the father of the deceased. For confirming the said facts,
the blood samples of the father and mother of the deceased were taken
which were subject to DNA test. From the DNA, the identification of B
the deceased was proved. Paragraph 60 of the decision is reproduced
below:
      "60 .... The said fact was also proved from the DNA test
      conducted by PW 77. PW 77 had compared the tissues taken
      from the severed head, torso and limbs and on scientific analysis
      he has found that the same gene found in the blood of PWl and          c
      Baby Ponnusamy was found in the recovered parts of the body
      and that therefore they should belong to the only missing son of
      PW I."
      219. In Kris/tan Kumar Malik v. State of Haryana 91 , in a gang
rape case when the prosecution did not conduct DNA test or analysis          D
and matching of semen of the appellant-accused with that found on the
undergarments of the prosecutrix, this Court held that after the
incorporation of Section 53-A in CrPC, it has become necessary for the
prosecution to go in for DNA test in such type of cases. The relevant
paragraph is reproduced below:                                               E
      "44. Now, after the incorporation of Section 53-A in the Cr.P.C
      w.e.f23.06.2006, brought to our notice by the learned counsel for
      the respondent State, it has become necessary for the prosecution
      to go in for DNA test in such type of cases, facilitating the
      prosecution to prove its case against the accused. Prior to 2006,      F
      even without the aforesaid specific provision in CrPC the
      prosecution could have still restored to this procedure of getting
      the DNA test or analysis and matching of semen of the appellant
      with that found on the undergarments of the prosecutrix to make
      it a foolproof case, but they did not do so, thus they must face the
      consequences."                                                         G
      220. In Surendra Kofi v. State of Uttar Pradesh and others 91,
the appellant, a serial killer, was awarded death sentence which was
" (2011) s sec so9
" (2011)7 sec 130
" (2011) 4 sec so                                                            H
168            SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A     confirmed by the High Court. While confirming the death sentence, this
      Court relied on the result of the DNA test conducted on the part of the
      body of the deceased girl. Para 12 is reproduced below:-
            "12. The DNA test of Rimpa by CDFD, a pioneer institute in
            Hyderabad matched with that ofb load of her parents and brother.
B           The doctors at AIIMS have put the parts of the deceased girls
            which have been recovered by the doctors of AIIMS together.
            These bodies have been recovered in the presence of the doctors
            of AIIMS at the pointing out by the accused Surendra Koli. Thus,
            recovery is admissible under Section 27 of the Evidence Act."

c           221. In Mohammed Ajmal Mohammad Amir Kasab alia!J· Abu
      Mujahid v. State of Maharashtra 93, the accused was awarded death
      sentence on charges of killing large number of innocent persons on 261h
      November, 2008 at Bombay. The accused with others had come from
      Pakistan using a boat 'Kuber' and several articles were recovered from
      'Kuber'. The stains of sweat, saliva and other bodily secretions on
D     those articles were subjected to DNA test and the DNA test matched
      with several accused.
            The Court observed:
            "333. It is seen above that among the articles recovered from
E           Kuber were a number of blankets, shawls and many other items
            of clothing. The stains of sweat, saliva and other bodily secretions
            on those articles were subjected to DNA profiling and, excepting
            Imran Babar (deceased Accused 2), Abdul Rahman Bada
            (deceased Accused 5), Fahadullah (deceased Accused 7) and
            Shoaib (deceased Accused 9), the rest of six accused were
F           connected with various articles found and recovered from the
            Kuber. The appellant's DNA matched the DNA profile from a
            sweat stain detected on one of the jackets. A chart showing the
            matching of the DNA of the different accused with DNA profiles
            from stains on different articles found and recovered from the
G           Kuber is annexed at the end of the judgment as Schedule ltI."
            222. In Sandeep v. State of Uttar Pradesh 94 , the facts related to
      the murder of pregnant paramour/girlfriend and unbom child of the
      accused. The DNA report confirmed that the appellant was the father
      " c2012) 9 sec 1
H     " c2012) 6 sec 101
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                                169
                  [DIPAK MISRA, J.]

of the unborn child. The Court, relying on the DNA report, stated as              A
follows:
      "67. In the light of the said expert evidence of the Junior Scientific
      Officer it is too late in the day for the appellant Sandeep to contend
      that improper preservation of the foetus would have resulted in a
      wrong report to the effect that the accused Sandeep was found               B
      to be the biological father of the foetus received from the deceased
      Jyoti. As the said submission is not supported by any relevant
      material on record and as the appellant was not able to substantiate
      the said argument with any other supporting material, we do not
      find any substance in the said submission. The circumstance,
      namely, the report of DNA in having concluded that accused                  C
      Sandeep was the biological father of the recovered foetus of Jyoti
      was one other relevant circumstance to prove the guilt of the said
      accused."
       223. In Rajkumar v. State of Madhya Pradesh 95 , the Court was
dealing with a case of rape and murder of a 14 year old girl. The DNA             D
report established the presence of semen of the appellant in the vaginal
swab of the prosecutrix. The conviction was recorded relying on the
DNA report. In the said context, the following was stated:
      "8. The deceased was 14 years of age and a student in Vlth
      standard which was proved from the school register and the                  E
      statement of her father Iknis Jojo (PW!). Her age has also been
      mentioned in the FIR as 14 years. So far as medical evidence is
      concerned, it was mentioned that the deceased prosecutrix was
      about 16 years of age. So far as the analysis report of the material
      sent and the DNA report is concerned, it revealed that semen of             F
      the appellant was found on the vaginal swab of the deceased.
      The clothes of the deceased were also found having appellant's
      semen spots. The hair which were found near the place of
      occurrence were found to be that of the appellant."
       224. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik                    G
and another96 , the appellant, father of the child born to his wife, questioned
the paternity of the child on the ground that she did not stay with him for
the last two years. The Court directed for DNA test. The DNA result
"(2014) 5 sec 353
"(2014) 2 sec 576
                                                                                  H
170            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



·A    opined that the appellant was not the biological father of the child. The
      Court also had the occasion to consider Section 112 of the Evidence Act
      which raises a presumption that birth during ma1Tiage is conclusive proof
      oflegitimacy. The Court relied on the DNA test holding the DNA test to
      be scientifically accurate. The pertinent observations are extracted below:
B           "19. The husband's plea that he had no access to the wife when
            the child was begotten stands proved by the DNA test report and
            in the face of it, we cannot compel the appellant to bear the
            fatherhood of a child, when the scientific reports prove to the
            contrary. We are conscious that an innocent child may not be
            bastardised as the ma1Tiage between her mother and father was
c           subsisting at the time of her birth, but in view of the DNA test
            reports and what we have observed above, we cannot forestall
            the consequence. It is denying the truth. "Trnth must triumph" is
            the hallmark of justice.
            20. As regards the authority of this Court in Kamti Devi, this
D           Court on appreciation of evidence came to the conclusion that the
            husband had no opportunity whatsoever to have liaison with the
            wife. There was no DNA test held in the case. In the said
            background i.e. non-access of the husband to the wife, this Court
            held that the result of DNA test "is not enough to escape from the
 E          conclusiveness of Section 112 of the Act." The judgment has to
            be understood in the factual scenario of the said case. The said
            judgment has not held that DNA test is to be ignored. In fact, this
            Court has taken note of the fact that DNA test is scientifically
            accurate. We hasten to add that in none of the cases refelTed to
            above, this Court confronted with a situation in which a DNA test
 F          report, in fact, was available and was in conflict with the
            presumption of conclusive proof of legitimacy of the child under
            Section 112 of the Evidence Act. In view of what we have
            observed above, these judgments in no way advance the case of
            the respondents."
 G           From the aforesaid authorities, it is quite clear that DNA report
      deserves to be accepted unless it is absolutely dented and for non-
      acceptance of the same, it is to be established that there had been no
      quality control or quality assurance. If the sampling is proper and if
      there is no evidence as to tampering of samples, the DNA test report is
H     to be accepted.
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              171
                  [DIPAK MISRA, J.]

      225. In order to establish a clear link between the accused persons       A
and the incident at hand, the prosecution has also adduced scientific
evidence in the form of DNA, fingerprint and bite mark analysis.
       226. Various samples, for the purpose of DNA profiling, were
lifted from the person of the prosecutrix; the informant; the accused,
their clothes/ articles; the dumping spot; the iron rods; the ashes of partly   B
burnt clothes; as well as from the offending bus. PW-45, Dr. B.K.
Mohapatra, analysed the said DNA profiles and submitted his report
thereof. In his report, he concluded that the samples were authentic and
capable of establishing the identities of the persons concerned beyond
reasonable doubt.
                                                                                c
       227. After establishing the identities of each of the accused persons,
the informant and the prosecutrix 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 informant and the accused,
generated earlier from known samples. Such an analysis cogently linked          D
each of the accused with the victims as also with the crime scene. A
summary of the findings in the report submitted by PW-45, Dr. B.K.
Mohapatra, is as under:

    "S.No.  Accused                     DNA EVIDENCE                            E
    1      Ram Singh          Rectal swab from the prosecutri x
                              contained DNA of male origin, which
                              was found consistent with the DNA
                              developed from the blood sample of this
                              accused.
                                                                                F
                              DNA profile developed from the blood
                              stains from the underwear, T-shirt and
                              slippers of this accused was fo1md
                              consistent with the DNA of the
                              prosecutrix.
                                                                                G
    2         Mukesh          DNA profile developed from the blood
                              stains from the pants, T-shirt and jacket
                              of this accused was found consistent
                              with the DNA of the prosecutrix.
                                                                                H
172            SUPREME COURT REPORTS                               (2017] 6 S.C.R.


A
          3     Akshay        Breast swab of the prosecutrix contained
                              DNA of male origin which was found
                              consistent with the DNA of this accused.


B                             DNA profile developed from the blood stains
                              from the jeans of this accused was found
                              consistent with the DNA of the prosecutrix.
          4     Vi nay        DNA profile developed from the blood stains
                              from the undeiwear, jacket and slippers of
                              this accused was found consistent with the
c                             DNA of the prosecutrix.
          5     Pawan         DNA profile developed from the blood stains
                              from the sweater and shoes and slippers of
                              this accused was found consistent with the
                              DNA of the prosecutrix."
D
            228. Further, a summary of the DNA analysis of the biological
      samples lifted from the material objects such as the bus, the iron rods,
      and the ash and unburnt pieces of clothes is also worth producing here:
         ''Serial    Identity of Che            Findings of DNA Analysis
 E         No.          victim
          I.        Jnformmt           I.   The DNA profile d!veloped from burnt
                                            clothes pieces was found to be of male
                                            origin and was co11.5istent with the DNA
                                            profile of conplainant.

 F
                                       ii. The bmch of [X\JA profile developed
                                           from hair aid blood stained pieces of
                                           paper ra:overed from the bus WlE found
                                           coIBistent Vlith the DNA profile of
                                           co1Tplainant.
 G
                                       iii. The DNA profile devel opui from blood
                                            stained dried leaves collected from the
                                            place where both the victim; were
                                            thrown 1mtched with the DNA profile
                                            ofconwlainant.
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               173
                 [DIPAK MISRA, J.]

                                                                                A
    2. Prosecutrix       I.    The DNA profile reveloped from blood stairn
                               from both the iroo rods recovered at the
                               instance of acrused Ran Singh from 00s wa;
                               of female origin and was cornistent with the
                               DNA profile of prcrecutrix.
                         ii.   The DNA profile developed from blood stairn      B
                               from curtain; of the bJs rmtchro with the
                               DNA profile of pra;ecutrix.
                        111.   The DNA profile reveloped from blood stairn
                               from seat rovers WIS fo.md consistent with
                               the DNA profile of prrnecut1i x.
                        IV.    DNA profile developed from blood stain;
                                                                                c
                               from the bunch of the rnir recovered. from
                               flocr of the bJs below sixth row sea, blood
                               stairn ireimed from the roof of the 00s near
                               back g;ite, blood stairn prepa-ed fran the
                               flocr of the 00s near ruck g;ite, blood stairn   D
                               taken from side of ba:k stairs of the bus, and
                               blood stains taken from the inner side of the
                               back cbcr of the b.is wa; found consistent
                               with the DNA profile of prrnecutrix.

                                                                                E
      229. PW-45, Dr. B.K. Mohapatra, has clearly testified in his cross-
examination that all the experiments conducted by him confirmed to the
guidelines and methodology documented in the Working Procedure
Manuals of the laboratory which have been validated and recommended
for use in the laboratory. He further added that once a DNA profile is
generated, its accuracy is 100%. The trial court and the High Court             F
have consistently noted that the counsel for the defence did not raise
any substantial ground to challenge the DNA report during the cross-
examination of PW-45. In such circumstances, there is no reason to
declare the DNA report as inaccurate, especially when it clearly links
the accused persons with the incident.                                          G
      230. Mr. Sharma, learned counsel appearing for appellants -
Mukesh and Pawan Kumar Gupta, submitted that in the insant case, the
DNA test cannot be treated to be accurate, for there was blood
transfusion as the prosecutrix required blood and when there is mixing
                                                                                H
174             SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A     of blood, the DNA profiling is likely to differ. It is seemly to note, nothing
      had been put to the expert in his cross-examination in this regard. As the
      authorities relating to DNA would show, ifthe quality-control is maintained,
      it is treated to be quite accurate and as the same has been established,
      we are compelled to repel the said submission of Mr. Sharma.
B            The evidence relating to finger print analysis:
             231. Next aspect that is required to be adverted is the evidence of
      fingerprint analysis adduced by the prosecution to establish the identity
      of the accused persons. By virtue of the finger print analysis, the
      prosecution has tried mainly to establish the presence of the accused in
c     the offending bus. On 17.12.2012 and 18.12.2012, a team of experts
      from the CFSL had lifted chance finger prints from the concerned bus,
      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
D     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),
 E    CFSL, CBI, submitted his report, Ex.PW-46/D.
             232. 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 Vi nay Sharma were found on the
      bus in question. The relevant portion of the report is as under:
 F           "RESULT OF EXAMINATION:
             1. The chance print marked as Q.1 is identical with left palmprint
             specimen ofVinay Shanna S/o Sh.Hari Ram Shanna 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
G            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
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               175
                  [DIPAK MISRA, J.]

          impression of Vinay Sharma S/o Sh.Hari Ram Sha1ma marked               A
          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
                                                                                 B
          placed at Annexure-2)."
      The above report incontrovertibly proves that accused Vi nay was
present in the bus at the time of the incident. Be it noted, the other
chance prints were found to be unfit for comparison or different from
specimen print.
                                                                                 c
          The Odonto/ogy report
      233. Now, we shall analyse the Odontology report. In today's
world, Odontology is a branch of forensic science in which dental
knowledge is applied to assist the criminal justice delivery system. S.
Keiser-Nielsen, an authority on Forensic Odontology defines the basic            D
concept of Forensic Odontology in the following words:
          "A. Forensic odontology is that branch of odontology which in the
          interests ofjustice deals with the proper handling and examination
          of dental evidence and with the proper evaluation and presentation
          of dental findings. Only a dentist can handle and examine dental       E
          evidence with any degree of accuracy; therefore, this field is above
          all a dental field."
          234. Professor Neilsen, elaborating-On Forensic Odontology, further
states:
          "B. There are three reasons for considering forensic odontology        F
          a well-defined and more or less independent subject: l) it has
          objectives different from those at which conventional dental
          education aims; 2) forensic dental work requires investigations
          and considerations different from those required in ordinary dental
          practice; and 3) forensic dental reports and statements have to be
                                                                                 G
          presented in accordance with certain legal formalities in order to
          be of value to those requesting aid.
            The area of forensic odontology consists of three major fields
          of activity: I) the examination and evaluation of injuries to teeth,
          jaws, and oral tissues from various causes: 2) the examination of
                                                                                 H
176            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A           bite marks with a view to the subsequent elimination or possible
            identification of a suspect as the originator; and 3) the examination
            of dental remains (whether fragmentary or complete, and including
            all types of dental restoration) from unknown persons or bodies
            for the purpose of identification."
B            235. In the instant case, the prosecution has relied upon the
      odontology report, i.e., bite mark analysis report prepared by PW-71,
      Dr. Ashith B. Acharya, to link the incident with the accused persons.
      The Odontology report links accused Ram Singh and accused Akshay
      with the crime in question.

c            236. Dr. K.S. Narayan Reddy, in his book, Medical Jurisprudence
      and Toxicology (Law, Practice and Procedure), Third Edition, 2010,
      Chapter VIII page 268, has extensively dealt with human bites, their
      patterns, the manner in which they should be lifted with a swab and
      moistened with sterile water and the manner in which such swabs need
      to be handled is delineated along with theirusefulness in identification.
D     The High Court has also referred to the same. It is as follows:
            "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
 E          victim or the accused may show the marks, usually on the hands,
            fingers, forearms, nose and ears."
            237. 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.
 F    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
 G          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.
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                          177
                 [DTPAK MISRA, J.)

      Exclusion is easier than positive matching."                         A
       238. In the present case, the photographs of bite marks taken by
PW-66, Shri Asghar Hussein, of different parts of the body of the
prosecutrix were examined by PW-71, Dr. Ashith B. Acharya. The
photographs depicted the bite marks on the body of the prosecutrix. The
said bite marks found on the body of the victim were compared with the     B
dental models of the suspects. The analysis showed 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 A ks hay.
An excerpt from the report, Ex. PW- 71/C, of PW-71, Dr. Ashith B.
Acharya, has been extracted by the High Court. It reads thus:
                                                                           c
      " ........ There is absence of any unexplainable discrepancies
      between the bite marks on Photograph No. 4 and 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 D
      Photograph Nos. I and 2 show some degree of specificity to this
      accused person's 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 E
      caused the bite marks visible on Photograph Nos. I and 2 ....... .
      x x xx 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 accused
      person with the name Akshay and the corresponding bite marks F
      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 G
      specificity to the accused person's 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 person's teeth. Therefore, the teeth on the dental H
178             SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A           models of the accused person with the name Akshay probably
            caused the bite marks visible on Photograph No.5."
             239. Be it noted, the present is a case where the victim's body
      contained various white bite marks. Bite mark analysis play an important
      role in the criminal justice system. Advanced development of technology
B     such as laser scanning, scanning electron microscopy or cone beam
      computed tomography in forensic odontology is utilized to identify more
      details in bite marks and in the individual teeth of the bite. Unlike
      fingerprints and DNA, bite marks lack the specificity and durability as
      the human teeth may change over time. However, bite mark evidence
      has other advantages in the criminal justice system that links a specific
c     individual to the crime or victim. For a bite mark analysis, it must contain
      abundant information and the tooth that made the mark must be quite
      distinctive.
             240. Bite marks in skin are photographed in cases where the
      suspect is apprehended. A thorough dental combination is administered
D     after dental examination of the suspect. Final comparison of the details
      of the original mark with the dentation of the suspect is done by experts.
             241. The bite marks generally include only a limited number of
      teeth. The teeth and oral strncture of the accused are examined by
      experts and, thereafter, bite marks are compared and reports are
 E    submitted. Forensic Odontology is a science and the most common
      application ofForensic Odon to logy is for the purpose of identification of
      persons from their tooth strncture.
         242. Forensic Odontology has established itself as an important
  and indispensable science in medico-legal matters and expert evidence
F through various reports which have been utilized by courts in the
  administration ofjustice. In the case at hand, the report is wholly credible
  because of matching of bite marks with the tooth strncture of the accused
  persons and there is no reason to view the same with any suspicion.
  Learned counsel for the appellants would only contend that the whole
G thing has been stage-managed. We are not impressed by the said
  submission, for the evidence brought on record cogently establish the
  injuries sustained by the prosecutrix and there is consistency between
  the injuries and the report. We are not inclined to accept the hypothesis
  that bite marks have been managed.

H
      MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS. .                          179
                    [DIPAK MISRA, J.]

         Acceptability of the plea of alibi                                     A
       243. Presently, we shall deal with the plea of alibi as the same has
been advanced with immense conviction. It is well settled in law that
when a plea of alibi is taken by an accused, the burden is upon him to
establish the same by positive evidence after the onus as regards the
presence on the spot is established by the prosecution. In this context,        B
we may usefully reproduce a few paragraphs from Binay Kumar Singh
v. State of Bilrar97 :
         "22. We must bear in mind that an alibi is not an exception (special
         or general) envisaged in the Penal Code, 1860 or any other law. It
         is only a mle of evidence recognised in Section 11 of the Evidence     c
         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      D
             relevant."
         23. The Latin word alibi means 'elsewhere' and that word is used
         for convenience \\'.hen 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      E
         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.       F
         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        G
         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-
07
     <I 997) 1 sec 283
                                                                                H'
180            SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A           evidence to the effect that he was elsewhere when the occurrence
            hacyened. But ifthe 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 accused would, no doubt, be entitled
            to the benefit of that reasonable doubt. For that purpose, it would
B
            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 .... "
                                                             [underlining is ours]
 c          244. The said principle has been reiterated in Gurpreet Singh v.
      State ofHaryana 98, Shaikh Sattar v. State of Maharashtra 99, Jitender
      Kumar v. State of Haryana 100 and Vijay Pal (supra).
             245. We had earlier indicated that in their Section 313 CrPC
      statements, the accused have advanced the plea of alibi. Accused Pawan
D     Kumar Gupta@ Kaalu has taken the plea of alibi stating, inter a Ii.a, that
      throughout the evening of 16.12.2012 till late night, he was in the DDA
      District Park, Hauz Khas, Opposite HT Gate, New Delhi, watching a
      musical event organised in connection with Christmas Celebration and
      that he was never in the bus, Ex.PI, and had not committed any offence
      with the prosecutrix or with the informant.
 E
             246. Before coming to the defence evidence led by him, we may
      refer to the answers given by him in response to the questions put to him
      in his statement under Section 313 CrPC wherein he has admitted that
      mobile No. 9711927157 belongs to him. He fmiher stated that he had
      consumed liquor in the evening of 16.12.2012 and had accompanied
 F    accused Vinay Sharma to the musical event at DDA District Park where
      he took more liquor and fell unconscious and was later brought to his
      house by his father and uncle. He stated that he went out in the evening
      of 16.12.2012 and saw a quarrel between accused Vinay Sharma and
      accused Ram Singh (since deceased). Then he returned to his jhuggi.
 G    After sometime, he came out of his jhuggi and saw accused Vinay
      Sharma, his sister, mother and others going to a musical party and so, he
      also went with them and took more liquor in the party and even lost his
      mobile phone. Strangely enough, in his supplementary statement recorded
      " c2002) 8 sec 18
      " c20 lo) s sec 430
 H    roo (2012) 6 sec 204
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             181
                  [DIPAK MISRA, J.]

on 16.08.2013 under Section 313 CrPC, he stated that he was present in         A
the said party with his family members and friends and that a video clip
was prepared by one Ram Babu, DW-13, and that he does not remember
if he had accompanied accused Vinay Sharma to the said park on that
evening. It is in contradiction to the stand taken by him in his earlier
statement recorded under Section 313 CrPC.
                                                                               B
       247. Accused Pawan examined his father, DW-2, Shri Hira Lal
Ram, who deposed that on 16.12.2012 about 7: 15 p.m., when he came
to his house, he was informed by his daughter that accused Pawan had
gone to DDA District Park, Hauz Khas. It is in contradiction to the
deposition made by the other defence witnesses who have said that
accused Vinay Sharma and his family members had left Ravi Dass Camp,           c
Sector-3, R.K. Puram, New Delhi, about 8:00/8:30 p.m. and that accused
Pawan had accompanied them. Accused Pawan also said so in his initial
statement under Section 313 CrPC.
      248. DW-4, Shri Gyan Chand, the maternal uncle of accused
Pawan, deposed that he brought accused Pawan Gupta @ Kaalu to the              D
jhuggi from the DDA District Park and saw one Ram Charan warming
his hands on a bonfire just outside his jhuggi who came and asked him
about the well- being of accused Pawan. Ram Charan, DW-3, however,
deposed that about 8:30/9:00 p.m., he was sitting inside his jhuggi with its
door open and he saw accused Pawan being brought by his uncle in               E
drunken state. This is yet again in contradiction to what has been deposed
by the other defence witnesses who said that accused Pawan Gupta
and accused Vinay Sharma had rather left Ravi Dass Camp, Sector-3,
R.K. Puram, New Delhi about 8:00/8:30 p.m. for the DDA District Park.
      249. DW-16, a shopkeeper of the locality, had deposed that he            F
had seen the vehicle of Shri Gyan Chand about 9:00/9:30 p.m. on
16.12.2012 when accused Pawan Gupta was brought in drnnken condition
and was taken to his jhuggi. Initially, he failed to mention if Shri Hira
Ram was accompanying Shri Gyan Chand.
       250. Though the witnesses have also deposed about the taking            G
away of accused Pawan by 3/4 persons on 17.12.2012, yet that plea too
is in contradiction to the an-est memo Ex.PW-60/ A wherein the accused
is stated to have been arrested on I 8. 12.2012 about 1: I 5 p.m. at the
instance of accused Ram Singh (since deceased).
       251. Hence, there exist contradictions in the statements of the
                                                                               H
182             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A     defence witnesses produced on behalf of accused Pawan Gupta (a):
      qua the timing when the accused had left his jhuggi at Ravi Dass Camp
      on the fateful night of 16.12.2012 inasmuch as some of the witnesses
      deposed that accused Pawan left for DOA District Park at 8:00/8:30
      p.m. and some others deposed that they saw him being brought to his
B     jhuggi about 8:30/9:00 p.m.; (b) qua the fact if DW-2 had gone .with
      DW-1 to the park to fetch his son; and (c) qua the fact if accused Pawan
      went to the park with accused Vinay Sharma or not.
             252. Accused Akshay Kumar Singh @Thakur, in his statement
      under Section 313 CrPC, stated that he was not in Delhi on the fateful
      night and that on 15.12.2012, he had left Delhi for his village in Mahabodhi
 C    Express on the ticket of his brother, Abhay, along with his brother's wife
      and nephew. He produced certain witnesses in his defence. DW-11,
      Shri Chavinder, an auto driver from his village, deposed that he had
      brought accused Akshay Kumar Singh@Thakur and his family members
      fromAnugrah Narayan Railway Station, District Aurangabad, Bihar to
D     his native village Karmalahang, P.S. Tandwa, in his own auto on
      16.12.2012 at I 0:00 a.m. It is interesting to note that he does not remember
      about any other passenger/native who shared his auto on that day. DW-
      13, Sh. Raj Mohan Singh, the father-in-law of the accused, deposed that
      when he reached accused Akshay's house, he found his son-in-law being
      implicated in a rape case allegedly committed on 16.12.2012. It probably
 E    shows that DW-13 had gone to meet Akshay Kumar Singh@ Thakur
      only when he had come to know about his implication in the rape case
      and when accused Akshay Kumar Singh @Thakur was on the run. It is
      an admitted fact that the Chowkidar of P.S. Tandwa had met father-in-
      law of the accused on 20.12.2012 and had informed him about the
 F    implication of accused Akshay for the first time. If it was so, then DW-
      13, Shri Raj Mohan, must have visited the house of accused Akshay
      Kumar Singh@ Thakur either on 20.12.2012 or on 21.12.2012.
             253. DW-12, DW-14 and DW-15 are all relatives of accused
      Akshay Kumar Singh @ Thakur and, as observed by both the courts,
 G    they tried to wriggle him out of the messy situation, as is the natural
      instinct of the family members. However, it is to be seen that during the
      evidence of DW-14, wife of accused Akshay Kumar Singh @Thakur,
      she was interrupted from answering by accused Akshay from behind on
      more than one occasion. Similarly, DW-15, the sister-in-law of the
      accused, who had allegedly accompanied the accused to her native village,
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             183
                  [DIPAK MISRA, J.]

mysteriously, was not aware as to why her husband Abhay who was to             A
accompany her on 15.12.2012 to the native village did not accompany
her. She was not aware of the reason which made her husband stay
behind in Delhi. Being the wife, she was expected to know this, at least.
       254. While weighing the plea of 'alibi', the same has to be weighed
against the positive evidence led by the prosecution, i.e., not only the       B
substantive evidence of PW-I and the dying declarations, Ex.PW-27 /A
and Ex.PW-30/D-1, but also against the scientific evidence, viz., the
DNA analysis, finger print analysis and bite marks analysis, the accuracy
of which is scientifically acclaimed. Considering the inconsistent and
contradictory nature of the evidence of'alibi' led by the accused against      C
the positive evidence of the prosecution, including the scientific one, we
hold that the accused have miserably failed to discharge their burden of
absolute certainty qua their plea of' alibi'. The plea taken by them appears
to be an afterthought and rather may be read as an additional
circumstance against them.
       255. In response to the questions put to him in his statement under     D
Section 313 CrPC, accused Vinay had admitted that mobile No.
8285947545, Ex.DWlO/l, belongs to his mother and its SIM was lost
prior to 16.12.2012 and that on 16.12.2012, at 9:30 p.m., his friend Vipin
had taken his phone to the DDA District Park and had returned it the
next morning without SIM card and memory card.                                 E
        256. In response to question No. 221, he stated that about 8:00/
8:30 p.m., he went to see accused Ram Singh and he had a scuffle/
exchange of fist blow and th·en he returned to his jhuggi. Thereafter, he
left for musical party with his sister, mother and others. He did not say if
his father had accompanied them. He also told that about 11:30 p.m., he        F
had returned to his jhuggi.
       257. It is worthy to note that the prosecution had proved the Call
Detail Record, Ex.PW-22/B, of the phone of accused Vinay Sharma,
having SIM No. 8285947545, admittedly in the name of his mother, Smt.
Champa Devi,· but in the possession of accused Vi nay Sharma in the            G
evening of 16.12.2012 and allegedly snatched by one Vipin in the said
music party and returned to him in the morning of 17.12.2012 without
SIM card and memory card. The Call Detail Record Ex.PW-22/B does
show that the accused had been making calls to one particular number,
viz., 8601274533 from 15.12.2012 till 20:19:37 of 17.12.2012. The
                                                                               H
184            SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A     authenticity of the CDR is proved under Section 65-B of the Indian
      Evidence Act. If the accused was not having a SIM card in his phone
      No. 8285947545, then how could he have called 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 p.m.
.B           258. The accused rather said that his SIM and memory card were
      not in his phone when it was returned by his friend Vipin and that the
      phone was not with him at 9:55:21 when it registered a call for 58 seconds
      and when his location was found near TGI Airport, i.e., the road covered
      by the Route Map, Ex.PW-80/H, where the bus, Ex.Pl, was moving on
      that night. Further, if as per accused Vinay Sharma he had no memory
c     card and SIM card in his mobile phone, then the question of making of a
      video clip from his mobile phone by his friend DW- l 0, Shri Ram Babu,
      does not arise. Even his personal search memo Ex.PW-60/D does not
      show that the said mobile phone, when seized, had any memory card in
      it. The intention of the accused appears to be to wriggle himself out of
D     explaining the receipt of call on his mobile at 9:55 p.m. on 16.12.2012.
             259. After referring to the decision in Ram Singh am/ others 1•.
      Col. Ram Singh 101 , the trial Court has held that accused Vinay had
      miserably failed to prove the authenticity of the video clip in terms of the
      above judgment. The accused had failed to show ifDW-10, Ram Babu,
.E    aged 15 years, was ever competent to record the clip and how such
      device was preserved. Admittedly by him, the memory card was not in
      the phone when returned to him by his friend, Vipin. It is also not shown
      in the seizure memo Ex.PW-60/D that the mobile, Ex.DW-1 Oil, was
      seized along with memory card. Thus, it raises a doubt as to how and by
      whom this memory card was later inserted in his phone, Ex.DW-1 Oil,
 F    and how and when the video clip was taken and whether there was any
      tampering, etc. and thus, the compliance of Section 65-B of the Indian
      Evidence Act was mandatory in these circumstances to ensure the purity
      of the evidence and in its absence, it would be difficult to rely upon such
      evidence.
 G          260. Even otherwise, in the alternative, the properties of mobile
      Ex.DW-10/1 show the timing of the video clip as 8: 16 p.m. of 16.12.2012
      which is patently false because as per the defence witnesses, accused
      Vinay Sharma with his family had left Ravi Dass Camp at 8:00/8:30
      p.m. and as per Smt. Champa Devi, DW-5, it takes about one hour on
 H    "' 1985 (Supp.) sec 611
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                          185
                 [DIPAK MISRA, J.]

foot to reach the DDA District Park and, thus, even if we believe their    A
theory; then also accused Vinay Sharma and accused Pawan Gupta @
Kaalu were not in the park at 8: 16 p.m. on 16.12.2012.
       261. Vinay Shanna's mother, Smt. Champa Devi, DW-5, deposed
that her son, accused Vinay Sharma, had gone to meet accused Ram
Singh (since deceased), about 8:00 p.m. on 16.12.2012 and he had a         B
quarrel with Ram Singh, he was beaten and then the accused returned
to his jhuggi. Thereafter, accused Vinay Sharma accompanied her to
DDA District Park, Hauz Khas, Opposite IIT Gate, New Delhi to watch
a musical programme and stayed in the park till late in the night. His
mother does not speak if her husband had also accompanied her to the       C
said DDA District Park but DW-6 deposed that his son had returned
about 8:00 p.m. after the quarrel and then they had gone to the said
DDA District Park. DW-7, Shri Ki shore Kumar Bhat, also deposed that
about 8:00/8:30 p.m., he was in his jhuggi when the father of accused
Vinay Sharma with his children came to his j huggi and they all went to
DDA District Park. He has also stated that a musical programme was         D
organized by St. Thomas Church, Sector-2, R.K. Puram, New Delhi, in
the said DDA District Park, Hauz Khas, on that night.
      262. DW-9, Shri Manu Sharma, deposed that he went with accused
Vinay Sharma to reason with accused Ram Singh (since deceased) but
accused Vi nay Sharma had stated that his brother had accompanied him      E
to meet accused Ram Singh (since deceased). Further, DW-9, Manu
Sharma, stated that he had accompanied accused Vinay Sharma to the
musical event but accused Vinay Sharma did not say so.
       263. Hence, as per the statement ofaccused Vi nay Sharma (under
Section 313 CrPC) and as per the statements of the defence witnesses,      F
accused Vinay Sharma and his family with accused Pawan Gupta @
Kaalu had left Ravi Dass Camp about 8: 15 p.m. to 8:30 p.m. and as per
DW-5, Smt. Champa Devi, it takes about an hour to reach the DDA
District Park, Hauz Khas, on foot, so even according to them, they
allegedly reached the park about 9: 15 p.m. or 9:30 p.m. Thus, from this
angle too, the video clip showing the accused in the park on 16.12.2012    G
about 8: 16 p.m. appears to have been tampered.
      264. PW-83, Shri Angad Singh, the Deputy Director (Horticulture),
DDA, had deposed that no such permission was ever granted by any
authority to organize any such function in the evening of 16.12.2012 in
                                                                           H
186            SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A     the said DDA District Park, Hauz Khas, New Delhi and that no function
      was ever organized in the park on 16.12.2012 by anyone. PW-84, Father
      George Manimala of St. Thomas Church, as also PW-85, Brother R.P.
      Samual, Secretary, Ebenezer Assembly Church, deposed that their
      Church( es) never organized any musical programme/event in the DOA
      District Park, Hauz Khas, in the evening of Sunday, i.e., on 16.12.2012.
B
      Rather, they deposed that on Sundays, there is always a mass prayer in
      the church and there is no question of organizing any programme outside
      the Church premises and that even otherwise, they have their own space/
      lawn within the Church premises where they can hold such type of
      programmes/functions.
c           265. Though Shri Singh, learned counsel for the respective
      appellants, tried to press upon a document, Ex.PW-84/B, a programme
      pamphlet of St. Thomas Church wherein it was mentioned that the Church
      was holding programmes of "Carol Singing" from 10.12.2012 to
      23.12.2012 at 7:00 p.m. at public places, yet in view of the categorical
D     denial by PW-84 and PW-85 that any such programme was organized
      by the Church on 16.12.2012 in the DOA District Park, opposite !IT
      Gate, Hauz Khas, New Delhi, the plea has no substance.
             266. It is settled in law that while raising a plea of ·alibi', the
      burden squarely lies upon the accused person to establish the plea
E     convincingly by adducing cogent evidence. The plea of 'alibi' that
      accused Vinay Sharma and accused Pawan Gupta@Kaalu had attended
      the alleged musical programme in the evening of 16.12.2012 in the DOA
      District Park, Hauz Khas, opposite IIT Gate, New Delhi, has been rightly
      rejected by the trial court which has been given the stamp of approval
      by the High Court.
F
            Criminal conspiracy
             267. The next aspect that we intend to address pe1tains to criminal
      conspiracy. The accused persons before us were charge-sheeted for
      the offence of criminal conspiracy within the meaning of Section l 20A
G     IPC apart from other offences. The trial court found all tlie accused
      guilty of the offence under Section 120B IPC and awarded life
      imprisonment alongwith a fine of Rs. 5,000/- to each of the convicts.
      The High Court has also affirmed their conviction under Section l 20B
      after recording concurrent findings.
            268. Before analysing the present facts with reference to Section
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               187
                  [DIPAK MISRA, J.]

l 20A IPC in order to find out whether the charge of criminal conspiracy A
is proved in respect of each of the accused, it is pertinent to note the
actual nature and purport of Section 120A IPC and allied provisions.
Section l 20A IPC as contained in Chapter V-A defines the offence of
criminal conspiracy. The provision was inserted in the IPC by virtlie of
Criminal Law (Amendment) Act, 1913. Section J20A IPC reads as under:
                                                                              B
       "120A. Definition of criminal conspiracy:- When two or more
       persons agree to do, or cause to be done,- ( l) an illegal act, or (2)
       an act which is not illegal by illegal means, such an agreement is
       designated a criminal conspiracy: Provided that no agreement
       except an agreement to commit an offence shall amount to· a
       criminal conspiracy unless some act besides the agreement is done
                                                                              c
       by one or more parties to such agreement in pursuance thereof.
       Explanation- It is immaterial whether the illegal act is the ultimate
       object of such agreement, or is merely incidental to that object."
       269. Section l 20B being pertinent is reproduced below:                   D
       "120B. Punishment of criminal conspiracy -
       (I) Whoever is a party to a criminal conspiracy to commit an
       offence punishable with death, imprisonment for life or rigorous
       imprisonment for a term of two years or upwards, shall, where no
       express provision is made in this Code for the punishment of such         E
       a conspiracy, be punished in the same manner as ifhe had abetted
       such offence.
       (2) Whoever is a party to a criminal conspiracy other than a
       criminal conspiracy to commit an offence punishable as aforesaid
       shall be punished with imprisonment of either description for a           F
       term not exceeding six months, or with fine or with both."
          270. The underlying purpose for the insertion of Sections l 20A
 and 120B IPC was to make a mere agreement to do an illegal act or an
 act which is not illegal by illegal means punishable under law. The criminal
  thoughts in the mind when take concrete shape of an agreement to do or         G
  cause to be done an illegal act or an act which is not illegal by illegal
 means than even if nothing further is done an agreement is designated
  as a criminal conspiracy. The proviso to Section l 20A engrafts a limitation
. that no agreement except an agreement to commit an offence shall
  amount to a criminal conspiracy unless some act besides the agreement'
                                                                                 H
188               SUPREME COURT REPORTS                         [2017] 6 S.C.R.



A     is done by one or more parties to such agreement in pursuance thereof.
             271. By insertion of Chapter V-A in IPC, the understanding of
      criminal conspiracy in the Indian context has become akin to that in
      England. The illegal act may or may not be done in pursuance of an
      agreement but the mere formation of an agreement is an offence and is
B     punishable. The law relating to conspiracy in England has been put forth
      in Ha/sbury's Laws of England (vide 5th Ed. Vol.25, page 73) as
      under:
               "73. Matters common to all conspiracies. There are statutory
               common law offences of conspiracy. The essence of the offences
c              of both statutory and common law conspiracy is the fact of
               combination by agreement. The agreement may be express or
               implied, or in part express and in part implied. The conspiracy
               arises and the offence is committed as soon as the agreement is
               made; and the offence continues to be committed so long as the
               combination persists, that is until the conspiratorial agreement is
D              terminated by completion of its performance or by abandonment
               or frnstration or however it may be. The actus reus in a conspiracy
               is therefore the agreement for the execution of the unlawful
               conduct, not the execution of it. It is not enough that two or more
               persons pursued the same unlawful object at the same time or in
 E             the same place; it is necessary to show a meeting of minds, a
               consensus to effect an unlawful purpose. It is not, however,
               necessary that each conspirator should have been in communication
               with every other."
            272. The English law on 'conspiracy' has been succinctly explained
 F    by Russell on Crimes ( 12'h Ed. Vol. 1page202) in the following passage:
               "The gist of the offence of conspiracy then lies, not in doing the
               act, or effecting the purpose for which the conspiracy is formed,
               nor in attempting to do them, nor in inciting others to do them, but
               in the forming of the scheme or agreement between the parties.
 G             Agreement is essential. Mere knowledge, or even discussion, of
               the plan is not, per se enough."
             273. Coleridge J. in R. v. Murphy'"1 explained 'conspiracy' in
      the following words:
       0
      ' '   ( 1837) 173 ER 502
H
      MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              189
                    [DIPAK MISRA, J.]

        " ... I am bound to tell you, that although the common design is the      A
        root of the charge, it is not necessary to prove that these two
        parties came together and actually agreed in terms to have this
        common design, and to pursue it by common means, and so to
        carry it into execution. This is not necessary, because in any
        cases of the most clearly established conspiracies there are no
                                                                                  B
        means of proving any such thing. and neither law nor common
        sense requires that it should be proved. If you find that these two
        persons pursued by their acts the same object, often by the same
        means, one performing one part of an act, and the other another
        part of the same act, so as to complete it, with a view to the
        attainment of the object which they were pursuing, you will be at         c
        liberty to draw the conclusion that they have been engaged in a
        conspiracy to effect that object. The question you have to ask
        yourselves is, 'had they this common design, and did they pursue
        it by these common means the design being unlawful?"
      274. Lord Brampton of the House ofLords in Quinn v. Leatham 103             D
had aptly defined conspiracy which definition was engrafted in Sections
120A and 120B IPC. Following was stated by the House of Lords:
         "'A conspiracy consists not merely in the intention of two or more,
         but in the agreement of two or more, to do an unlawful act, or to
         do a lawful act by unlawful means. So long as such a design rests        E
         in intention only, it is not indictable. When two agree to carry it
         into effect, the very plot is an act in itself, and the act of each of
         the parties, promise against promise, actus contra actum, capable
         of being enforced, iflawful; and punishable of for a criminal object,
         or for the use of criminal means'."
                                                                                  F
       275. A pernsal of the above shows that in order to constitute an
offence of criminal conspiracy, two or more persons must agree to do
an illegal act or an act which if not illegal by illegal means. This Court on
several occasions has explained and elaborated the element of conspiracy
as contained in our penal law. In Noor Mohammad Mohd. Yusuf Momin
vs State of Mahara~'/1tra'°4 , this Court has observed:                           G
         "Criminal conspiracy postulates an agreement between two or
         more persons to do, or cause to be done an illegal act or an act
103
      (1901) AC 495
104
      AIR 1971 SC 885
                                                                                  H
190                SUPREME COURT REPORTS                          [2017] 6 S.C.R.


A              which is not illegal, by illegal means. It differs from other offences
               in that mere agreement is made an offence even if no step is
               taken to carry out that agreement. Though there is close association
               of conspiracy with incitement and abetment the substantive offence
               of criminal conspiracy is somewhat wider in amplitude than
               abetment by conspiracy as contemplated by Section 107, I.P.C. A
B
               conspiracy from its very nature is generally hatched in secret. It
               is, therefore, extremely rare that direct evidence in proof of
               conspiracy can be forthcoming from wholly disinterested, quarters
               or from utter strangers. But, like other offences, criminal
               conspiracy can be proved by circumstantial evidence."
c               276. In E.G Barsay v. State of Bombay105 , the following was
      stated:
                " ...... The gist of the offence is an agreement to break the law.
                The parties to such an agreement will be guilty of criminal
                conspiracy, though the illegal act agreed to be done has not been
D               done. So too, it is not an ingredient of the offence that all the
                parties should agree to do a single illegal act. It may comprise the
                commission of a number of acts. Under Section 43 of the Indian
                Penal Code, an act would be illegal if it is an offence or if it is
                prohibited by law. Under the first charge the accused are charged
 E              with having conspired to do three categories of illegal acts, and
                the mere fact that all of them could not be convicted separately in
                respect of each of the offences has no relevancy in considering
                the question whether the offence of conspiracy has been
                committed. They are all guilty of the offence of conspiracy to do
                illegal acts, though for individual offences all of them may not be
 F              liable.
            277. A three-Judge Bench in Yash Pal Mitta/ v. State ofPunjab 106
      had noted the ingredients of the offence of criminal conspiracy and held:
                "I 0. The main object of the criminal conspiracy in the first charge
                is undoubtedly cheating by personation. The other means adopted,
G
                inter alia, are preparation or causing to be prepared sput"ious
                passports; forging or causing to be forged entries and
                endorsements in that connection; and use of or causing to be used
                forged passports as genuine in order to facilitate travel of persons
      10
        '   AIR 1961 SC 1762
H     10
        •   (t 977) 4 sec 540,
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               191
                  [DIPAK MISRA, J.]

       abroad. The final object of the conspiracy in the first charge being      A
       the offence of cheating by personation, as we find, the other
       offences described therein are steps, albeit, offences themselves,
       in aid of the ultimate crime. The charge does not connote plurality
       of objects of the conspiracy. That the appellant himself is not
       charged with the ultimate offence, which is the object of the             B
       criminal conspiracy, is beside the point in a charge under Section
       120-B IPC as long as he is a party to the conspiracy with the end
       in view. Whether the charges will be ultimately established against
       the accused is a completely different matter within the domain of
       the trial court.
       11. The principal object of the criminal conspiracy in the first charge   C
       is thus "cheating bypersonation", and without achieving that goal
       other acts would be of no material use in which any person could
       be necessarily interested. That the appellant himself does not
       personate another person is beside the point when he is alleged to
       be a collaborator of the conspiracy with that object. We have             D
       seen that some persons have been individually and specifically
       charged with cheating by personation under Section 419 IPC.
       They were also charged along with the appellant under Section
       120-B IPC. The object of criminal conspiracy is absolutely clear
       and there is no substance in the~argument that the object is merely
       to cheat simpliciter under Section 417, IPC."                             E
       278. Certainly, entering into an agreement by two or more persons
to do an illegal act or legal act by illegal means is essential to the offence
of criminal conspiracy as has been rightly emphasized by this Court in
Kehar Singh and Ors. v. State (Delhi Administration)m. In the said
case, the court further stressed upon the relevance of circumstantial            F
evidence in proving conspiracy as direct evidence in such cases is almost
impossible to adduce.
        279. In the said case, K. Jagannatha Shetty, J., in his concurring
opinion, has also elaborated the concept of conspiracy to the following
effect:
                                                                                 G
       "274. It will be thus seen that the most important ingredient of the
       offence of conspiracy is the agreement between two or more
       persons to do an illegal act. The illegal act may or may not be
       done in pursuance of agreement, but the very agreement is an
'°' (1988) 3 sec 609
                                                                                 H
192      SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A     offence and is punishable. Reference to Sections 120-A and 120-
      B IPC would make these aspects clear beyond doubt. Entering
      into an agreement by two or more persons to do an illegal act or
      legal act by illegal means is the ve1y quintessence of the offence
      of conspiracy.
      275. Generally, a conspiracy is hatched in secrecy and it may be
B
      difficult to adduce direct evidence of the same. The prosecution
      will often rely on evidence of acts of various parties to infer that
      they were done in reference to their common intention. The
      prosecution will also more often rely upon circumstantial evidence.
      The conspiracy can be undoubtedly proved by such evidence direct
c     or circumstantial. But the court must enquire whether the two
      persons are independently pursuing the same end or they have
      come together in the pursuit of the unlawful object. The former
      does not render them conspirators, but the latter does. It is,
      however, essential that the offence of conspiracy requires some
      kind of physical manifestation of agreement. The express
D
      agreement, however, need not be proved. Nor actual meeting of
      two persons is necessary. Nor it is necessary to prove the actual
      words of communication. The evidence as to transmission of
      thoughts sharing the unlawful design may be sufficient. Gerald
      Orchard of University of Canterbury, New Zealand explains the
 E    limited nature of this proposition:
      "Although it is not in doubt that the offence requires some physical
      manifestation of agreement, it is important to note the limited nature
      of this proposition. The law does not require that the act of
      agreement take any particular form and the fact of agreement
      may be communicated by words or conduct. Thus, it has been
 F
      said that it is unnecessary to prove that the parties 'actually came
      together and agreed in terms' to pursue the unlawful object; there
      need never have been an express verbal agreement, it being
      sufficient that there was 'a tacit understanding between
      conspirators as to what should be done'."
 G    276. I share this opinion, but hasten to add that the relative acts or
      conduct of the parties must be conscientious and clear to mark
       their concurrence as to what should be done. The concunence
      cannot be inferred by a group of irrelevant facts artfully arranged
      so as to give an appearance of coherence. The innocuous, innocent
       or inadvertent events and incidents should not enter the judicial
 H
      MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               193
                    [DIPAK MISRA, J.]

      verdict. We must thus be strictly on our guard."                             A
      280. In Saju v. State of Kera[al08, explaining the concept of
conspiracy, this Court stated the following:
       "7. To prove the charge of criminal conspiracy the prosecution is
       required to establish that two or more persons had agreed to do or
       caused to be done, an illegal act or an act which is not legal, by          B
       illegal means. It is immaterial whether the illegal act is the ultimate
       object of such crime or is merely incidental to that object. To
       attract the applicability of Section 120-B it has to be proved that
       all the accused had the intention and they had agreed to commit
       the crime. There is no doubt that conspiracy is hatched in private
       and in secrecy for which direct evidence would rarely be                    c
       available ...
       I 0. It has thus to be established that the accused charged with
       criminal conspiracy had agreed to pursue a course of conduct
       which he knew was leading to the commission of a crime by one
       or more persons to the agreement, of that offence. Besides the              D
       fact of agreement the necessary mens rea of the crime is also
       required to be established."
      281. In Mir Nagvi Askari v. Central Bureau ofbivestigation 109 ,
this Court reiterated the various facets of'criminal conspiracy' and laid
down as follows:                                                                   E
        "60. Criminal conspiracy, it must be noted in this regard, is an
        independent offence. It is punishable separately. A criminal
        conspiracy must be put to action; for so long as a crime is generated
        in the mind of the accused, the same does not become punishable.
        Thoughts even criminal in character, often involuntary, are not
                                                                                   F
        crimes but when they take a concrete shape of an agreement to
        do or caused to be done an illegal act or an act which is not illegal,
        by illegal means then even ifnothing further is done, the agreement
        would give rise to a criminal conspiracy.
        61. The ingredients of the offence of criminal conspiracy are:
           (i) an agreement between two or more persons;                           G
            (ii) an agreement must relate to doing or causing to be done
        either (a) an illegal act; (b) an act which is not illegal in itself but

'°'(2001) 1sec378
"' (2009) 1s sec 643
                                                                                   H
194            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A           is done by illegal means.
            Condition precedent for holding the accused persons to be guilty
            of a charge of criminal conspiracy must, therefore, be considered
            on the anvil of the fact which must be established by the
            prosecution viz. meeting of minds of two or more persons for
B           doing or causing to be done an illegal act or an act by illegal means.
            62. The courts, however, while drawing an inference from the
            materials brought on record to arrive at a finding as to whether
            the charges of the criminal conspiracy have been proved or not,
            must always bear in mind that a conspiracy is hatched in secrecy
c           and it is difficult, if not impossible, to obtain direct evidence to
            establish the same. The manner and circumstances in which the
            offences have been committed and the accused persons took part
            are relevant. For the said purpose, it is necessary to prove that
            the propounders had expressly agreed to it or caused it to be
            done, and it may also be proved by adduction of circumstantial
D           evidence and/or by necessary implication. (See Mohd. Usman
            Mohammad Hussain Maniyar v. State of Maharashtra"".)
            282. In Pratapblzai Hamirbhai Solanki v. State of Gujrat and
      anotlier 111 , this Court explained the ingredients of'criminal conspiracy'
      asunder:
 E
            "21. At this stage, it is useful to recapitulate the view this Court
            has expressed pertaining to criminal conspiracy. In Damodar v.
            State of Rajasthanm, a two-Judge Bench after referring to the
            decision in Kehar Singh v. State (Delhi Admn.) and State of
            Maharashtra v. Som Nath Thapa 113 , has stated thus:
 F
            "15 . ... The most important ingredient of the offence being the
            agreement between two or more persons to do an illegal act. In a
            case where criminal conspiracy is alleged, the court must inquire
            whether the two persons are independently pursuing the same
            end or they have come together to pursue the unlawful object.
 G          The former does not render them conspirators but the latter does.
            For the offence of conspiracy some kind of physical manifestation
      110
         (1981) 2.SCC 443
      111
         (2013) 1 sec 613
      '" (2004) 12 sec 336
      "' ( 1996) 4 sec 659
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              195
                 [DIPAK MISRA, J.]

      of agreement is required to be established. The express agreement A
      need not be proved. The evidence as to the transmission of thoughts
      sharing the unlawful act is not (sic~) sufficient. A conspiracy is a
      continuing offence which continues to subsist till it is executed or
      rescinded or frustrated by choice of necessity. During its
      subsistence whenever any one of the conspirators does an act or B
      a series of acts, he would be held guilty under Section 120-B of
      the Penal Code, 1860."
      22. In Ram Narayan Popli v. CBI114 while dealing with the
conspiracy the majority opinion laid down that:
      "342. ... The elements ofa criminal conspiracy have been stated          c
      to be: (a) an object to be accomplished, (b) a plan or scheme
      embodying means to accomplish that object, (c) an agreement or
      understanding between two or more of the accused persons
      whereby, they become definitely committed to cooperate for the
      accomplishment of the object by the means embodied in the
      agreement, or by any effectual means, and (d) in the jurisdiction        D
      where the statute required an overt act."
      It has been fmiher opined that:
      "342 . ... The essence of a criminal conspiracy is the unlawful
      combination and ordinarily the offence is complete when the              E
      combination is framed .... no overt act need be done in furtherance
      of the conspiracy, and that the object of the combination need not
      be accomplished, in order to constitute an indictable offence. Law
      making conspiracy a crime is designed to curb immoderate power
      to do mischief which is gained by a combination of the means.
      The encouragement and support which co-conspirators give to              F
      one another rendering enterp1ises possible which, ifleft to individual
      effort, would have been impossible, furnish the ground for visiting
      conspirators and abettors with condign punishment. The conspiracy
      is held to be continued and renewed as to all its members wherever
      and whenever any member of the conspiracy acts in fmiherance             G
      of the common design."
      The two-Judge Bench proceeded to state that:
      "342 . ... For an offence punishable under Section 120-B, the
"' c2003) 3 sec 64 I
                                                                               H
196             SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A           prosecution need not necessarily prove that the perpetrators
            expressly agree to do or cause to be done illegal act; the agreement
            may be proved by necessary implication. Offence of criminal
            conspiracy has its foundation in an agreement to commit an
            offence. A conspiracy consists not merely in the intention of two
            or more, but in the agreement of two or more to do an unlawful
B
            act by unlawful means."
            23. In the said case it has been highlighted that in the case of
            conspiracy there cannot be any direct evidence. The ingredients
            of offence are that there should be an agreement between persons
            who are alleged to conspire and the said agreement should be for
c           doing an illegal act or for doing by illegal means an act which
            itself may not be illegal. Therefore, the essence of criminal
            conspiracy is an agreement to do an illegal act and such an
            agreement can be proved either by direct evidence or by
            circumstantial evidence or by both, and it is a matter of common
D           experience that direct evidence to prove conspiracy is rarely
            available. Therefore, the circumstances proved before, during and
            after the occurrence have to be considered to decide about the
            complicity of the accused."
             283. As already stated, in a criminal conspiracy, meeting of minds
 E    of two or more persons for doing an illegal act is the sine qua non but
      proving this by direct proof is not possible. Hence, conspiracy and its
      objective can be inferred from the surrounding circumstances and the
      conduct of the accused. Moreover, it is also relevant to note that
      ~onspiracy being a continuing offence continues to subsist till it is executed
      or rescinded or frustrated by the choice of necessity. In K. R.
 F    Purushothaman v. State ofKera/a 115 , the Court has made the following
      observations with regard to the formation and rescission of an agreement
      constituting criminal conspiracy:
             "To constitute a conspiracy, meeting of minds of two or more
             persons for doing an illegal act or an act by illegal means is the
 G           first and primary condition and it is not necessary that all the
             conspirators must know each and every detail of the conspiracy.
             Neither is it necessary that every one of the conspirators takes
             active part in the commission of each and every conspiratorial
             acts. The agreement amongst the tonspirators can be inferred by
      '" (2oos) 12 sec 631
 H
         MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               197
                       [DlPAK MISRA, J.]

            necessary implication. In most of the cases, the conspiracies are         A
            proved by the circumstantial evidence, as the conspiracy is seldom
            an open affair. The existence of conspiracy and its objects are
            usually deduced from the circumstances of the case and the
            conduct of the accused involved in the conspiracy. While
            appreciating the evidence of the conspiracy, it is incumbent on the
                                                                                      B
            court to keep in mind the well-known rule governing circumstantial
            evidence viz. each and every incriminating circumstance must be
            clearly established by reliable evidence and the circumstances
            proved must form a chain of events from which the only in-esistible
            conclusion about the guilt of the accused can be safely drawn,
            and no other hypothesis against the guilt is possible. Criminal           c
            conspiracy is an independent offence in the Penal Code. The
            unlawful agreement is sine qua non for constituting offence under
            the Penal Code and not an accomplishment. Conspiracy consists
            of the scheme or adjustment between two or more persons which
            may be express or implied or partly express and partly implied.
                                                                                      D
            Mere knowledge, even discussion, of the plan would not per se
            constitute conspiracy. The offence of conspiracy shall continue
            till the termination of agreement."
       284. After referring to a catena of judicial pronouncements and
authorities, a three-Judge Bench of this Court in State through
Superintendent ofPolice, CBI/SIT v. Nalini and others,, 6 summarised                  E
the principles relating to criminal conspiracy as under:
            "Some of the broad principles governing the law of conspiracy
            may be summarized though, as the name implies, a summary cannot
            be exhaustive of the principles.
                                                                                      F
            "!. Under Section l 20A IPC offence of criminal conspiracy is
            committed when two or more persons agree to do or cause to be
            done an illegal act or legal act by illegal means. When it is legal
            act by illegal means overt act is necessary. Offence of criminal
            conspiracy is exception to the general law where intent alone
            does not constitute crime. It is intention to comrhit crime and joining   G
            hands with persons having the same intention. Not only the intention
            but there has to be agreement to can-y out the object of the intention,
            which is an offence. The question for consideration in a case is
            did all the accused had the intention and did they agree that the
11
     '   (l 999) s sec 253                                                            H
198      SUPREME COURT REPORTS                             [2017] 6 S.C.R.



A     crime be committed. It would not be enough for the offence of
      conspiracy when some of the accused merely entertained a wish,
      howsoever, horrendous it may be, that offence be committed.
      2. Acts subsequent to the achieving of object of conspiracy may
      tend to prove that a pai1icular accused was party to the conspiracy.
B     Once the object of conspiracy has been achieved, any subsequent
      act, which may be unlawful, would not make the accused a part
      of the conspiracy like giving shelter to an absconder.
      3. Conspiracy is hatched in private or in secrecy. It is rarely possible
      to establish a conspiracy by direct evidence. Usually, both the
c     existence of the conspiracy and its objects have to be inferred
      from the circumstances and the conduct of the accused.
      4. Conspirators may, for example, be enrolled in a chain-Aenrcilling
      B, B enrolling C, and so on; and all will be members of a single
      conspiracy if they so intend and agree, even though each member
D     knows only the person who enrolled him and the person whom he
      enrolls. There may be a kind of umbrella-spoke enrollment, where
      a single person at the center doing the enrolling and all the other
      members being unknown to each other, though they know that
      there are to be other members. These are theories and in practice
      it may be difficult to tell whether the conspiracy in a particular
E     case falls into which category. Tt may, however, even overlap.
      But then there has to be present mutual interest. Persons may be
      members of single conspiracy even though each is ignorant of the
      identity of many others who may have diverse role to play. It is
      not a part of the crime of conspiracy that all the conspirators need
 F    to agree to play the same or an active role.
      5. When two or more persons agree to commit a crime of
      conspiracy, then regardless of making or considering any plans
      for its commission, and despite the fact that no step is taken by
      any such person to carry out their common purpose, a crime is
G     committed by each and every one who joins in the agreement.
      There has thus to be two conspirators and there. may be more
      than that. To prove the charge of conspiracy it is not necessa1y
      that intended crime was committed or not. If committed it may
      further help prosecution to prove the charge of conspiracy.
      6. It is not necessary that all conspirators should agree to the
H
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            199
               [DIPAK MISRA, J.]

 common purpose at the same time. They may join with other                A
 conspirators at any time before the consummation of the intended
 objective, and all are equally responsible. What .part each
 conspirator is to play may not be known to eve1yone or the fact
 as to when a conspirator joined the conspiracy and when he left.
 7. A charge of conspiracy may prejudice the accused because it           B
 is forced them into a joint trial and the court may consider the
 entire mass of evidence against every accused. Prosecution has
 to produce evidence not only to show that each of the accused
 has knowledge of object of conspiracy but also of the agreement.
 In the charge of conspiracy court has to guard itself against the
 danger of unfairness to the accused. Introduction of evidence
                                                                          c
 against some may result in the conviction of all, which is to be
 avoided. By means of evidence in conspiracy, which is otherwise
 inadmissible in the trial of any other substantive offence prosecution
 tries to implicate the accused not only in the conspiracy itself but
 also in the substantive crime of the alleged conspirators. There is      D
 always difficulty in tracing the precise contribution of each member
 of the conspiracy but then there has to be cogent and convincing
 evidence against each one of the accused charged with the offence
 of conspiracy. As observed by Judge Learned Hand that "this
 distinction is important today when many prosecutors seek to
                                                                          E
 sweep within the dragnet of conspiracy all those who have been
 associated in any degree whatever with the main offenders".
  8. As stated above it is the unlawful agreement and not its
  accomplishment, which is the gist or essence of the crime of
  conspiracy. Offence of criminal conspiracy is complete even
  though there is no agreement as to the means by which the purpose       F
  is to be accomplished. It is the unlawful agreement, which is the
  graham of the crime of conspiracy. The unlawful agreement which
  amounts to a conspiracy need not be formal or express, but may
  be inherent in and inferred from the circumstances, especially
  declarations, acts, and conduct of the conspirators. The agreement      G
  need not be entered into by all the parties to it at the same time,
  but may be reached by successive actions evidencing their joining
  of the conspiracy.
  9. It has been said that a criminal conspiracy is a partnership in
  crime, and that there is in each conspiracy a joint or mutual agency    H
200            SUPREME COURT REPORTS                            [2017) 6 S.C.R.



A           for the prosecution of a common plan. Thus, if two or more persons
            enter into a conspiracy, any act done by any of them pursuant to
            the agreement is in contemplation of law, the act of each of them
            and they are jointly responsible therefore. This means that
            everything said, written or done by any of the conspirators in
            execution or furtherance of the common purpose is deemed to
B
            have been said, done, or written by each of them. And this joint
            responsibility extends not only to what is done by any of the
            conspirators pursuant to the original agreement but also to collateral
            acts incident to and growing out of the· original purpose. A
            conspirator is not responsible, however, for acts done by a co-
c           conspirator after termination of the conspiracy. The joinder of a
            conspiracy by a new member does not create a new conspiracy
            nor does it change the status of the other conspirators, and the
            mere fact that conspirators individually or in groups perform
            different tasks to a common end does not split up a conspiracy
            into several different conspiracies.
D
            10. A man may join a conspiracy by word or by deed. However,
            criminal responsibility for a conspiracy requires more than a merely
            passive attitude towards an existing conspiracy. One who commits
            an overt act with knowledge of the conspiracy is guilty. And one
            who tacitly consents to the object of a conspiracy and goes along
 E          with other conspirators, actually standing by while the others put
            the conspiracy into effect, is guilty though he intends to take no
            active part in the crime."
             285. The rationale of conspiracy is that the required objective
      manifestation of disposition of criminality is provided by the act of
 F    agreement. Conspiracy is a clandestine activity. Persons generally do
      not form illegal covenants openly. In the interest of security, a person
      may carry out his part of a conspiracy without even being informed of
      the identity of his co-conspirators. An agreement of this kind can rarely
      be shown by direct proof; it must be inferred from the circumstantial
G     evidence of co-operation between the accused. What people do is, of
      course, evidence of what lies in their minds. To convict a person of
      conspiracy, the prosecution must show that he agreed with others that
      they would together accomplish the unlawful object of the conspiracy.
      [See: Firozuddin Basheeruddin and others v. State of Kerala 11 7J
      "' (2001) 1 sec 596
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            201
                   [DIPAK MISRA, J.]

       286. In Suresh Chandra Bahri v. State of Bihar 118 , this Court        A
reiterated that the essential ingredient of criminal conspiracy is the
agreement to commit an offence. After referring to the judgments in
Noor Mohd. Mohd. Yusuf Momi (supra) and V.C. Shukla v. State
(Delhi Admn.) 119 , it was held in S.C. Bahri (supra) as under:
       "[A] cursory look to the provisions contained in Section 120-A         B
       reveals that a criminal conspiracy envisages an agreement
       between two or more persons to commit an illegal act or an act
       which byitselfmaynotbe illegal but the same is done or executed
       by illegal means. Thus the essential ingredient of the offence of
       criminal conspiracy is the agreement to commit an offence. In a
       case where the agreement is for accomplishment of an act which
                                                                              c
       by itself constitutes an offence, then in that event no overt act is
       necessary to be proved by the prosecution because in such a
       fact-situation criminal conspiracy is established by proving such
       an agreement. In other words, where the conspiracy alleged is
       with regard to commission of a serious crime of the nature as          D
       contemplated in Section 120-B read with the proviso to sub-section
       (2) of Section 120-A IPC, then in that event mere proof of an
       agreement between the accused for commission of such a crime
       alone is enough to bring about a conviction under Section 120-B
       and the proof of any overt act by the accused or by any one of
                                                                              E
       them would not be necessary. The provisions in such a situation
       do not require that each and every person who is a party to the
       conspiracy must do some overt act towards the fulfilment of the
       object of conspiracy, the essential ingredient being an agreement
        between the conspirators to commit the crime and if these
       requirements and ingredients are established the act would fall        F
       within the trapping of the provisions contained in Section 120-B
        since from its very nature a conspiracy must be conceived and
        hatched in complete secrecy, because otherwise the whole purpose
        may be frustrated and it is common experience and goes without
        saying that only in very rare cases one may come across direct
        evidence of a criminal conspiracy to commit any crime and in          G
        most of the cases it is only the circumstantial evidence which is
        available from which an inference giving rise to the conclusion of

 "' 1995 Supp (I) sec 80
    • t 980 Suppl. sec 249
 11

                                                                              H
202             SUPREME COURT REPORTS                             [2017] 6 S.C.R.



A            an agreement between two or more persons to commit an offence
             may be legitimately drawn."
            287. From the law discussed above, it becomes clear that the
      prosecution must adduce evidence to prove that:
             (i) the accused agreed to do or caused to be done an act;
B
             (ii) such an act was illegal or was to be done by illegal means
             within the meaning ofIPC;
             (iii) irrespective of whether some overt act was done by one of
             the accused in pursuance of the agreement.
c            288. In the case at hand, the prosecution has examined PW-82 to
      prove the charges of conspiracy and for further identification of all the
      accused persons in the bus on the date of the incident. He has also been
      presented to support the prosecution case that immediately preceding
      the fateful incident, all the accused persons had, in execution of their
      conspiracy, been robbing/meny-making with passengers on the road.
D
             289. The defence has controverted the testimony of PW-82 on
      several aspects which has already been discussed before. It has been
      alleged that Ram Adhar, PW-82, is a planted witness who was brought
      in by the investigators to fill the lacunae, if any, in their investigation and
      to further make a strong case against the accused persons. The defence
E
      has further denied the presence of accused Mukesh at the scene of the
      crime. Accused Vinay and accused Akshay have also raised the plea of
      alibi which has been dealt with separately by us. Regardless of the fact
      that we have found the testimony of PW-82 to be creditworthy, even if
      the same is not taken into account for the purpose of establishing that
F     the accused acted in concert with each other to commit heinous offences
      against the victim, the testimony of PW-I coupled with the dying
      declarations of the prosecutrix irrefragably establish the charge under
      Section l 20B against all the accused persons.
            290. First of all, in order to prove the presence of all the accused
G     on board the bus where the entire incident took place, the prosecution
      has relied upon the testimony of PW-I, PW-82, PW-16 and, most
      importantly, the dying declarations of the prosecutrix.
             291. As per the records, PW-82 has testified to the effect that on
      the date of the incident, about 8:30 p.m., he had boarded the concerned
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             203
                  [DIPAK MISRA, J.]

bus from Munirka Bus Stand, New Delhi, on noticing that the conductor         A
of the bus sought commuters for Khanpur. However, he was later
informed that he would be dropped at Nehru Place instead ofKhanpur.
When PW-82 tried to get down the bus, he was wrongfully confined,
attacked by the persons inside the bus who robbed him of his belongings,
viz., Rs. I 500/- in cash and a mobile phone, and he was then thrown out      B
of the moving bus. During the trial, PW-82 has identified all the four
accused persons, viz., Akshay Kumar Singh @ Thakur, Pawan Gupta,
Vinay Sharma and accused Mukesh, present in the concerned bus at the
time of the incident. PW-82 hadfodged the complaint on 18.12.2012 on
the basis of which FIR No. 414 of2012 was registered at P.S. Vasant
Vihar, New Delhi under Sections 365, 397, 342 IPC.                            C
      292. Learned senior counsel for the State, Mr. Luthra, has
submitted that PW-82 had been examined to establish the conduct of the
accused on the aspect of conspiracy and also to establish the identity of
the accused persons before the trial court. It was further submitted that
PW-82, Ram Adhar, identified all the four accused in the court, namely, D
Akshay Kumar Singh @ Thakur, Pawan Gupta, Vinay Sharma and
Mukesh besides two .others present inside the bus and also identified
Mukesh as driving the bus and stated that others took him inside the bus
and robbed him and attacked him.
       293. The contention of the appellants is that the testimony of PW-     E
82 is not bereft of doubt for several reasons, namely, a) delay in lodging
FIR, b) non-examination of Sanjiv Bhai as a witness, c) he has stated
that he heard the person with the burnt hand say "Mukesh, tez chalao",
d) apart from that, he does not mention that he heard the names of any
of the accused, and e) he had not visited a doctor/hospital despite stating
that he had injuries on his face which prevented him from registering an      F
FIR.
       294. Regarding the alleged incident of attack on PW-82 by the
accused, it was submitted that the said case against the accused ended
in conviction and the same is pending in appeal. In respect of the
credibility of the testimony ofPW-82 as to the commission of the offence,     G
we are not inclined to take into account the evidence of PW-82 except
on one limited aspect, that is, the presence of the accused in the bus,
Ex.PI, on the night of 16.12.2012 since PW-82's presence in the bus on
the night of 16.12.2012 is admitted. In his statement under Section 313
Cr PC, Mukesh-A2 admitted that PW-82 had boarded the offending bus            H
204            SUPREME COURT REPORTS                          [2017] 6 S.C.R.


A     prior to the boarding of the bus by the informant and the victim. The
      relevant portion of his statement is extracted as under:
            "Q.211: It is in evidence against you that PW82 Shri Ram Adhar
            deposed that on 16.12.2012 after finishing his carpenter's work
            at a shop at Munirka till about 8:30 PM, he boarded a white colour
B           bus from sabji Market across the road of my work place. The
            helper of the bus was calling the passenger by saying "khanpur-
            khanpur". As PW82 boarded the bus, one of the occupants told
            him that the bus is going to Nehru Place. As PW82 tried to get
            down, one person whose one limb was having bum injuries, gave
            beating to him. The other person pulled him inside the bus towards
c           the back side and they all gave beating to him and removed his
            belongings i.e. one mobile with two sims and Rs.1500/-. The sim
            card numbers were 9999095739 and 9971612554. What do you
            have to say?
            Ans: It is correct that PW82 Shri Ram Adhar had boarded the
D           bus Ex.Pl on 16.12.2012 prior to the boarding of the bus Ex.Pl
            by the complainant and the victim. He boarded the bus from
            Sabji Mandi at Sector-4 on the main road. He went on the back
            side of the bus but after sometime he was made to de board the
            bus at TIT flyover by accused Akshay as he had no money to pay
 E          the fare. At that time accused Akshay, accused Ram Singh, since
            deceased, accused Vinay accused Pawan along with JCL were
            present in the bus and I was driving it."
                                                           [underlining added]
            The presence of PW-82 in Ex.Pl bus prior to the boarding of the
 F    bus by the informant, PW- I, and the victim and the presence of all the
      accused in the bus is, thus, established by the prosecution.
              295. The evidence of PW-81, Dinesh Yadav, the owner of the
      offending bus, indicates accused Ram Singh, A-1, (since deceased) as
      the driver of the bus and Akshay Kumar as the cleaner of the bus which
 G    is further shown in the attendance register of the bus exhibited as Ex.PW-
      80/K. The evidence of PW-81, Dinesh Yadav, is c01Toborated by the
      entries made in the attendance register where in the driver's page at SI.
      No. 5, the name of accused Ram Singh (since deceased) is written
      against bus No. 0149 and at SI.No. 15, the name of Akshay is written as
 H    helper against bus No. 0149. As stated earlier, the bus bearing
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                         205
                   [DIPAK MISRA, J.)

Registration No;DL-lPC-0149 was one of the buses hired byBirla Vidya A
Niketan School, Pushp Vihar, New Delhi and the fact that 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 said witness has testified that
one Dinesh Yadav, PW-81, had provided seven buses to the school B
including bus bearing No. DL-1PC-0149 for the purpose offerrying the
children of the school. The driver of this bus was one Ram Singh, son of
Mange Lal. The documents relating to the bus including the photocopies
of the agreement between the school and the bus contractor, copy of the
driving licence of Ram Singh, A-1, and the letter of termination dated
18.12.2012 with "Yadav Travels" were furnished to the Investigating C
Officer, SI Pratibha Sharma, vide his letter dated 25.12.2012, exhibited
as Ex.PW-16/A(colly.). From the evidence of PW-16, Rajeev Jakhmola,
it stands proved that the bus in question was routinely driven by Ram
Singh (since deceased). The statement of PW-16, Rajeev Jakhmola, is
corroborated by the testimony of PW-81, Dinesh Yadav. Significantly, D
PW-81, Dinesh Yadav, further testified:
      "Thi~ 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.''
                                                                           E
       296. The testimony of PW-13, Brijesh Gupta, who was an auto
driver and also resident of jhuggi at Ravi Dass Camp from where the
offending bus was seized is also relevant to prove the presence of the
accused in the bus. He stated in his evidence that A-1, Ram Singh (since
deceased), is the brother of A-2, Mukesh, and that both resided in the
jhuggi at Ravi Dass camp and that Ram Singh used to drive the said bus     F
and park it in the night near hisjhuggi. PW-13, in his evidence, deposed
that on the night of 16.12.2012, about 11 :30 p.m., when he returned to
his jhuggi after plying his auto, he saw accused Mukesh, A-2, taking
water in some can inside a, white colour bus and washing it from inside.
He also noticed some clothes and pieces of curtains being burnt in the     G
fire.
      297. Jn his questioning under Section 313 CrPC, Mukesh, A-2,
has admitted that he and A-1, Ram Singh (since deceased), are brothers.
He has also admitted that on the night of 16.12.2012, he was driving the
bus and that accused Pawan and Vinay Sharma were seated on the             H
206            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A     backside of the driver's seat, whereas Akshay and Ram Singh were
      sitting in the driver's cabin. The relevant portion of his statement under
      Section 313 CrPC reads as under:
            "Q2. It is in evidence against you that PW! further deposed that
            they inquired from 4-5 auto rickshaw-walas to take them to
B           Dwarka, but they all refused. At about 9 PM they reached at
            Munirka bus stand and found a white colour bus on which "Yadav"
            was written. A boy in the bus was calling for commuters for
            Dwarka/Palam Mod. PW! noticed yellow and green line/strips
            on the bus and that the entry gate of the bus was ahead of its
            front tyre, as in luxury buses and that the front tyre was not having
 c          a wheel cover. What do you have to say?
            Ans: I was driving the bus while my brother Ram Singh, since
            deceased and JCL, Raju was calling for passengers by saying
            "Palam/Dwarka Mod".

D           Q4: It is in evidence against you that during the course of his
            deposition, complainant, PW-! has identified you accused Mukesh
            to be the person who was sitting on the driver's seat and was
            driving the bus; PW! further identified your co-accused Ram Singh
            (since deceased), and Akshay Kumar to be the person who were
            sitting in the driver's cabin alongwith the driver; PW-I had also
 E          identified your co-accused Pawan Kumar who was sitting in front
            of him in two seats row of the bus; PW-! had also identified your
            co-accused Vinay Shanna to be the person who was sitting in
            three seats row just behind the Driver's cabin, when PW I entered
            the bus; PW! has also deposed before the court that the conductor
 F          who was calling him and his friend/prosecutrix to board the bus
            Ex.PI was not among the accused person being tried in this court.
             Ans: Accused Pawan and accused Vinay Sharma were sitting on
             my back side of the driver's seat and whereas accused Akshay
             was sitting in the driver's cabin while my brother Ram Singh,
 G           since deceased was asking for passengers.
             Q5: It is in evidence against you that after entering the bus PW!
             noticed that seats cover of the bus were of red colour and it had
             yellow colour curtains and the windows of the bus had black film
             on it. The windows were at quite a height as in luxury buses. As
             PW I sat down inside the bus, he noticed that two of you accused
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             207
                  [DIPAK MISRA, J.]

      were sitting in the driver's cabin were coming and returning to         A
      the driver's cabin. PWl paid an amount ofRs.20/- as bus fare to
      the conductor i.e. Rs. l 0/- per head. What do you have to say?
      Ans: It is correct that the windows of the bus Ex.Pl were having
      black film on it but I cannot say if the seats of the bus were
      having red covers or that the curtains were of yellow colour as         B
      my brother Ram Singh, since deceased, only used to drive the bus
      daily and that on that day since he was drunk heavily so I had
      gone to Munirka to bring him to my house and hence, I was driving
      the bus on that day. I had gone to Munirka with my nephew on
      my cycle to fetch Ram Singh since deceased and that the other           C
      boys alongwith Ram Singh had already taken the bus from
      R.K.Puram. I was called by Ram Singh on phone to come at
      Munirka."
      298. A-3, Akshay@Thakur, in his statement under Section 313
CrPC, has admitted that he was working with A-1, Ram Singh (since
deceased), in the offending bus, Ex.P 1, as a helper. He has also admitted    D
therein that he had joined A-1, Ram Singh (since deceased), on
03.11.2012. The relevant portion of his statement under Section 313
CrPC is extracted hereunder:
      "Q.210: It is in evidence against you that PW8 l Shii Dinesh Yadav
      is the owner of the bus Ex.Pl and that he has employed accused          E
      Ram Singh, since deceased, as the driver of the bus in the month
      of December, 2012 and you accused Akshay was working :;is
      helper in the said bus. Further, h~ deposed that on 25.12.2012 he
      had handed over the documents relating to the bus to the
      investigating officer, seized vide memo Ex.PW80/K. The copy             F
      of the challan and copy of the notice are collectively Ex.P-8 l/I
      and the registeron which "YadavTravels 2012" is written is Ex.P-
      81/2. He also identified the driving license Ex.P-74/1 of his driver,
      accused Ram Singh, since deceased. He further deposed that
      the bus Ex.Pl used to ply in Birla Vidya Niketan as well as chartered
      bus and used to take the office-goers from Delhi and drop them          G
      at Naida every morning and evening. What do you have to say?
      Ans: It is correct that I was working as a helper in the bus Ex.PI.
      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
                                                                              H
208             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A           and I left for my village at 11 :30 am and T went to New Delhi
            Railway Station and I left Delhi in the train at about 2:30 P.M."
             299. DW-5, Smt. Champa Devi, is the mother ofVinay Sharma,
      A-4. She has stated in her evidence that her son, Vinay Sharma, A-4,
      who returned home at 4:00 p.m. on 16.12.2012, went in search of A-l
B     on hearing about the misbehaviour of A-1, Ram Singh (since deceased),
      with his sister and was able to trace him by 8:00 p.m. and that her son
      Vinay Sharma, A-4, had quarreled with Ram Singh, A-1. She has deposed
      in her evidence that her son Vinay Sharma returned bleeding from his
      mouth and after some time they had left to the DDA District Park to
      attend a musical programme where they had met A-5, Pawan alias Kaalu,
c     alongwith two others.
             300. The prosecution has, thus, established that the accused were
      associated with each other. The criminal acts done in furtherance of
      conspiracy is established by the sequence of events and the conduct of
      the accused. An important facet of the law of conspiracy is that apart
D     from it being a distinct offence, all conspirators are liable for the acts of
      each other of the crime or crimes which have been committed as a
      result of the conspiracy. Section I 0 of the Indian Evidence Act which
      reads as under is relevant in this context:
             "I 0. Things said or done by conspirator in reference to common
 E           design.- Where there is reasonable ground to believe that two or
             more persons have conspired together to commit an offence or
             an actionable wrong, anything said, done or written by any one of
             such persons in reference to their common intention, after the
             time when such intention was first entertained by any one of them,
 F           is a relevant fact as against each of the persons believed to so
             conspiring, as well for the purpose of proving the existence of the
             conspiracy as for the purpose of showing that any such person
             was a party to it."
             301. Section I 0 of the Indian Evidence Act begins with the phrase
 G    "where there is reasonable ground to believe that two or more persons
      have conspired together to commit an offence" which implies that if
      prima facie evidence of the existence of a conspiracy is given and
      accepted, the evidence of acts and statements made by any one of the
      conspirators in furtherance of the common intention is admissible against
      all. In the facts of the present case, the prima facie evidence of the
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            209
                  [DIPAK MISRA, J.]

existence of conspiracy is well established.                                  A
       302. The infonnant, PW-I, has also deposed as to the clarity of
the entire incident. He has identified all the accused to be present in the
bus when he had boarded the same with the prosecutrix. He has
maintained that he saw three persons sitting in the driver's cabin who
were moving in and out of the cabin. Both the informant and the               B
prosecutrix had sensed some sort of hostility and strangeness in the
behaviour of the accused. But, as they had paid for the ticket, they
quietly kept sitting. Soon they found that the lights in the bus were put
off and the accused Ram Singh (since deceased) and accused Akshay
came near them to ask where PW! was heading with the prosecutrix at
that odd time of the evening. PW-I, on objecting to such a query, was
                                                                              c
beaten and pinned down by the accused. Thereafter, all the accused,
one after the other, committed rape and unnatural sex on the prosecutrix
using iron rods which has been explicitly described by the prosecutrix
herself in her dying declarations recorded by PW-27, Sub-Divisional
Magistrate, and PW-30, Metropolitan Magistrate. The relevant portion          D
of the second dying declaration of the prosecutrix as contained in Ex.PW-
27I A is as under:
      "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         E
       ki batiya bujha di aur mere dost ke paas akar galiyan dene !age
       aur mame !age. Usko 3-4 logo ne pakad liya aur mujh ko baki log
       mujhe bus ke peechey hisey mein le gaye aur mere kapde faad
       di ye aur bari-2 serape kiya. Lohey ki rod se muj he mere pa et par
       maara aur poore shareer par danto se kata. Is se pehle mere dost       F
       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 lo he ki rod dal kar     G
       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."
                                                                              H
210            SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A        303. The chain of events described by the prosecutrix in her dying
  declarations coupled with the testimonies of the other witnesses clearly
  establish that as soon as the informant and the prosecutrix boarded the
  bus, the accused persons formed an agreement to commit heinous
  offences against the victim. Forcefully having sexual intercourse with
  the prosecutrix, one after the other, inserting iron rod in her private parts,
B
  dragging her by her hair and then throwing her out of the bus all establish
  the common intent of the accused to rape and murder the prosecutrix.
  The trial court has rightly recorded that the prosecutrix's alimentary
  canal from the level of duodenum upto 5 cm of anal sphincter was
  compietely damaged. It was beyond repair. Causing of damage to the
C jejunum is indicative of the fact that the rod was inserted through the
  vagina and/or anus upto the level of jejunum. Further, septicemia was
  the direct result of multiple internal injuries. Moreover, the prosecutrix
  has also maintained in her dying declaration that the accused persons
  were exhorting that the prosecutrix had died and she b. thrown out of
  the bus. Ultimately, both the prosecutrix as well as the infonnant were
D
  thrown out of the moving bus through the front door by the accused
  after having failed to throw them through the rear door. The conduct of
  the accused in committing heinous offences with the prosecutrix in conceit
  with each other and thereafter throwing her out of the bus in an
  unconscious state alongwith PW-I unequivocaly bring home the charge
E under Section 120B in case of each of them. The criminal acts done in
  furtherance of the conspiracy is evident from the acts and also the words
  uttered during the commission of the offence. Therefore, we do not
  have the slightest hesitation in holding that the trial court and the High
  Court have correctly considered the entire case on the touchstone of
  well-recognised principles for arriving at the conclusion of criminal
F
  conspiracy. The prosecution has been able to unfurl the case relating to
  criminal conspiracy by placing the materials on record and connecting
  the chain of circumstances. The relevant evidence on record lead to a
  singular conclusion that the accused persons are liable for criminal
  conspiracy and their confessions to counter the same deserve to be
G repelled.
            Summary of conclusions:
              304. From the critical analysis, keen appreciation of the evidence
      and studied scrntiny of the oral evidence and other materials, we arrive
      at the following conclusions:
 H
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                          21 l
              [DIPAK MISRA, J.]

 i. The evidence of PW-I is unimpeachable and it deserves to be         A
     relied upon.
 ii. The accused persons alongwith the juvenile in conflict with law
      were present in the bus when the prosecutrix and her friend
      got into the bus.
 iii. There is no reason or justification to disregard the CCTV         B
      footage, for the same has been duly proved and it clearly
      establishes the description and movement of the bus.
 iv. The arrest of the accused persons from various places at
     different times has been clearly proven by the prosecution.
                                                                        c
 v. The personal search, recoveries and the disclosure leading to
     recovery are in consonance with law and the assail of the
     same on the counts of custodial confession made under torture ·
     and other pleas are highly specious pleas and they do not
     remotely create a dent in the said aspects.
                                                                        D
 vi. The contention raised by the accused persons that the recoveries
     on the basis of disclosure were a gross manipulation by the
     investigating agency and deserve to be thrown overboard does
     not merit acceptance.
 vii. The relationship between the parties having been clearly
                                                                        E
     established, their arrest gains more credibility and the
     involvement of each accused gains credence.
 viii. The dying declarations, three in number, do withstand close
     scrntiny and they are consistent with each other.
 ix. The stand that the deceased could not have given any dying         F
     declaration because of her health condition has to be repelled
     because the witnesses who have stated about the dying
     declarations have stood embedded to their version and nothing
     has been brought on record to discredit the same. That apart,
     the dying declaration by gestures has been proved beyond
                                                                        G
     reasonable doubt.
  x. There is no justification in any manner whatsoever to think that
      PW-I and the deceased would falsely implicate the accused-
      appellants and leave the real culprits.

                                                                        H
.212            SUPREME COURT REPORTS                          [2017] 6 S.C.R.



 A           xi. The dying declarations made by the deceased have received
                 corroboration from the oral and documentary evidence and
                 also enormously from the medical evidence.
             xii. The DNA profiling, which has been done after taking due
                 care for quality, proves to the hilt the presence of the accused
 B               persons in the bus and their involvement in the crime. The
                 submission that certain samples were later on taken from the
                 accused and planted on the deceased to prove the DNA aspect
                 is noted only to be rejected because it has no legs to stand
                 upon.

 c           xiii. The argument that the transfusion of blood has the potentiality
                 to give rise to two categories of DNA or two DNAs is farthest
                 from trnth and there is no evidence on that score. On the
                 contrary, the evidence in exclusivity points to the matching of
                 the DNA of the deceased with that of the accused on many
                 aspects. The evidence brought on record with regard to finger
 D               prints is absolutely impeccable and the trial court and the High
                 Court have correctly placed reliance on the same and we, in
                 our analysis, have found that there is no reason to disbelieve
                 the same.
             xiv. The scientific evidence relating to odontology shows how far
 E               the accused have proceeded and where the bites have been
                 found and definitely, it is extremely impossible to accept the
                 submission that it has been a manipulation by the investigating
                 agency to rope in the accused persons.
             xv. The evidence brought on record as regards criminal conspiracy
 F               stands established.
                Tn view of the aforesaid summation, the inevitable conclusion is
       that the prosecution has proved the charges leveled against the appellants
       beyond reasonable doubt.
            Sentencing procedure and co111plia11ce of Section 235(2)
 G
       CrPC:
              305. Now we shall proceed to sentencing. A submission was
       raised that provisions of Section 235(2) CrPC was not complied with.
       The said provision reads as follows:

 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             213
                 [DIPAK MISRA, J.]

      "235. Judgment of acquittal or conviction                               A
      (I) .....
      (2) Tfthe accused is convicted, the Judge shall, unless he proceeds
      in accordance with the provisions of Section 360, hear the accused
      on the question of sentence, and then pass sentence on him
      according to law."                                                      B

     306. While discussing Section 235(2) CrPC, this Court, in Santa
Singh v. State of P1111jab 120 , observed as follows:
      "4 ..... the hearing contemplated by Section 235(2) is not confined
      merely to hearing oral submissions, but it is also intended to give     C
      an opportunity to the prosecution and the accused to place before
      the court facts and material relating to various factors bearing on
      the question of sentence and if they are contested by either side,
      then to produce evidence for the purpose of establishing the same."
      307. A three-Judge Bench in Dagdu and others v. State of D
Malzaraslztra 121 considered the object and scope of Section 235(2) Cr PC
and held that:
      "79. But we are unable to read the judgment in Santa Singh as
      laying down that the failure on the part of the Court, which convicts
      an accused, to hear him on the question of sentence must
                                                                              E
      necessarily entail a remand to that Court in order to afford to the
      accused an oppo1tunity to be heard on the question us sentence.
      The Court, on convicting an accused, must unquestionably hear
      him on the qustion of sentence. But if, for any reason, it omits to
      do so and the accused makes a grievance of it in the higher court,
      it would be open to that Court to remedy the breach by giving a         F
      hearing to the accused on the question of sentence. That
      opportunity has to be real and effective, which means that the
      accused must be permitted to adduce before the Court all the
      data which he desires to adduce on the question of sentence. The
      accused may exercise that right either by instrncting his counsel
                                                                              G
      to make oral submissions to the Court or he may, on affidavit or
      otherwise, place in writing before the Court whatever he desires
      to place before it on the question of sentence. The Court may, In
      appropriate cases, have to adjourn the matter in order to give to
''° (1976)4 sec 190
'" (I 977) 3 sec 68                                                           H
214            SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A           the accused sufficient time to produce the necessary data and to
            make his contentions on the question of sentence. That, perhaps,
            must inevitably happen where the conviction is recorded for the
            first time by a higher court.
            80. Bhagwati, J. has observed in his judgment that care ought to
B           be taken to ensure that the opportunity of a hearing on the question
            of sentence is nut abused and turned into an instmment for unduly
            protracting the proceedings. The material on which the accused
            proposes to rely may therefore, according to the learned Judge,
            be placed before the Court by means of an affidavit. Fazal Ali, J .,
            also observes that the courts must be vigilant to exercise proper
c           control over their proceedings, that the accused must not be
            permitted to adopt dilatory tactics under the cover of the new
            right and that what Section 235(2) contemplates is a short and
            simple opportunity to place the necessary material before the
            Court. These observations show that for a proper and effective
D           implementation of the provision contained in Section 235(2), it is
            not always necessary to remand the matter to the court which
            has recorded the conviction. The fact that in Santa Singh this
            Court remanded the matter to the Sessions Court does not spell
            out the ratio of the judgment to be that in eve1y such case there
            has to be a remand. Remand is an exception, not the rule, and
 E          ought therefore to be avoided as far as possible in the interests of
            expeditious, though fair, disposal of cases."
             308. Mr. Raju Ramachandran, learned amicus curiae, submitted
      that the sentence passed by the trial court that has been confirmed by
      the High Court ought to be set aside as they have not followed the
 F    fundamental norms of sentencing and have not been guided by the
      paramount beacons oflegislative policy discernible from Section 354(3)
      and Section 235(2) CrPC. Tt is urged by him that the import of Section
      235 CrPC is not only to hear the submissions orally but also to afford an
      oppo1tunity to the prosecution and the defence to place the relevant
 G    material having bearing on the question of sentence. Learned amicus
      curiae would submit that the trial court as well as the High Court has
      failed to put any of the accused persons to notice on the question of
      imposition of death sentence; that sufficient time was not granted to
      reflect on the question of death penalty; that none of the accused persons
      were heard in person; that the learned trial Judge has failed to elicit
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            215
                  [DTPAK MISRA, J.]

those circumstances of the accused which would have a bearing on the          A
question of sentence, especially the mitigating factors in a case where
death penalty is imposed; that no separate reasons were ascribed for
the imposition of death penalty on each of the accused; and that it was
obligatory on the part of the learned trial Judge to individually afford an
opportunity to the accused persons. Learned amicus curiae would submit
                                                                              B
that the learned trial Judge has pronounced the sentence in a routine
manner which vitiates the sentence inasmuch as the solemn duty of the
sentencing court has not been kept in view. Mr. Ramachandran had
emphatically put forth that denial of an individualized sentencing process
results in the denial of Articles 14 and 21 of the Constitution oflndia.
Mr. Luthra, learned senior counsel for the respondent-State, submitted        c
that the learned trial Judge had heard the accused persons and there has
been compliance with Section 235(2) CrPC and the High Comt has
appositely concurred with the same.
       309. Be it stated, after hearing the learned counsel for the both
sides and the learned amicus curiae, the Court, on 03.02.2017, passed         D
the following order:
      "After the argument for the accused persons by Mr. M. L. Sharma
      and Mr. A.P. Singh, learned counsel were advanced, we thought
      it appropriate to hear the learned friends of the Court and,
      accordingly, we have heard Mr. Raju Ramachandran and Mr.                E
      Sanjay R. Hegde, learned senior counsel. It is worthy to note
      here that Mr. Hegde, learned senior counsel argued on the
      sustainability of the conviction on many a ground and submitted a
      written note of submission. Mr. Ramachandran, learned senior
      counsel, inter alia, emphasized on the aspect of sentence imposed
      by the trial court which has been confirmed under Section 366           F
      Cr.P.C. While arguing with regard to the imposition of the capital
      punishment on the accused persons, one of the main submissions
      of Mr. Ramachandran was that neither the trial court nor the
      High Court has followed the mandate enshrined under Section
      235(2) of the Code of Criminal Procedure. Section 235(2) Cr.P.C.        G
      reads as follows:-
          "235. Judgment of acquittal or conviction.- ( 1) After hearing
          arguments and points of law (if any), the Judge shall give a
          judgment in the case. (2) lfthe accused is convicted, the Judge
          shall, unless he proceeds in accordance with the provisions of      H
216            SUPREME COURT REPORTS                            [2017] 6 S.C.R.


A              section 360, hear the accused on the question of sentence, and
               then pass sentence on him according to law."
            Referring to the procedure adopted by the trial court, it was urged
            by Mr. Ramachandran that the learned trial Judge had not
            considered the aggravating and mitigating circumstances, as are
B           required to be considered in view of the Constitution Bench decision
            in Bachan Singh vs. State of Punjab 1" , and further there has
            been a failure of the substantive law, inasmuch as there has been
            weighing of the mitigating or the aggravating circumstances in
            respect of each individual accused. Learned senior counsel
            contended that Section 235(2) Cr.P.C. is not a mere formality and
 c          in a case when there are more than one accused, it is obligatory
            on the part of the leamed trial Judge to hear the accused individually
            on the question of sentence and deal with him. As put forth by
            Mr. Ramachandran, the High Court has also failed to take pains
            in that regard. To bolster his submission, he has commended us to
 D          the authority in Santa Singh vs. The State of Pwzjab. In the said
            case, Bhagwati, J. dealt with the anatomy of Section 235 Cr.P.C.,
            the purpose and purport behind it and, eventually, came to hold
            that:-
                "Law strives to give them social and economic justice and it
 E              has, therefore, necessarily to be weighted in favour of the weak
                and the exposed. This is the new law which judges are now
                called upon to administer and it is, therefore, essential that they
                should receive proper training which would bring about an
                orientation in their approach and outlook, stimulate sympathies
                in them for the vulnerable sections of the community and inject
 F              a new awareness and sense of public commitment in them.
                They should also be educated in the new trends in penology
                and sentencing procedures so that they may learn to use penal
                law as a tool for reforming and rehabilitating criminals and
                smoothening out the uneven texture of the social fabric and
 G              not as a weapon, fashioned by law, for protecting and
                perpetuating the hegemony of one class over the other. Be
                that as it may, it is clear that the learned Sessions Judge was
                not aware of the provision in section 235(2) and so also was
                the lawyer of the appellant in the High Court unaware of it.
      '" (I 980) 2 sec 684
 H
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             217
              [DlPAK MISRA, J.]

    No inference can, therefore, be drawn from the omission of             A
    the appellant to raise this point, that he had nothing to Say in
    regard to the sentence and that consequently no prejudice was
    caused to him."
   Thereafter, the learned Judge opined that non-compliance goes
 to the very root of the matter and it results in vitiating the sentence   B
 imposed. Eventually, Bhagwati, J. set aside the sentence of death
 and remanded the case to the court of session with a direction to
 pass appropriate sentence after giving an opportunity to the
 appellant therein to be heard in regard to the question of sentence
 in accordance with the provision contained in Section 235(2)
 Cr.P.C. as interpreted by him.                                            c
  ln the concurring opinion, Fazal Ali, J., rnled thus:-
    "The last point to be considered is the extent and import of the
    word "hear" used in Section 235(2) of the 1973 Code. Does it
    indicate, that the accused should enter into a fresh trial by D
    producing oral and documentary evidence on the question of
    the sentence which naturally will result in further delay of the
    trial? The Parliament does not appear to have intended that
    the accused should adopt dilatory tactics under the cover of
    this new provision but contemplated that a short and simple
    opportunity has to be given to the accused to place materials if E
    necessary by leading evidence before the Court bearing on
    the question of sentence and a consequent opportunity to the
    prosecution to rebut those materials. The Law Commission
    was fully aware of this anomaly and it accordingly suggested
    thus:                                                            f
      "We are aware that a provision for an opportunity to give
      evidence in this respect may necessitate an adjournment; and
      to avoid delay adjournment, for the purpose should, ordinarily
      be for not more than 14 days. lt may be so provided in the
      relevant clause. lt may not be practicable to keep up to the         G
      time-limit suggested by the Law Commission with
      mathematical accuracy but the Courts must be vigilant to
      exercise proper contro 1over the proceedings so that the trial
      is not unavoidably or unnecessarily delayed."
   The said decision was considered by a three-Judge Bench in
                                                                           H
218      SUPREME COURT REPORTS                         [2017] 6 S.C.R.



A     Dagdu and Others VS. State of Maharashtra ( 1977) 3 sec 68.
      The three-Judge Bench referred to the Jaw laid down in Santa
      Singh (supra) and opined that the mandate of Section 235 (2)
      Cr.P.C. has to be obeyed in letter and spirit. However, the larger
      Bench thought that Santa Singh (supra) does not lay down as a
      principle that failure on the part of the Court which convicts an
B
      accused, to hear him on the question of sentence must necessarily
      entail a remand to that Court in order to afford the accused an
      opportunity to be heard on the question of sentence. Chandrachud,
      J. (as His Lordship then was) speaking for the Bench ruled thus:-
         "The Court, on convicting an accused, must unquestionably
 c       hear him on the question of sentence. But if, for any reason, it
         omits to do so and the accused makes a grievance of it in the
         higher court, it would be open to that Com1 to remedy the
         breach by giving a hearing to the accused on the question of
         sentence. That opportunity has to be real and effective, which
D        means that the accused must be permitted to adduce before
         the Com1 all the data which he desires to adduce on the question
         of sentence. The accused may exercise that right either by
         instructing his counsel to make oral submissions to the Court
         or he may, on affidavit or otherwise, place in writing before
         the Court whatever he desires to place before it on the question
 E       of sentence. The Court may, in appropriate cases, have to
         adjourn the matter in order to give to the accused sufficient
         time to produce the necessary data and to make his contentions
         on the question of sentence. That, perhaps, must inevitably
         happen where the conviction is recorded for the first time by a
 F       higher court."
        It is seemly to note here that Mr. Ramachandran has also
      commended us to a three-Judge Bench decision in Malkiat Singh
      and Others vs. State of Punjab ( 1991) 4 SCC 341, wherein the
      three-Judge Bench ruled ·that sufficient time has to be given to
 G    the accused or the prosecution on the question of sentence, to
      show the grounds on which the prosecution may plead or the
      accused may show that the maximum sentence of death may be
      the appropriate sentence or the minimum sentence of life
      imprisonment may be awarded, as the case may be.

H       Learned senior counsel has also drawn our attention to a
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                           219
              [DTPAK MISRA, J.]

 two-Judge Bench decision in Ajay Pandit alias Jagdish A
 Dayabhai Patel and Another vs. State of Maharashtra (2012)
 8 SCC 43, wherein the matter was remanded to the High Court.
 Mr. Ramachandran has drawn our attention to paragraph 47 of
 the· said authority. lt reads as follows:-
     "Awarding death sentence is an exception, nor the rule, and         B
     only in the rarest of rare cases, the court could award death
     sentence. The state of mind of a person awaiting death sentence
     and the state of mind of a person who has been awarded life
     sentence may not be the same mentally and psychologically.
     The court has got a duty and obligation to elicit relevant facts
     even ifthe accused has kept totally silent in such situations. In
                                                                         c
     the instant case, the High Court has not addressed the issue in
     the correct perspective bearing in mind those relevant factors,
     while questioning the accused and, therefore, committed a gross
     error ofprocedure in not properly assimilating and understanding
     the purpose and object behind Section 235(2) CrPC."                 D
 Having considered all the authorities, we find that there are two
 modes, one is to remand the matter or to direct the accused persons
 to produce necessary data and advance the contention on the
 question of sentence. Regard being had to the nature of the case,
 we think it appropriate to adopt the second mode. To elaborate,         E
 we would like to give opportunity before conclusion of the hearing
 to the accused persons to file affidavits along with documents
 stating about the mitigating circumstances. Needless to say, for
 the said purpose, it is necessary that the learned counsel, Mr.
 M.L. Sharma and his associate Ms. Suman and Mr. A.P. Singh
 and his associate Mr. V.P. Singh should be allowed to visit the jail    F
 and communicate with the accused persons and file the requisite
 affidavits and materials.
    At this juncture, Mr. M.L. Sharma, learned counsel has
  submitted that on many a occasion, he has faced difficulty as he
  had to wait in the jail to have a dialogue with his clients. Mr.       G
  Sidharth Luthra, learned senior counsel has submitted that if this
  Court directs, Mr. M.L. Sharma and Mr. A.P. Singh, learned counsel
  and their associate Advocates can visit the jail at 2.45 p.m. each
  day and they shall be allowed to enter the jail between 3.00 p.m.
  to 3.15 p.m. and can spend time till 5.00 p.m. Needless to say,        H
220            SUPREME COURT REPORTS                              [2017] 6 S.C.R.



A          they can commence their visits from 7th Febrnary, 2017, and file
           the necessary separate affidavits and documents. After the
           affidavits are made ready by the learned counsel for the accused
           persons, they can intimate about the same to Mr. Luthra, who in
           his turn, shall intimate the same to the Superintendent of Jail, who
           shall make arrangement for a Notary so that affidavits can be
B
           notarized, treating this as a direction of this Court. Needless to
           say, while the learned counsel will be discussing with the accused
           persons, the meeting shall be held in separate rooms inside the jail
           premises so that they can have a free discussion with the accused
           persons. Needless to say, they can reproduce in verbatim what
 c         the accused persons tell them in the affidavit. The affidavits shall
           be filed by 23rd Febrnary, 2017.
              We may hasten to add that after the affidavits come on record,
            a date shall be fixed for hearing of the affidavits and pertaining to
            quantum of sentence if, eventually, the conviction is affirmed. The
D           learned counsel for the prosecution, needless to say, is entitled to
            file necessary affidavits with regard to the circumstances or
            reasons for sustenance of the sentence. Additionally, the
            prosecution is given liberty to put forth in the affidavit any refutation,
            after the copies of the affidavits by the learned counsel for the
            accused persons are served on him. For the said purpose, a week's
 E          time is granted. Needless to say, the matter shall be heard on
            sentence, after affidavits from both the sides are brought on record.
            The date shall be given at 2.00 p.m. on 6th February, 2017. For
            the present, the matter stands adjourned to 4th February, 2017,
            for hearing.
 F             Let a copy of the order be handed over to Mr. Sidharth Luthra
            by 4th Febrnary, 2017, who shall get it translated in Hindi and give
            it to the Superintendent of Jail, who in his tum, shall hand over it to
            the accused persons and, simultaneously, explain the purport and
            effect of the order.
 G            The Superintendent of Jail is also directed to submit a report
            with regard to the conduct of the accused persons while they are
            in custody."
            310. After passing of the said order, the hearing continued and on
      13.02.2017, the following order was passed:
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              221
                 [DIPAK MISRA, J.]

      "Mr. A.P. Singh, learned counsel has concluded his arguments.            A
      After his conclusion of the arguments, as per our order, dated
      3.2.2017, affidavits are required to be filed by 23.2.2017. Let the
      affidavits be filed by that date. Mr. Siddharth Luthra, learned senior
      counsel appearing for the State shall file the affidavit by 2nd
      March, 2017. Registry is directed to hand over copies of the
                                                                               B
      affidavits to Mr. K. Parameshwar, learned counsel assisting Mr.
      Raju Ramachandran, learned senior counsel and Mr. Anil Kumar
      Mishra-I, learned counsel assisting Mr. Sanjay Kumar Hegde,
      learned senior counsel (Amicus Curiae).
        Mr. Luthra, learned senior counsel shall make arrangements for
      visit of Mr. A.P. Singh and Mr. Manohar Lal Sharma, learned              c
      counsel for the petitioners even on Saturday and sunday. He shall
      intimate our order to the jail authorities so that they can arrange
      the visit of Mr. A.P. Singh and Mr. Manohar Lal Sharma on
      $aturday and Sunday.
       Let the matter be listed on 3 .3.201 7 for hearing on the question      D
      of sentence, aggravating and mitigating circumstances on the basis
      of the materials brought on record by learned counsel for the
      parties."
      31 I. In pursuance of the aforesaid order, affidavits on behalf of
the appellants have been filed. It is necessary to note that the learned       E
counsel for the appellants addressed the Court on the basis of affidavits
on 06.03.2017 and the order passed on that date is extracted hereunder:
      "Mr. A.P. Singh, learned counsel has filed affidavits on behalf of
      the three accused persons, namely, Pawan Kumar Gupta, Vinay
      Sharma and Akshay Kumar Singh and Mr. M.L. Sharma, learned               F
      counsel has filed the affidavit on behalf of Mukesh. Be it noted,
      Mr. A.P. Singh, learned counsel has filed the translated version of
      the affidavits and Mr. Manohar Lal Sharma, learned counsel has
      filed the original version in Hindi as well as the translated one.
      At this juncture, Mr. Raju Ramachandran, learned senior counsel          G
      who has been appointed as Amicus Curiae to assist the Court,
      submitted that two aspects are required to be further probed to
      comply with the order dated 3.2.2017 inasmuch as this Court has
      taken the burden on itself for compliance of Section 235(2) of the
      Code of Criminal Procedure. Learned senior counsel would point           H
222           SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A          out that the affidavit filed by Mukesh does not cover many aspects,
           namely, socio-economic background, criminal antecedents, family
           particulars, personal habits, education, vocational skills, physical
           health and his conduct in the prison.
             Mr. Manohar Lal Sharma, learned counsel submits that a report
B          was asked for from the Superintendent of Jail with regard to the
           conduct of the accused persons while they are in custody, but the
           same has not directly been filed by the Superintendent of Jail.
            Mr. Siddharth Luthra, learned senior counsel for the respondent-
           State, would, per contra, contend that he has filed the affidavit
c          and the affidavit contains the report of the Superintendent of Jail.
             In our considered opinion, the Superintendent of Jail should have
           filed the report with regard to the conduct of the accused persons
           since they are in custody for almost four years. That would have
           thrown light on their conduct. Let the repo11 with regard to their
D          conduct be filed by the Superintendent of Jail in a sealed cover in
           the Court on the next date of hearing.
             As far as the affidavit filed by Mukesh is concerned, Mr. Shanna,
           learned counsel stated that he will keep the aspects which are
           required to be highlighted in mind and file a further affidavit within
 E         a week hence.
           The direction issued on the earlier occasion with regard to the
           visit of jail by the learned counsel for the parties shall remain in
           force till the next date of hearing.
           Let the matter be listed at 2.00 p.m. on 20.3.2017. The repo11 of
 F         the Superintendent of Jail, as directed hereinabove, shall be filed
           in Court on that date."
            312. Thereafter, the matter was heard on 20.03.2017 and the
      following order came to be passed:
              "Mr. M.L. Sharma, learned counsel has filed an additional
 G          affidavit of the petitioner, Mukesh and Mr. A.P. Singh, learned
            counsel has filed affidavits for the petitioners, Pawan Kumar
            Gupta, Vinay Kumar Sharma, and Akshay Kumar Singh.
              Mr. Siddharth Luthra, learned senior counsel has produced two
            sealed covers containing the reports submitted by Superintendent
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             223
                  [DWAK MISRA, J.]

      of the Central Jail No.2 and the Superintendent of Central Jail          A
      No.4 in respect of the petitioners who are in the respective jails.
      Two sealed covers are opened in presence of the learned counsel
      for the parties. They be kept on record.
        Registry is directed to supply a copy of the aforesaid reports to
      Mr. M.L. Sharma and Mr. A.P. Singh, learned counsel for the              B
      petitioners. Registry shall also supply a copy thereof to Mr. K.
      Parameshwar, learned counsel assisting Mr. Raju Ramachandran,
      learned Amicus Curiae and Mr. Anil Kumar Mishra-I, learned
      counsel assisting Mr. Sanjay R. Hegde, learned Amicus Curiae.
      A copy of the report shall also be handed over to Ms. Supriya
      Juneja, learned counsel assisting Mr. Siddharth Luthra, learned
                                                                               c
      senior counsel, for he does not have a copy as the reports have
      been produced before us in the sealed covers.
      Mr. Siddharth Luthra, learned senior counsel prays for and is
      granted three days time to file a status report and argue the matter."
                                                                               D
      Delineation as regards the imposition of sentence
       313. Be it noted, we have heard the learned counsel appeari1ig
for the parties, Mr. Luthra, learned senior counsel for the respondent-
State, Mr. Ramachandran and Mr. Hegde on the question of sentence.
Before we advert to the principles for imposition of sentence, we think it     E
appropriate to deal with the affidavits filed by the accused. For the sake
of convenience, it is necessary to make a summary of the affidavits.
       314. Accused Mukesh, A-2, filed his statement, written in his own
hand-writing in Hindi, denying his involvement in the occurrence and
pleading innocence. He stated that on 17. l 2.2012, he was picked up
                                                                               F
from his house at Karoli, Rajasthan and brought to Delhi where the
police tortured him and threatened to kill him. Therefore, he acted as per
the direction of the police and V.K. Anand, Advocate. He further stated
that he is uneducated and poor, but not a criminal and if he is acquitted,
he would go back to Karoli, Rajasthan and would take care of his parents.
                                                                               G
       315. Accused Akshay Kumar Singh, A-3, has stated that he hails
from a naxal affected area in District Aurangabad, Bihar and due to
poverty, he could not continue his studies beyond 9'" class. He has stated
that his aged father Shri Saryu Singh and mother, Smt. Malti Devi, are
dependent on him. He has further stated that he is married to Punita
                                                                               H
224             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A     Devi since 2010 and they have a son, now aged about six years. He
      fut1her stated that due to pove11y and lack of adequate opportunity in
      home town, he came to Delhi in the month of November 2012 to earn
      his livelihood. To maintain his dependants which include his parents, wife
      and child, he started working as a cleaner in the concerned bus at a
      wage ofRs.50/- per day. He reiterated his plea of alibi asserting that he
B
      had left Delhi on 15.12.2012 in Mahabodhi Express accompanied by his
      sister-in-law, Sarita Devi, and went to his native place Karmalahang
      where he was arrested. He fm1her stated that after his confinement in
      Tihar Jail, he has been maintaining good behaviour and is working hard
      as a labourer in the prison to maintain his family.
c            316. Accused Vinay Sharma, A-4, in his affidavit stated that he
      was born in Kapiya Kalan, Tehsil Rudra Nagar, District Basti, Uttar
      Pradesh and that his parents used to work as labourers and that his
      family is very poor. The accused stated that he used to take care of his
      grandfather who was a religious saint and up to July, 2012, he was
D     studying at his native place in Uttar Pradesh and only after July, 2012, he
      came to Delhi to pursue his further studies. He has stated that he got
      himself admitted to the University of Delhi, School of Open Learning,
      Delhi and to earn his livelihood, he worked as a part-time instmctor in
      gym and also as a seasonal waiter in hotels and marriage ceremonies at
      night. Accused Vinay Sharma further stated that he has to take care of
 E    his ailing parents and also his younger sisters and younger brother, who
      are totally dependent on him. In his affidavit, he reiterated his plea of
      alibi asserting that on the fatefol day, he had participated in the Christmas
      celebration and was enjoying there with his family. The accused has
      further stated that he has no criminal antecedents and after his
 F    confinement in Tihar Jail, he has maintained good behaviour and has
      also organized various musical programmes and his paintings are displayed
      in Tihar Jail.
             317. Accused Pawan Gupta, A-5, filed his affidavit stating that he
      comes from a very poor family where his father used to sell fruits on the
 G    road for their living. He farther stated that he is a resident of Cluster
      Jhuggi Basti and was assisting his father in selling fmits on a cart. The
      accused also illustrated the ailing condition of his family stating that his
      parents are heart patients and his mother is a handicapped person
      suffering from BP and thyroid. He also stated that his younger sister,
      Dimple Gupta, was under depression on account of the false implication
 H
     MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                          225
                   [DIPAK MISRA, J.]

 of her brother in the present case and could not tolerate humiliation by    A
 the society and she has committed suicide on 09.02.2013. Apart from
 that, he has to look after his dependant parents and two other sisters,
 one married and the other unmarried and aged 17 years, and one younger
 brother. On behalf of accused Pawan Gupta, fervent plea was made
 that he has no prior criminal antecedent and after being confined to
                                                                             B
 Central Jail, Tihar, he is trying to reform himself into a better person.
         318. Mr. Ramachandran, learned amicus curiae, criticized the
  sentence, placed reliance on Bachan Singh v. State of Punjab 123 and
  submitted that the trial court and the High Court have committed the
  error of not applying the doctrine of equality which prescribes similar
  treatment to similar persons and stated that the Court in Bachan Singh
                                                                           c
  (supra) has categorically held that the extreme penalty can be inflicted
  only in gravest cases of extreme culpability; in making the choice of
  sentence, in addition to the circumstances of the offence, due regard
  must be paid to the circumstances of the offender also; and that the
  mitigating circumstances referred therein are undoubtedly relevant and D
  must be given great weight in the determination of sentence. Further
  placing reliance on Mach/ti Singh v. State of Punjab,,,, it is submitted
  by learned amicus curiae that in the said case, the Court held that a
  balance sheet of the aggravating and mitigating circumstances should
  be drawn up and the mitigating circumstances should be accorded full
 .weightage and a just balance should be strnck between the aggravating E
  and mitigating circumstances. He further pointed out number of decisions
. wherein this Court has given considerable weight to the circumstances
  of the criminal and commuted the sentence to life imprisonment.
        319. Mr. Ramachandran further urged that in the present case,
 the decision in Bachan Singh (supra) was completely disregarded and F
 the trial court, while sentencing the accused, only placed emphasis on
 the brutal and heinous nature of the crime and the mitigating factors
 including the possibility of reform and rehabilitation were ruled out on
 the basis of the nature of the crime and not on its own merits. It is
 further contended by him that in Sangeet <1111/ another v. State of G
 Jla1yana 125 and Shankar Kisanrao Khade v. State of Maharashtra 12•,

 "' ( 1980) 2 sec 684
 "' (l 983) 3 sec 470
 '" (2o 13) 2 sec 452
 '" (2013) 5 sec 546
                                                                             H
226            SUPREME COURT REPORTS                         [2017] 6 S.C.R.


A     the decisions, i.e., Sltiv v. High Court of Kamataka 117 , B.A. Umesh v.
      Registrar General, High Court of Kamataka 118 and Dhananjoy
      C/1aterjee v. State of West Benga/ 119, relied upon by the Special Public
      Prosecutor and the High Court, have been doubted by this Court.
         320. Learned amicus curiae has further propounded that sentencing
B and non-consideration of the mitigating circumstances are violative of
  Articles 14 and 21 of the Constitution. It is his submission that the
  prosecution's argument on aggravating circumstances gets buttressed
  by the material on record while the plea of mitigating circumstances
  rests solely on arguments and this imbalance is a serious violation of the
  doctrine of fairness and reasonableness enshrined in Article 14 of the
c Constitution; that there should be a fair and principle-based sentencing
  process in death penalty cases by which a genuine and conscious attempt
  is made to investigate and evaluate the circumstances of the criminal;
  that the fair and principled approaches are facets of Article 14; and that
  ifthe enumeration and evaluation of mitigating factors are left only to
D the accused or his counsel and the Cou1t does not accord a principle-
  based treatment, the imposition of death penalty will be rendered the
  norm and not the exception, which is an inversion of the Bachan Singh
  (supra) logic and a serious violation of Article 21 of the Constitution.
          321. Mr. Ramachandran submitted that the trial court and the
 E High   Court  failed to pay due regard to the mitigating factors; that the
   courts have committed the mistake ofrejecting the mitigating factors by
   reasoning that it may not be sufficient for awarding life sentence; and
   that the courts have not considered all the mitigating factors cumulatively
   to arrive at the conclusion whether the case fell within the rarest of rare
   category. He has referred to the Constitution Bench decision in
 F Triveniben v. State of Gujarat 1311 wherein Shetty, J. in his concurring
   opinion, opined that death sentence cannot be given if there is any one
   mitigating circumstance in favour of the accused and all circumstances
   of the case should be aggravating and submitted that this line of judicial
   thought has been completely ignored by the High Comt and the trial
 G court.
          322. Learned amicus curiae further contended that the attribution
      101
          c2001i 4 sec 113
      '" (2011) 3 sec 85
      '" c1994) 2 sec 220
      "' c1989) 1 sec 678
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                           227
                  [DIPAK MISRA, J.]

of individual role with respect to the iron rod, which was a cmcial A
consideration in convicting the accused under Section 302 IPC, was not
considered by the trial court or the High Court in the sentencing process
and stressed that when life imprisonment is the nonn and death penalty
the exception, the lack of individual role has tobe regarded as a major
mitigating circumstance. In this regard, reliance has been placed by him B
on Karneslt Singh v. State of U.P. 131 , Ronny v. State of
Maharashtra 132 , Nirmal Singh v. State of Harya11a 133 and Sahdeo v.
State of U.P 134•
       323. Mr. Ramachandran has also contended that subsequent to
the pronouncement in Mach/ii Singh (supra), there are series of decisions
by this Court where the Court has given considerable weight to the
                                                                             c
concept ofreformation and rehabilitation and commuted the sentence to
life imprisonment. According to him, young age is a mitigating factor
and this Court has taken note of the same in Raghubir Singh v. State of
Haryana 135 , Hamam Singh v. State of Uttar Pradeslt 136 , Amit v. State
of Maharashtra 137, Rahul v. State of Maharashtra 138 , Rameshblzai D
Chandubhai Ratltod v. State of Gujarat139 , Santosh Kumar Bariyar
v. State of Maharashtra" 0 , Sebastian v. State of Kera/aw, Santosh
Kumar Singh (supra), Rameshbhai Chandubhai Ratltod IT v. State
of Gujarat 142 , Amit v. State of Uttar Pradesh 143 and La/it Kumar
Yadav v. State of Uttar Pradesh 144 • That apart, it is urged by him that
                                                                             E
when the crime is not pre-meditated, the same becomes a mitigating
factor and that has been taken note of by this Court in the authorities in
Akhtar v State of Uttar Pradesh 145 , Raju v. State of Haryana 146 and

"' AIR 1968 SC 1402
"' ( 1998) 3 sec 625
13
   ' ( l 999) 3 sec 670
                                                                             F
"' (2004) 1o sec 682
"' ( 1975) 3 sec 37
   6
"     (1976) 1sec163
m (2003) 8 sec 93
"' (2005) 1o sec 322
139 (2009) 5 sec 740
                                                                             G
140 (2009) 6 sec 498

    ' (20 l O) l sec 58
14

'" (20ll)2SCC764
14
   ' (2012) 4 sec 101

"' (2014) 11sec129
14
   ' (1999) 6 sec 60
146
      (2001) 9 sec 5o                                                        H
228             SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A     Amrit Singh v. State of Punjab 147 •
            324. Learned amicus curiae would further urge that when the
      criminal antecedents are lacking and the prosecution has not been able
      to say about that the appellants deserve imposition of lesser sentence.
      For the said purpose, he has commended us to the authorities in Nirmal
 B    Singh (supra), Raju v. State of Haryana (supra), Amit v. State of
      Maharashtra (supra), Surender Pal v. State of Gujarat 148 ,
      Rameshbhai Cha11dubhai Rathod II (supra), Amit v. State of Uttar
      Pradesh (supra), Anil v. State of Maharashtra 149 and La/it Kumar
      Yadav v. State of Uttar Pradesh 150 •
 c           325. Learned senior counsel has emphasized on the reform,
      rehabilitation and absence of any continuing threat to the collective which
      are factors to be taken into consideration for the purpose of commutation
      of death penalty to life imprisonment. Tn this regard, learned senior
      counsel has drawn inspiration from the decisions in Ronny (supra),
      Nirmal Singh (supra), Bantu v. State of Madhya Pradesh 151 , Le/ma
 D    (supra), Rahul (supra), Santosh Kumar Bariyar (supra), Santos/1
      Kumar Singh (supra), Rajes/i Kumar v. State151 , Amit v. State of Uttar
      Pradesh (supra), Ramnaresh v. State of Chhattisgarh 153 , Sandesh v.
      State of Maharashtra 154 and La/it Kumar Yadav (supra).
              326. Mr. Ramachandran has also submitted that the present case
 E    should be treated as a special category as has been held in Swamy
      Shradhananda (2) v. State ofKarnataka 155 and the recent Constitution
      Bench decision in Union of India v. Srihara11 156 • Tt is urged by him
      that in many a case, this Court has exercised the said discretion. Learned
      senior counsel in that regard has drawn our attention to the
 F    pronouncements in Rameshbhai Chandubhai Rathod (s~1pra), Neel
      Kumar v. State of Haryana 157 , Ram Deo Prasad v. State of Bihar 158 ,
      "' (2006) 12 sec 19
      "' (2005J 3 sec 121
      "' c2014) 4 sec 69
      i;o c2014) 11sec129

 G
      1
        "    c2001 J 9 sec 615
      1
        "    c2011) 13sec106
      15
           ' (2012) 4 sec 257
      15
          ' (2013) 2 sec 479
      i;s (2008) 13 sec 767
      15
          ' (2016) 1 sec 1
      1
        "     c2012) 5 sec 766
 H    1
        "    (2013) 7 sec 725
      MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                          229
                     [DIPAK MISRA, J.]

Chhote Lal v.State of Madhya Pradesh 159 , Anil v. State of A
Maharashtra (supra), Rajkumar (supra) and Se/vam v. State 160 •
       327. Mr. Hegde, learned friend of the Court, canvassed that the
theory of reformation cannot be ignored entirely in the obtaining factual
matrix in view of the materials brought on record. Learned senior counsel
would contend that imposition of death penalty would be extremely harsh       B
and totally unwarranted inasmuch as the case at hand does not fall in the
category of rarest of rare case. That apart, it is contended by him that
the entire incident has to be viewed from a different perspective, that is,
the accused persons had the bus in their control, they were drunk, and
sitµation emerged where the poverty-stricken persons felt empowered
as a consequence of which the incident took place and considering the
                                                                              c
said aspect, they may be imposed substantive custodial sentence for
specific years but not death penalty. Additionally, it is submitted by him
that in the absence of pre-meditation to commit a crime of the present
nature, it would not invite the harshest punishment.
       328. Mr. Luthra, learned senior counsel~ has referred to the reports   D
of the Superintendent of Jail that the conduct of the accused persons in
the jail has been absolutely non-satisfactory and non-cooperative and
the diabolic nature of the crime has shaken the collective conscience.
According to him, the diabolic nature of the crime has nothing to do with
poverty, for it was not committed for alleviation of poverty but to satiate   E
their sexual appetite and enormous perversity. He would submit that
this would come in the category of rarest of the rare cases in view of the
law laid down in Sevaka Peruma/ v. State of Tamil Nadu 1• 1, Kamta
Tiwari v. State of Madhya Pradesh 162 , State of U.P. v. Satish 16 3,
Holiram Bordoloi v. State of Assam 164 , Ankush Maruti Shinde v.
State of Maharashtra 165 , Sundar v. State 166 and Mohfil Khan v. State       F
of Jharkhand' 67 •
 1
  "   c2013) 9 sec 795
 "' c2014) 12 sec 214
  " c 1991) 3 sec 471
 1

 1
  "    (1996) 6 sec 250                                                       G
 "' c2005) 3 sec 114
    ' (2005) 3 sec 793
 16

 16> (2009) 6 sec 667

  ' ' (2013) 3 sec 215
 1


     ' c2015) 1 sec 67
 16

                                                                              H
230             SUPREME COURT REPORTS                           [20 l 7] 6 S.C.R.



A           329. It is also submitted by Mr. Luthra that mitigating
      circumstances are required to be considered in the light of the offence
      and not alone on the backdrop of age and family background. For this
      purpose, he has relied upon Deepak Rai v. State of Bihar 168 and
      P11rshottam Dashrath Borate v. State of Maharashtra 169 •
B            330. Mr. Sharma and Mr. Singh, learned counsel for the appellants,
      would submit that the conduct of the accused persons shows reformation
      as there are engaged in educating themselves and also they have been
      participating in affirmative and constructive activities adopted in jail and
      so, death penalty should not be affirmed and should be commuted. Mr.
      Sharma, learned counsel appearing for the accused Mukesh, submits
 c    that he is not connected with the crime in question. It is put forth that the
      case at hand cannot be regarded as rarest of the rare cases and, therefore,
      the maximum punishment that can be given should be for a specific
      period.
            331. Presently, we shall proceed to analyse the aforesaid aspect.
 D    In Bachan Singh (supra), the Court held thus:
             "(a) The normal rule is that the offence of murder shall be punished
             with the sentence oflife imprisonment. The court can depart from
             that rule and impose the sentence of death only ifthere are special
             reasons for doing so. Such reasons must be recorded in writing
 E           before imposing the death sentence.
             (b) While considering the question of sentence to be imposed for
             the offence of murder under Section 302 of the Penal Code, the
             court must have regard to every relevant circumstance relating to
             the crime as well as the criminal. If the court finds, but not
 F           otherwise, that the offence is of an exceptionally depraved and
             heinous character and constitutes, on account of its design and
             the manner of its execution, a source of grave danger to the society
             at large, the court may impose the death sentence."
             332. In the said case, the Court, after referring to the authority in
 G    F11rman v. Georgia' 70 , noted the suggestion given by the learned counsel
      about the aggravating and the mitigating circumstances. The aggravating
      circumstances suggested by the counsel read as follows:

      '" (2013) lo sec 421
      '" (2015) 6 sec 652
      170
 H        33 L Ed 2d 346 : 408 US 238 ( 1972)
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             231
                 [DIPAK MISRA, J.]

      "Aggravating circumstances: A court may, however, in the                A
      following cases impose the penalty of death in its discretion:
      (a) ifthe murder has been committed after previous planning and
      involves extreme brutality; or
      (b) ifthe murder involves exceptional depravity; or
                                                                              B
      (c) ifthe murder is of a member of any of the armed forces of the
      Union or of a member of any police force or of any public servant
      and was committed-
      (i) while such member or public servant was on duty; or
      (ii) in consequence of anything done or attempted to be done by         C
      such member or public servant in the lawful discharge of his duty
      as such member or public servant whether at the time of murder
      he was such member or public servant, as the case may be, or
      had ceased to be such member or public servant; or
      (d) if the murder is of a person who had acted in the lawful            D
      discharge of his duty under Section 43 of the Code of Criminal
      Procedure, 1973, or who had rendered assistance to a Magistrate
      or a police officer demanding his aid or requiring his assistance
      under Section 37 and Section 129 of the said Code."
      After reproducing the same, the Court opined:                           E
      "Stated broadly, there can be no objection to the acceptance of
      these indicators but as we have indicated already, we would prefer
      not to fetter judicial discretion by attempting to make an exhaustive
      enumeration one way or the other."
       333. Thereafter, the Court referred to the suggestions pertaining      F
to mitigating circumstances:
      "Mitigating circumstances .-In the exercise of its discretion in
     . the above cases, the court shall take into account the following
       circumstances:
                                                                              G
      (1) That the offence was committed under the influence of extreme
      mental or emotional disturbance.
      (2) The age of the accused. If the accused is young or old, he
      shall not be sentenced to death.
                                                                              H
232            SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A           (3) The probability that the accused would not commit criminal
            acts of violence as would constitute a continuing threat to society.
            (4) The probability that the accused can be reformed and
            rehabilitated. The State shall by evidence prove that the accused
            does not satisfy the conditions (3) and (4) above.
B           (5) That in the facts and circumstances of the case the ace.used
            believed that he was morally justified in committing the offence.
            (6) That the accused acted under the duress or domination of
            another person.
 C          (7) That the condition of the accused showed that he was mentally
            defective and that the said defect impaired his capacity to
            appreciate the criminality ofhis conduct."
            The Court then observed:
            "We will do no more than to say that these are undoubtedly relevant
 D          circumstances and must be given great weight in the determination
            of sentence."
            334. In the said case, the Court has also held thus:
            "It is, therefore, imperative to voice the concern that courts, aided
            by the broad illustrative guide-lines indicated by us, will discharge
 E          the onerous function with evermore scmpulous care and humane
            concern, directed along the highroad oflegislative policy outlined
            in Section 354(3) viz. that for persons convicted of murder, life
            imprisonment is the rnle and death sentence an exception. A real
            and abiding concern for the dignity of human life postulates
 F          resistance to taking a life through law's instrumentality. That ought
            not to be done save in the rarest of rare cases when the alternative
            option is unquestionably foreclosed."
            335. In Mach hi Singh (supra), a three-Judge Bench has explained
      the concept of 'rarest of the rare cases' by observing thus:
 G          "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 constmcted on the foundation of 'reverence for life'
            principle. When a member of the community violates this ve1y
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               233
                 [DIPAK MISRA, J.]

      principle by killing another member, the society may not feel itself A
      bound by the shackles of this doctrine. Secondly, it has to be
      realised 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
                                                                           B
      fear of being brought to book operates 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."
       336. Thereafter, the Court has adverted to the aspects of the
feeling of the community and its desire for self-preservation and opined
                                                                                c
that the community may well withdraw the protection by sanctioning the
death penalty. What has been ruled in this regard is worth reproducing:
      "But the community will not do so in every case. It may do so' in
      the rarest of rare cases' when its collective conscience is so
      shocked that it will expect the holders of the judicial power centre      D
      to inflict death penalty irrespective of their personal opinion as
      regards desirability or otherwise of retaining death penalty."
       337. It is apt to state here that in the said case, stress was laid on
certain aspects, namely, the manner of commission of the murder, the
motive for commission of the murder, anti-social or socially abhorrent          E
nature of the crime, magnitude of the crime and personality of the victim
of murder.
     338. After so enumerating, the propositions that emerged from
Bachan Singh (supra) were culled out which are as follows:
                                                                                F
       "The following propositions emerge from Bachan Singh case:
       "(i) The. extreme penalty of death need not be inflicted except in
       gravest cases of extreme culpability.
       (ii) Before opting for the death penalty the circumstances of the
       'offender' also require to be taken into consideration along with        G
       the circumstances of the 'crime'.
       (iii) Life imprisonment is the rule and death sentence is an
       exception. In other words death sentence must be imposed only
       when life imprisonment appears to be an altogether inadequate
                                                                                H
234              SUPREME COURT REPORTS                         [2017) 6 S.C.R.



A             punishment having regard to the relevant circumstances of the
              crime, and provided, and only provided, the option to impose
              sentence of imprisonment for life cannot be conscientiously
              exercised having regard to the nature and circumstances of the
              crime and all the relevant circumstances.
B             (iv) A balance sheet of aggravating and mitigating circumstances
              has to be drawn up and in doing so the mitigating circumstances
              have to be accorded full weightage and a just balance has to be
              struck between the aggravating and the mitigating circumstances
              before the option is exercised."
c           339. The three-Judge Bench further opined that to apply the said
      guidelines, the following questions are required to be answered:
              "(a) Is there something uncommon about the crime which renders
              sentence of imprisonment for life inadequate and calls for a death
              sentence?
D             (b) Are the circumstances of the crime such that there is no
              alternative but to impose death sentence even after according
              maximum weightage to the mitigating circumstances which speak
              in favour of the offender?"
            In the said case, the Court upheld the extreme penalty of death in
.E    respect of three accused persons.
            340. The Court in Haresh Mohandas Rajput v. State of
      Maltaraslttra 171 , while dealing with the situation where the death
      sentence is warranted, referred to the guidelines laid down in Bachan
      Singh (supra) and the principles culled out in Mach/ti Singh (supra)
 F    and opined as follows:
              "19. In Machhi Singh v. State of Punjab this Court expanded
              the "rarest of rare" formulation beyond the aggravating factors
              listed in Bachan Singh to cases where the "collective conscience"
              of the community is so shocked that it will expect the holders of
 G            the judicial power centre to inflict the death penalty irrespective
              of their personal opinion as regards desirability or otherwise of
              retaining the death penalty, such a penalty can be inflicted. But
              the Bench in this case underlined that full weightage must be
              accorded to the mitigating circumstances in a case and a just
      111
            (2011) 12SCC56
.H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               235
                 [DIPAK MISRA, J.]

      balance had to be struck between the aggravating and the                  A
      mitigating circumstances."
      After so stating, the Court ruled thus:
      "20. The rarest of the rare case" comes when a convict would be
      a menace and threat to the harmonious and peaceful coexistence
      of the society. The crime may be heinous or brutal but may not be         B
      in the category of "the rarest of the rare case". There must be no
      reason to believe that the accused cannot be reformed or
      rehabilitated and that he is likely to continue criminal acts of
      violence as would constitute a continuing threat to the society.
      The accused may be a menace to the society and would continue             c
      to be so, threatening its peaceful and harmonious coexistence.
      The manner in which the crime is committed must be such that it
      may result in intense and extreme indignation of the community
      and shock the collective conscience of the society. Where an
      accused does not act on any spur-of-the-moment provocation and
      indulges himself in a deliberately planned crime and meticulously         D
      executes it, the death sentence may be the most appropriate
      punishment for such a ghastly crime. The death sentence may be
      warranted where the victims are innocent children and helpless
      women. Thus, in case the crime is committed in a most cmel and
      inhuman manner which is an extremely bmtal, grotesque, diabolical,        E
      revolting and dastardly manner, where his act affects the entire
      moral fibre of the society e.g. crime committed for power or
      political ambition or indulging in organised criminal activities, death
      sentence should be awarded. (See C. Muniappan v. State of
      T.N 72 ., Dara Singh v. Republic of lndia 173 , Surendra Kali v.
      State of U.P. 174 , Mohd. Mannan 175 and Sudam v. State of                F
      Maharashtra 176 .)
      21. Thus, it is evident that for awarding the death sentence, there
      must be existence of aggravating circumstances and the
      consequential absence of mitigating circumstances. As to whether
      the death sentence should be awarded, would depend upon the               G
      factual scenario of the case in hand."
'" (2010) 9 sec 567
"'(2011) 2 sec 490
174
    Ibid
"'(2011) 5 sec 311
11• (2011) 1 sec 125                                                            H
236               SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A            341. This Court, while dealing with the murder of a young girl of
      about 18 years in Dhananjoy Chatterjee (supra), took note of the fact
      that the accused was a married man of 27 years of age, the principles
      stated in Bachan Singh 's case and further took note of the rise of
      violent crimes against women in recent years and, thereafter, on
      consideration of the aggravating factors and mitigating circumstances,
B
      opined that:
               "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
c              respond to the society's c1y 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
 D             considering imposition of appropriate punishment."
             342. After so stating, the Court took note of the fact that the
      deceased was a school-going girl and it was the sacred duty of the
      appellant, being a security guard, to ensure the safety of the inhabitants
      of the flats in the apartment but to gratify his lust, he had raped and
 E    murdered the girl in retaliation which made the crime more heinous.
      Appreciating the manner in which the barbaric crime was committed on
      a helpless and defenceless school-going girl of 18 years, the Court came
      to hold that the case fell in the category of rarest of the rare cases and,
      accordingly, affirmed the capital punishment imposed by the High Court.

 F           343. In Laxman Naik v. State o/Orissa 177, the Comt commenced
      the judgment with the following passage:
               "The present case before us reveals a sordid story which took
               place sometime in the afternoon ofFebrnary 17, 1990, in which
               the alleged sexual assault followed by brntal and merciless murder
 G             by the dastardly and monstrous act of abhorrent nature is said to
               have been committed by the appellant herein who is none else but
               an agnate and paternal uncle of the deceased victim Nitrna, a girl
               of the tender age of 7 years who fell a prey to his lust which
               sends shocking waves not only to the judicial conscience but to
      177
            (1994) 3 sec 3s1
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             237
                 [DTPAK MISRA, J.]

      everyone having slightest sense of human values and particularly        A
      to the blood relations and the society at large".
      344. It is worthy to note that in the said case, the High Court had
dismissed the appellant's appeal and confirmed the death sentence
awarded to him. While discussing as regards the justifiability of the
sentence, the Comt referred to the decision in Bachan Singh 's case           B
and opined that there were absolutely no mitigating circumstances and,
on the contrary, the facts of the case disclosed only aggravating
circumstances against the appellant. Elaborating further, the Court held
thus:
      "The hard facts of the present case are that the appellant Laxman       c
      is the uncle of the deceased and almost occupied the status and
      position that of a guardian. Consequently the victim who was aged
      about 7 years must have reposed complete confidence in the
      appellant and while reposing such faith and confidence in the
      appellant must have believed in his bona tides and it was on account
      of such a faith and belief that she acted upon the command of the       D
      appellant in accompanying him under the impression that she was
      being taken to her village unmindful of the preplanned unholy
      designs of the appellant. The victim was a totally helpless child
      there being no one to protect her in the desert where she was
      taken by the appellant misusing her confidence to fulfil his lust. It   E
      appears that the appellant had preplanned to commit the crime by
      resorting to diabolical methods and it was with that object that he
      took the girl to a lonely place to execute his dastardly act."
      After so stating, the Cou1t, while affirming the death sentence,
opined that:                                                                  F
      " ....... The victim of the age ofNitma could not have even ever
      resisted the act with which she was subjected to. The appellant
      seems to have acted in a beastly manner as after satisfying his
      lust he thought that the victim might expose him for the commission
      of the offence of forcible rape on her to the family members and        G
      others, the appellant with a view to screen the evidence of his
      crime also put an end to the life of innocent girl who had seen only
      seven summers. The evidence on record is indicative of the fact
      as to how diabolically the appellant had conceived of his plan and
      brutally executed it and such a calculated, cold-blooded and brutal
                                                                              H
238            SUPREME COURT REPORTS                              [2017] 6 S.C.R.



A           murder of a girl of a very tender age after committing rape on her
            would undoubtedly fall in the category of rarest of the rare cases
            attracting no punishment other than the capital punishment and
            consequently we confirm the sentence of death imposed upon the
            appellant for the offence under Section 302 of the Penal Code."
B            345. Kamta Tiwari (supra) is a case where the appellant was
      convicted for the offences punishable under Sections 363, 376, 302 and
      201 ofIPC and sentenced to death by the learned trial Judge and the
      same was affirmed by the High Court. In appeal, the two-Judge Bench
      referred to the propositions culled out in Machhi Singh (supra) and
      expressed thus:
 c
             "Taking an overall view of all the facts and circumstances of the
             instant case in the light of the above propositions we are of the
             firm opinion that the sentence of death should be maintained. In
             vain we have searched for mitigating circumstances - but found
             aggravating circumstances aplenty. The evidence on record clearly
D          ' establishes that the appellant was close to the family of
             Parmeshwar and the deceased and her siblings used to call him
             'Tiwari Uncle'. Obviously her closeness with the appellant
             encouraged her to go to his shop, which was near the saloon
             where she had gone for a haircut with her father and brother, and
 E           ask for some biscuits. The appellant readily responded to the
             request by taking her to the nearby grocery shop ofBudhsen and
             handing over a packet of biscuits apparently as a prelude to his
             sinister design which unfolded in her kidnapping, brutal rape and
             gruesome murder-as the numerous injuries on her person testify;
             and the finale was the dumping of her dead body in a well. When
 F           an innocent hapless girl of7 years was subjected to such barbaric
             treatment by a person who was in a position of her trust his
             culpability assumes the proportion of extreme depravity and
             arouses a sense of revulsion in the mind of the common man. In
             fine, the motivation of the perpetrator, the vulnerability of the victim,
 G           the enormity of the crime, the execution thereof persuade us to
             hold that this is a "rarest of rare" cases where the sentence of
             death is eminently desirable not only to deter others from committing
             such atrocious crimes but also to give emphatic expression to
             society's abhorrence of such crimes."

 H
         MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              239
                       [DIPAK MISRA, J.)

       346. In Bantu v. State of Uttar Pradesh 178 , a five year old minor           A
girl was raped and murdered and the appellant was awarded death
sentence by the trial Court which was affirmed by the High Court. This
Court found the appellant guilty of the crime and, thereafter, referred to
the principles stated in Bachan Singh, Maclthi Singh (supra) and
Devender Pal Singh v. State of A.P. 179 and eventually came to hold                  B
that the said case fell in the rarest of the rare category and the capital
punishment was warranted. Being of this view, the Court declined to
interfere with the sentence.
     347. In Rajendra Pralhadrao Wasnik v. State of
Maltarashtra 180 , the appellant was awarded sentence of death by the C
learned trial Judge which was confirmed by the High Court, for he was
found guilty of the offences punishable under Sections 376(2)(f), 377
and 302 IPC. In the said case, the prosecution had proven that the
appellant had lured a three year old minor girl child on the pretext of
buying her biscuits and then raped her and eventually, being apprehe!lsive
of being identified, killed her. In that context, while dismissing the appeal, D
the Court ruled thus:
            "37. When the Court draws a balance sheet of the aggravating
            and mitigating circumstances, for the purposes of determining
            whether the extreme sentence of death should be imposed upon
            the accused or not, the scale ofjustice only tilts against the accused   E
            as there is nothing but aggravating circumstances evident from
            the record of the Court. In fact, one has to really struggle to find
            out if there were any mitigating circumstances favouring the
            accused.
            38. Another aspect of the matter is that the minor child was helpless F
            in the cruel hands of the accused. The accused was holding the
            child in a relationship of"trust-belief' and "confidence", in which
            capacity he took the child from the house of PW 2. In other words,
            the accused, by his conduct, has belied the human relationship of
            trust and worthiness. The accused left the deceased in a badly
            injured condition in the open fields without even clothes. This G
            reflects the most unfortunate and abusive facet of human conduct,
            for which the accused has to blame' no one else than his own
            self."
17
     •   (2008J 11 sec 113
17
     '   (2002) s sec 234
"
     0
         (2012) 4 sec 37                                                             H
240             SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A           348. At this stage, it is frnitful to refer to some authorities where
      in cases of rape and murder, the death penalty was not awarded. In
      State of T.N. v. Suresh and another181 , the Com1, while unsettling the
      judgment of acquittal recorded by the High Court and finding that the
      accused was guilty of rape of a pregnant woman and also murder,
      awarded the sentence of life imprisonment by observing:
B
             'The above discussion takes us to the final conclusion that the
             High Court has seriously erred in upsetting the conviction entered
             by the Sessions Court as against A-2 and A-3. The erroneous
             approach has resulted in miscarriage of justice by allowing the
             two perpetrators of a dastardly crime committed against a helpless
c            young pregnant housewife who was sleeping in her own apai1ment
             with her little baby sleeping by her side and during the absence of
             her husband. We strongly feel that the error committed by the
             High Court must be undone by restoring the conviction passed
             against A-2 and A-3, though we are not inclined, at this distance
 D           of time, to restore the sentence of death passed by the trial com1
             on those two accused".
            From the aforesaid authority, it is seen that the Court did not think
      it appropriate to restore the death sentence passed by the trial court
      regard being had to the passage of time.
 E           349. In Akhtar v. State of U.P. (supra), the appellant was found
      guilty of murder of a young girl after committing rape on her and was
      sentenced to death by the learned Sessions Judge and the said sentence
      was confomed by the High Court. The two-Judge Bench referred to
      the decisions in Laxman Naik (supra) and Kamta Tbmri (supra) and
 F    addressed itself whether the case in hand was one of the rarest of the
      rare case for which punishment of death could be awarded. The Cou11
      distinguished the two decisions which have been referred to hereinabove
      and ruled:
             "In the case in hand on examining the evidence of the three
 G           witnesses it appears to us that the accused-appellant has committed
             the murder of the deceased girl not intentionally and with any
             premeditation. On the other hand the accused-appellant found a
             young girl alone in a lonely place, picked her up for committing
             rape; while committing rape and in the process by way of gagging
       '" (1998) 2 sec 372
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             241
                  [DIPAK MISRA, J.]

      the girl has died. The medical evidence also indicates that the         A
      death is on account of asphyxia. In the circumstances we are of
      the considered opinion that the case in hand cannot be held to be
      one of the rarest of rare cases justifying the punishment of death".
        350. In State of Maharashtra v. Baral Fakira Dhbvar 181 , a
three-year old girl was raped and murdered by the accused. The learned        B
trial Judge convicted the accused and awarded the death sentence. The
High Court had set aside the order of conviction and acquitted him for
the offences. This Court, on scrntiny of the evidence, found the accused
guilty of rape and murder. Thereafter, the Court proceeded to deal with
the sentence and, in that context, observed:
                                                                              c
      "Regarding sentence we would have concurred with the Sessions
      Court's view that the extreme penalty of death can be chosen for
      such a crime. However, as the accused was once acquitted by
      the High Court we refrain from imposing that extreme penalty in
      spite of the fact that this case is perilously near the region of
      "rarest of the rare cases", as envisaged by the Constitution Bench D
      in Bachan Singh v. State of Punjab. However, the lesser option
      is not unquestionably foreclosed and so we alter the sentence, in
      regard to the offence under Section 302 IPC, to imprisonment for
      life".
       351. Keeping in view the aforesaid authorities, the Court, in          E
Vasanta Sampat Dupare v. State of Maharashtra 183 , proceeded to
adumbrate what is the duty of the Court when the collective conscience
is shocked because of the crime committed and observed:
      " ... When the crime is diabolical in nature and invites abhorrence
      of the collective, it shocks the judicial conscience and impels it to   F
      react keeping in view the collective conscience, cry of the
      community for justice and the intense indignation the manner in
      which the brntal crime is committed. We are absolutely conscious
      that Judges while imposing sentence, should never be swayed
      away with any kind of individual philosophy and predilections. It       G
      should never have the flavour of Judge-centric attitude or
      perception. It has to satisfy the test laid down in various
      precedents relating to rarest of the rare case. We are also required

'" (2002) 1 sec 622
'" (2015) 1 sec 253                                                           H
242            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A           to pose two questions that has been stated in Maclrhi Singh 's
            case."
             352. In the said case, the Court dwelt upon the manner in which
      the crime was committed and how a minor girl had become a prey of the
      sexual depravity and was injured by the despicable act of the accused to
B     silence the voice so that there would be no evidence. Dealing with the
      same, the Court referred to earlier judgments and held:
            "58. Presently, we shall proceed to dwell upon the manner in which
            the crime was committed. Materials on record clearly reveal that
            the appellant was well acquainted with the inhabitants of the locality
c           and as is demonstrable he had access to the house of the father
            of the deceased and the children used to call him "uncle". He had
            lured the deceased to go with him to have chocolates. It is an act
            of taking advantage of absolute innocence. He had taken the
            deceased from place to place by his bicycle and eventually raped
            her in a brutal manner, as if he had an insatiable and ravenous
D           appetite. The injuries caused on the minor girl are likely to send a
            chill in the spine of the socii;;ty and shiver in the marrows of human
            conscience. He had battered her to death by assaulting her with
            two heavy stones. The injured minor girl could not have shown
            any kind of resistance. It is not a case where the accused had a
 E          momentary lapse. It is also not a case where the minor child had
            died because of profuse bleeding due to rape but because of the
            deliberate cruel assault by the appellant. After the savage act
            was over, the coolness of the appellant is evident, for he washed
            the clothes on the tap and took proper care to hide things. As is
            manifest, he even did not think for a moment the trauma and
 F          torture that was caused to the deceased. The gullibility and
            vulnerability of the four year girl, who could not have nurtured
            any idea about the maladroitly designed biological desires of this
            nature, went with the uncle who extinguished her life-spark. The
            barbaric act of the appellant does not remotely show any concern
G           for the precious life of a young minor child who had really not
            seen life. The criminality of the conduct of the appellant is not
            only depraved and debased, but can have a menacing effect on
            the society. It is calamitous.
            59. In this context, we may fruitfully refer to a passage from
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              243
                 [DIPAK MISRA, J.]

Shyam Narain v. State (NCTof Delhi} 184 , wherein it has been observed         A
as follows:
      "1. The wanton lust, vicious appetite, depravity of senses, mortgage
      of mind to the inferior endowments of nature, the servility to the
      loathsome beast of passion and absolutely unchained carnal desire
      have driven the appellant to commit a crime which can bring in a         B
      'tsunami' of shock in the mind of the collective, send a chill down
      the spine of the society, destroy the civilised stems of the milieu
      and comatose the marrows of sensitive polity."
        In the said case, while describing the rape on an eight-year-old
girl, the Court observed: (Shyam Narain case, SCC p. 88, para 26)              c
      "26 . ... Almost for the last three decades, this Court has been
      expressing its agony and distress pertaining to the increased rate
      of crimes against women. The eight-year-old girl, who was
      supposed to spend time in cheerfolness, was dealt with animal
      passion and her dignity and purity of physical frame was shattered.      D
      The plight of the child and the shock suffered by her can be well
      visualised. The torment on the child has the potentiality to corrode
      the poise and equanimity of any civilised society. The age-old
      wise saying that 'child is a gift of the providence' enters into the
      realm of absurdity. The young girl, with efflux of time, would grow
      with a traumatic experience, an unforgettable shame. She shall           E
      always be haunted by the memory replete with heavy crush of
      disaster constantly echoing the chill air of the past forcing her to a
      state of nightmarish melancholia. She may not be able to assert
      the honour of a woman for no fault of hers."
      Elucidating further, the Court held:                                     F

      "60. In the case at hand, as we find, not only was the rape
      committed in a brutal manner but murder was also committed in a
      barbaric manner. The rape of a minor girl child is nothing but a
      monstrous burial of her dignity in the darkness. It is a crime against
      the holy body of a girl child and the soul of society and such a         G
      crime is aggravated by the manner in which it has been committed.
      The nature of the crime and the manner in which it has been
      committed speaks about its uncommonness. The crime speaks of

"' (2013) 1 sec n
                                                                               H
244      SUPREME COURT REPORTS                             [2017] 6 S.C.R.



A     depravity, degradation and uncommonality. Tt is diabolical and
      barbaric. The crime was committed in an inhuman manner.
      Indubitably, these go a long way to establish the aggravating
      circumstances.
      61. We are absolutely conscious that mitigating circumstances
B     are to be taken into consideration. The learned counsel for the
      appellant pointing out the mitigating circumstances would submit
      that the appellant is in his mid-fifties and there is possibility of his
      reformation. Be it noted, the appellant was aged about forty-seven
      years at the time of commission of the crime. As is noticeable,
      there has been no remorse on the part of the appellant. There are
 c    cases when this Court has commuted the death sentence to Ii fe
      finding that the accused has expressed remorse or the crime was
      not premeditated. But the obtaining fachml matrix when unfolded
      stage by stage would show the premeditation, the proclivity and
      the rapacious desire. The learned counsel would submit that the
 D    appellant had no criminal antecedents but we find that he was a
      history-sheeter and had a number of cases pending against him.
      That alone may not be sufficient. The appalling cruelty shown by
      him to the minor girl child is extremely shocking and it gets
      accentuated, when his age is taken into consideration. Tt was not
      committed under any mental stress or emotional disturbance and
 E    it is difficult to comprehend that he would not commit such acts
      and would be reformed or rehabilitated. As the circumstances
      would graphically depict, he would remain a menace to society,
      for a defenceless child has become his prey. In our considered
      opinion, there are no mitigating circumstances.
 F    62. As we perceive, this case deserves to fall in the category of
      the rarest of rare cases. It is inconceivable from the perspective
      of the society that a married man aged about two scores and
      seven makes a four-year minor innocent girl child the prey of his
      lust and deliberately causes her death. A helpless and defenceless
 G    child gets raped and murdered because of the acquaintance of
      the appellant with the people of the society. This is not only betrayal
      of an individual tmst but destmction and devastation of social tmst.
      Tt is perversity in its enonnity. It irrefragably invites the extreme
      abhorrence and indignation of the collective. It is an anathema to
      the social balance. In our view, it meets the test of the rarest of
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               245
                 [DIPAK MISRA, J.]

      the rare case and we unhesitatingly so hold."                             A
      353. In the said case, a review petition bearing Review Petition
(Criminal) Nos. 637-638 of 2015 was filed which has been recently
dismissed. U.U. Lalit, J., authoring the judgment, has held:
      "19. It is thus well settled, "the Court would consider the cumulative
      effect of both the aspects (namely aggravating factors as well as         B
      n:iitigating circumstances) and it may not be very appropriate for
      the Court to decide the most significant aspect of sentencing policy
      with reference to one of the classes completely ignoring other
      classes under other heads and it is the primary duty of the Court
      to balance the two." Further, "it is always preferred not to fetter       c
      the judicial discretion by attempting to make excessive enumeration,
      in one way or another; and that both aspects namely aggravating
      and mitigating circumstances have to be given their respective
      weightage and that the Court has to strike the balance between
      the two and see towards which side the scale/balance of justice
      tilts." With these principles in mind we now consider the present         D
      review petition.
      20. The material placed on record shows that after the Judgment
      under review, the petitioner has completed Bachelors Preparatory
      Programme offered by the Indira Gandhi National Open University
      enabling him to prepare for Bachelor level study and that he has          E
      also completed the Gandhi Vichar Pariksha and had participated
      in drawing competition organized sometime in January 2016. It is
      asserted that the jail record of the petitioner is without any blemish.
      The matter is not contested as regards Conditions 1, 2, 5, 6 and 7
      as stated in paragraph 206 of the decision in Bachan Singh but            F
      what is now being projected is that there is a possibility of the
      accused being reformed and rehabilitated. Though these attempts
      on part of the petitioner are after the judgment under review, we
      have considered the material in that behalf to see if those
      circumstances warrant a different view. We have given anxious
      consideration to the material on record but find that the aggravating     G
      circumstances namely the extreme depravity and the barbaric
      manner in which the crime was committed and the fact that the
      victim was a helpless girl of four years clearly outweigh the
      mitigating circumstances now brought on record. Having taken
      an overall view of the matter, in our considered view, no case is
                                                                                H
246            SUPREME COURT REPORTS                           (2017] 6 S.C.R.



A           made out to take a different view in the matter. We, therefore,
            affirm the view taken in the Judgment under review and dismiss
            the present Review Petition."
             354. The mitigating factors which have been highlighted before
      us on the basis of the affidavits filed by the appellants pertain to the
B     strata to which they belong, the aged parents, marital status and the
      young children and the suffering they would go through and the calamities
      they would face in case of affirmation of sentence, their conduct while
      they are in custody and the reformative path they have chosen and their
      transformation and the possibility ofrefo1mation. That apart, emphasis
      has been laid on their young age and rehabilitation.
 c
             355. Now, we shall focus on the nature of the crime and manner
      in which it has been commited. The submission of Mr. Luthra, learned
      senior counsel, is that the present case amounts to devastation of social
      trust and completely destroys the collective balance and invites the
      indignation of the society. It is submitted by him that that a crime of this
 D    nature creates a fear psychosis and definitely falls in the category of
      rarest of the rare cases.
          356. It is necessaiy to state here that in the instant case, the
   brutal, barbaric and diabolic nature of the crime is evincible from the
   acts committed by the accused persons, viz., the assault on the informant,
 E PW- I with iron rod and tearing off his clothes; assaulting the informant
   and the deceased with hands, kicks and iron rod and robbing them of
   their personal belongings like debit cards, ring, infonnant's shoes, etc.;
   attacking the deceased by forcibly disrobing her and committing violent
   sexual assault by all the appellants; their bri.1tish behaviour in having
 F anal sex with the deceased and forcing her to perform oral sex; injuries
   on the body of the deceased by way of bite marks (I 0 in number); and
   insertion ofrod in her private parts that, inter alia, caused perforation of
   her intestine which caused sepsis and, ultimately, led to her death. The
   medical history of the prosecutrix (as proved in the record in Ex. PW-
   50/ A and Ex. PW-50) demonstrates that the entire intestine of the
 G prosecutrix was perforated and splayed open due to the repeated insertion
   of the rod and hands; and the appellants had pulled out the internal organs
   of the prosecutrix in the most savage and inhuman manner that caused
   grave injuries which ultimately annihilated her life. As has been
   established, the prosecutrix sustained various bite marks which were
 H observed on her face, lips, jaws, near ear, on the right and left breast, left
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                           247
                  [DTPAK MISRA, J.]

upper arm, right lower limb, right inner groin, right lower thigh, left thigh A
lateral, left lower anterior and genitals. These acts itself demonstrate
the mental perversion and inconceivable brntality as caused by the
appellants. As further proven, they threw the informant and the deceased
victim on the road in a cold winter night. After throwing the informant
and the deceased victim, the convicts tried to nm the bus over them so
                                                                               B
that there would be no evidence against them. They made all possible
efforts in destroying the evidence by, inter alia, washing the bus and
burning the clothes of the deceased and after performing the gruesome
act, they divided the loot among themselves. As we have narrated the
incident that has been corroborated by the medical evidence, oral
testimony and the dying declarations, it is absolutely obvious that the       c
accused persons had found an object for enjoyment in her and, as is
evident, they were obsessed with the singular purpose sans any feeling
to ravish her as they liked, treat her as they felt and, if we allow ourselves
to say, the gross sadistic and beastly instinctual pleasures came to the
forefront when they, after ravishing her, thought it to be just a matter of D
routine to throw her alongwith her friend out of the bus and crush them.
The casual manner with which she was treated and the devilish manner
in which they played with her identity and dignity is humanly inconceivable.
It sounds like a story from a different world where humanity has been
treated with irreverence. The appetite for sex, the hunger for violence,
the position of the empowered and the attitude of perversity, to say the E
least, are bound to shock the collective conscience which knows not
what to do. It is manifest that the wanton lust, the servility to absolutely
unchained carnal desire and slavery to the loathsome beastility of passion
rnled the mindset of the appellants to commit a crime which can summon
with immediacy "tsunami" of shock in the mind of the collective and
                                                                               F
destroy the civilised marrows of the milieu in entirety.
       357. When we cautiously, consciously and anxiously weigh the
aggravating circumstances and the mitigating factors, we are compelled
to arrive at the singular conclusion that the aggravating circumstances
outweigh the mitigating circumstances now brought on record. Therefore,
we conclude and hold that the High Court has correctly confinned the          G
death penalty and we see no reason to differ with the same.
      358. Before we part with the cas_e, we are obligated to record our
unreserved appreciation for the assistance rendered by Mr. Raju
Ramachandran and Mr. Sanjay R. Hegde, learned amicus curiae
                                                                              H
248             SUPREME COURT REPORTS                            [2017) 6 S.C.R.



A     appointed by the Court. We must also record our uninhibited appreciation
      for Mr. M.L. Sharma and Mr. A.P. Singh, learned counsel for the
      appellants, for they, keeping the tradition of the Bar, defended the
      appellants at every stage.
            359. In view of our preceding analysis, the appeals are bound to
B     pave the path of dismissal, and accordingly, we so direct.
            R. BANUMATHI, J. I. I have gone through the judgment of
      my esteemed Brother Justice Dipak Misra. r entirely agree with the
      reasoning adopted by him and the conclusions arrived at. However, in
      view of the significant issues involved in the matter, in the light of settled
c     norms of appreciation of evidence in rape cases and the role of Judiciary
      in addressing crime against women, I would prefer to give my additional
      reasoning for concurrence.
              2. Honesty, pride, and self-esteem are crucial to the personal
      freedom of a woman. Social progress depends on the progress of
D     everyone. Following words of the father of our nation must be noted at
      all times:
             "To call woman the weaker sex is a libel; it is man :S injustice
            to woman. If by strength is meant moral power, then woman is
            immeasurably man :S superior. Has she not greater intuition,
 E           is she not more self-sacrificing, has she not greater powers
            of endurance, has she not greater courage? Without he1; man
            could not be. If non-violence is the law of our being, the
            future is with woman. Who can make a more effective appeal
             to the heart than woman?"

 F           3. Crimes against women - an area of concern: Over the
      past few decades, legal advancements and policy reforms have done
      much to protect women from all sources of violence and also to sensitize
      the public on the issue of protection of women and gender justice. Still,
      the crimes against women are on the increase. As per the annual report
      ofNational Crime Records Bureau titled, 'Crime in India 2015' available
 G    at http://ncrb.nic.in/StatePublications/CII/CII2015/FILES I.
      Compendium - 15.11.16.pdf, a total of3,27,394 cases of crime against
      women were reported in the year 2015, which shows an increase of
      over 43% in crime against women since 2011, when 2,28,650 cases
      were reported. A percentage change of 110.5% in the cases of crime
      against women has been witnessed over the past decade (2005 to 2015 ),
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               249
                  [R. BANUMATHl, J.]

meaning thereby that crime against women has more than doubled in a              A
decade. An overall crime rate under the head, 'crime against women'
was reported as 53.9% in 2015, with Delhi UT at the top spot.
        4. As per the National Crime Records Bureau, a total of 34,651
cases of rape under Section 376 lPC were registered during 2015
(excluding cases under the Protection of Children from Sexual Offences B
Act, 2012). An increasing trend in the incidence of rape has been observed
during the period 2011-2014. These cases have shown an increase of
9.2% in the year 2011 (24,206 cases) over the year2010(22,172 cases),
an increase of 3.0% in the year 2012 (24,923 cases) over 2011, with
further increase of 35.2% in the year 2013 (33,707 cases) over 2012
and 9.0% in 2014 (36,735 cases) over 2013. A decrease of 5.7% was
                                                                           c
reported in 2015 (34,651 cases) over 2014 (36,735 cases). 12.7% (4,391
out of34,651 cases) of total reported rape cases in 2015 were reported
in Madhya Pradesh followed by Maharashtra (4, 144 cases), Raj asthan
(3,644 cases), Uttar Pradesh (3,025 cases) and Odisha (2,251 cases)
accounting for 11.9%, 10.5%, 8.7% and 6.5% of total cases respectively. D
NCT of Delhi reported highest crime rate of23. 7% followed by Andaman
& Nicobar Islands at 13.5% as compared to national average of 5.7%.
ln order to combat increasing crime against women, as depicted in the
statistics of National Crime Records Bureau, the root of the problem
must be studied in depth and the same be remedied through stringent
legislation and other steps. ln order to secure social order and security, E
it is imperative to address issues concerning women, in particular crimes
against women on priority basis.
       5. Stringent legislation and punishments alone may not be sufficient
for fighting increasing crimes against women. In our tradition bound
society, certain attitudinal change and change in the mind-set is needed         F
to respect women and to ensure gender justice. Right from childhood
years' children ought to be sensitized to respect women. A child should
be taught to respect women in the society in the same way as he is
taught to respect men. Gender equality should be made a part of the
school curriculum. The school teachers and parents should be trained,            G
not only to conduct regular personality building and skill enhancing exercise,
but also to keep a watch on the actual behavioural pattern of the children
so as to make them gender sensitized. The educational institutions,
Government institutions, the employers and all concerned must take steps
to create awareness with regard to gender sensitization and to respect
                                                                                 H
250            SUPREME COURT REPORTS                        [2017) 6 S.C.R.


A women. Sensitization of the public on gender justice through TV, media
  and press should be welcomed. On the practical side, few of the
  suggestions are worthwhile to be considered. Banners and placards in
  the public transport vehicles like autos, taxis and buses etc. must be
  ensured. Use of street lights, illuminated bus stops and extra police patrol
  during odd hours must be ensured. Police/secmity guards must be posted
B
  at dark and lonely places like parks, streets etc. Mobile apps for
  immediate assistance of women should be introduced and effectively
  maintained. Apart from effective implementation of the various legislation
  protecting women, change in the mind set of the society at large and
  creating awareness in the public on gender justice, would go a long way
c to combat violence against women.
            6. Factual Matrix: The entire factual matrix of the concerned
      horrendous incident has already been fafrly set out in the judgment of
      my esteemed brother Justice Dipak Misra, the High Court and the trial
      Court. Suffice only to briefly recapitulate the facts, for my reference
D     purpose and for completion.
          7. In the wintry night of 16.12.2012, when the entire Delhi was
  busy in its day-to-day affair, embracing the joy of year-end, two youths
  were bravely struggling to save their dignity and life. It is a case of
  barbaric sexual violence against women, in fact against the society at
E large, where the accused and juvenile in conflict with law picked up a 23
  year old physiotherapy student and her male friend (PW-1) accompanying
  her, from a busy place in Delhi-Munirka Bus stop and subjected them to
  heinous offences. The accused gang-raped the prosecutrix in the moving
  bus and completely ravished her in front of her helpless friend, Awninder
  Pratap (PW-I). The accused, on satisfaction of their lust, threw both the
  victims, half naked, outside the bus, in December cold near Mahipalpur
  flyover. The prosecutrix and PW-I were noticed in miserable condition
  near Mahipalpur flyover, where they were thrown, by PW-72 Raj Kumar,
  who was on patrolling duty that night in the area and PW-73 Ram Chandar,
  Head Constable, rnshed the prosecutrix and PW-I to Safdarjung Hospital
G owing to the need of immediate medical attention. Law was set in motion
  by the statement of PW-1, which was recorded after giving primary
  medical treatment to him. Statement/Dying declaration of the prosecutrix
  was also recorded by PW-49 Doctor, PW-27 Sub-Divisional Magistrate
  and PW-30 Metropolitan Magistrate. After intensive care and treatment
  in ICU in Delhi, the victim was airlifted to a hospital in Singapore by an
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                         251
                  [R. BANUMATHl, J.]

air-ambulance where she succumbed to her injuries on 29.12.2012.           A
        8. The incident shocked the nation and generated public rage. A
Committee headed by Justice J.S. Verma, Former Chief Justice oflndia
was constituted to suggest amendments to deal with sexual offences
more sternly and effectively in future. The suggestions of the Committee
led to the enactment of Criminal Law (Amendment) Act, 2013 which, B
inter alia, brought in substantive as well as procedural refonns in the
core areas of rape Jaw. The changes brought in, inter a/ia, can broadly
be titled as under:- (i) Extension of the definition of the offence of rape
in Section 375 lPC; (ii) Adoption of a more pragmatic approach while
dealing with the issue of consent in the offence of rape; and (iii)
Introduction of harsher penalty commensurating with the gravity of C
offence. These subsequent events though not relevant for the purpose
of this judgment, I have referred to it for the sake of factual completion.
        9. Both the courts below, by recording concmTent findings, have
 found all the accused guilty of the offences they were charged with and
owing to the gravity and manner of committing the heinous offences         D
 held that the acts of the accused shake the conscience of the society
falling within the categ01y of rarest of rare cases and awarded death
penalty. Briefly put, the courts below have found that the prosecution
 has established the guilt of the accused inter alia on the following:
      I. Three dying declarations of the prosecutrix, complementing        E
      each other, corroborated by medical evidence and other direct as
      well as circumstantial evidence.
      2.Testimony of eye witness - PW- I, corroborated by circumstantial
      evidence as well as scientific evidence.
                                                                           F
      3. Recovery of the bus in which incident took place and recovery
      of the concerned iron rod therefrom, completing the chain of
      circumstantial evidence, by proof of scientific evidence like DNA
      analysis, finger print analysis etc.
      4. Airest oft he accused and their identification by PW-1, recovery G
      ofarticles belonging to the prosecutrix and PW- I from the accused,
      pursuant to their disclosure statement, substantiated by proof of
      DNA analysis.
      5. Conspiracy of the accused in the commission of offence.

                                                                           H
252             SUPREME COURT REPORTS                            [2017] 6 S.C.R.


.A             10. While concurring with the majority, I have recorded my
      reasoning by considering the evidence on record in the light of settled
      legal principles and also analysed the justifiability of the punishment
      awarded to the accused. For proper appreciation of evidence, it is apposite
      to first refer to the settled principles and norms of appreciation of evidence
      of prosecutrix and other evidence in a rape case.
B
             11. Duty of court in appreciation of evidence while dealing
      with cases of rape: Crime against women is an unlawful intrusion of
      her right to privacy, which offends her self-esteem and dignity. Expressing
      concern over the increasing crime against women, in State ofP1111jab v.
      Gurmit Si11glt a11d Others ( 1996) 2 SCC 384, this Court held as under:-
 c
             "21. Oflate, crime against women in general and rape in particular
             is on the increase. It is an irony that while we are celebrating
             woman's rights in all spheres, we show little or no conce!11 for her
             honour. It is a sad reflection on the attitude of indifference of the
             society towards the violation of human dignity of the victims of
 D           sex crimes. We must remember that a rapist not only violates the
             victim's privacy and personal integrity, but inevitably causes serious
             psychological as well as physical harm in the process. Rape is not
             merely a physical assault - it is often destructive of the whole
             personality of the victim. A murderer destroys the physical body
 E           of his victim, a rapist degrades the very soul of the helpless female.
             The courts, therefore, shoulder a great responsibility while
             trying an accused on charges of rape. They must deal with
             such cases with utmost sensitivity. The courts should
             examine the broader probabilities of a case and not get
             swayed by minor contradictions or insignificant
 F           discrepancies in the statement of the prosecutrix, which
             are not of a fatal nature, to throw out an otherwise reliable
             prosecution case ....... " [Emphasis supplied]
             12. The above principle of law, declared in Gurmeet Si11gh's
      case is reiterated in various cases viz., State ofRajastha11 v. N.K. The
 G    Accused (2000) 5 SCC 30; State of H.P. v. Lekh Raj a11d Another
      (2000) I SCC 247; State of H.P. v. Asha Ram (2005) 13 SCC 766.
             13. Clause (g) of sub-section (2) of Section 376 IPC (prior to
      2013 Amendment Act 13 of 2013) deals with cases of gang rape. In
      order to establish an offence under Section 376(2)(g) IPC, read with
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            253
                  [R. BANUMATHI, J.]

Explanation I thereto, the prosecution must adduce evidence to indicate A
that more than one accused had acted in concert and in such an event, if
rape is committed by even one, all the accused are guilty, irrespective of
the fact that only one or more of them had actually committed the act.
Section 376(2)(g) read with Explanation /thus embodies a principle of
joint liability. But so far as appreciation of evidence is concerned, the
                                                                           B
principles concerning the cases falling under sub-section( 1) of Section
376 IPC apply.
       14. In a case ofrape, like other criminal cases, onus is always on
the prosecution to prove affirmatively each ingredients of the offence.
The prosecution must discharge this burden of proof to bring home the
guilt of the accused and this onus never shifts. In Narender Kumar v.         c
State (NCT of Delhi) (2012) 7 SCC I 71, it was held as under:-
      "29. However, even in a case of rape, the onus is always on the
      prosecution to prove, affirmatively each ingredient of the offence
      it seeks to establish and such onus never shifts. It is no part of the
      duty of the defence to explain as to how and why in a rape case D
      the victim and other witnesses have falsely implicated the accused.
      The pmsecution case has to stand on its own legs and cannot
      take support from the weakness of the case of defence ......... .
      There is an initial presumption of innocence of the accused artd
      the prosecution has to bring home the offence against the accused E
      by reliable evidence. The accused is entitled to the benefit of
      every reasonable doubt."
        15. At the same time while dealing with cases of rape, the Court
must act with utmost sensitivity and appreciate the evidence of prosecutrix
in lieu of settled legal principles. Courts while trying an accused on the    F
charge of rape, must deal with the case with utmost sensitivity, examining
the broader probabilities of a case and it should not be swayed by minor
contradictions and discrepancies in appreciation of evidence of the
witnesses which are not of a substantial character. It is now well-settled
that conviction for an offence of rape can be based on the sole testimony
of the prosecutrix corroborated by medical evidence and other                 G
circumstantial evidence such as the report of chemical examination,
scientific examination etc., if the same is found natural and trustworthy.
      16. Persisting notion that the testimony of victim has to be
corroborated by other evidence must be removed. To equate a rape
                                                                              H
254            SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A     victim to an accomplice is to add insult to womanhood. Ours is a
      conservative society and not a permissive society. Ordinarily a woman,
      more so, a young woman will not stake her reputation by levelling a false
      charge, concerning her chastity. In State of Karnataka v. Krishnappa,
      (2000) 4 sec 75, it was held as under:-
B           "15. Sexual violence apart from being a dehumanising act is an
            unlawful intrusion of the right to privacy and sanctity of a female.
            It is a serious blow to her supreme honour and offends her self-
            esteem and dignity - it degrades and humiliates the victim and
            where the victim is a helpless innocent child, it leaves behind a
            traumatic experience. The courts are, therefore, expected to deal
c           with cases of sexual crime against women with utmost sensitivity.
            Such cases need to be dealt with sternly and severely...... .
            16. A socially sensitised Judge, in our opinion, is a better
            statutory armour in cases of crime against women than long
            clauses of penal provisions, containing complex exceptions
 D          and provisos. [emphasis supplied]"
             17. There is no legal compulsion to look for corroboration of the
      prosecutrix 's testimony unless the evidence of the victim suffers from
      serious infirmities, thereby seeking corroboration. In Bharwada
      Bhogi11bllai Hirjibhai v. State of Gujarat, ( 1983) 3 SCC 217, it was
 E    held as under:-
            "9. In the Indian setting, refusal to act on the testimony ofa victim
            of sexual assault in the absence of corroboration as a rule, is
            adding insult to injury. Why should the evidence of the girl or the
            woman who complains of rape or sexual molestation be viewed
 F          with the aid of spectacles fitted with lenses tinged with doubt,
            disbelief or suspicion? To do so is to justify the charge of male
            chauvinism in a male dominated society. We must analyze the
            argument in support of the need for corroboration and subject it to
            relentless and remorseless cross-examination. And we must do
 G          so with a logical, and not an opinionated, eye in the light of
            probabilities with our feet firmly planted on the soil oflndia and
            with our eyes focussed on the Indian horizon. We must not be
            swept off the feet by the approach made in the western world
            which has its own social milieu, its own social mores, its own
            permissive values, and its own code oflife. Corroboration may be
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               255
                [R. BANUMATHI, J.]

      considered essential to establish a sexual offence in the backdrop        A
      of the social ecology of the western world. It is whollymmecessary
      to import the said concept on a turnkey basis and to transplant it
      on the Indian soil regardless of the altogether different atmosphere,
      attitudes, mores, responses of the Indian society, and its profile.
      The identities of the two worlds are different. ........ .
                                                                                B
      10. By and large these factors are not relevant to India, and the
      Indian conditions. Without the fear of making too wide a statement,
      or of overstating the case, it can be said that rarely will a girl or a
      woman in India make false allegations of sexual assault on account
      of any such factor as has been just enlisted. The statement is
      generally true in the context of the urban as also rural society. lt is
                                                                                c
      also by and large true in the context of the sophisticated, not so
      sophisticated, and unsophisticated society. Only very rarely can
      one conceivably come across an exception or two and that too
      possibly from amongst the urban elites. Because (/) A girl or a
      woman in the tradition-bound non-permissive society oflndia would         D
      be extremely reluctant even to admit that any incident which is
      likely to reflect on her chastity had ever occurred. (2) She would
      be conscious of the danger of being ostracized by the society or
      being looked down by the society including by her own family
      members, relatives, friends, and neighbours. (3) She would have
                                                                                E
      to brave the whole world. (4) ........... .
      11. . ....... On principle the evidence of a victim of sexual
      assault stands on par with evidence of an injured witness.
      Just as a witness who has sustained an injury (which is not
      shown or believed to be self-inflicted) is the best witness
      in the sense that he is least likely to exculpate the real                F
      offender, the evidence of a victim of a sex offence is entitled
      to great weight, absence of corroboration notwithstanding.
      And while corroboration in the form of eyewitness account
      of an independent witness may often be forthcoming in
      physical assault cases, such evidence cannot be expected                  G
      in sex offences, having regard to the very nature of the
      offence ........ [emphasis supplied]"
       It was further held in Bharwada Bhoginbhai Hirjibhai (supra)
that ifthe evidence of the victim does not suffer from any basic infirmity
and the "probabilities-factor" does not render it unworthy of credence,         H
256             SUPREME COURT REPORTS                              [2017] 6 S.C.R.



A     there is no reason to insist on corroboration except corroboration by the
      medical evidence. The same view was taken in Krishan Lal v. State of
      Haryana (1980) 3 SCC 159.
              18. It is well-settled that conviction can be based on the sole
      testimony of the prosecutrix if it is implicitly reliable and there is a ring of
B     truth in it. Corroboration as a condition for judicial reliance on the testimony
      of a prosecutrix is not requirement of law but a guidance of pmdence
      under given circumstances. In Rajinder alias Raju v. State ofHimacha/
      Pradesh, (2009) 16 SCC 69, it was held as under:-
             "19. In the context oflndian culture, a woman-victim of sexual
 c           aggression-would rather suffer silently than to falsely implicate
             somebody. Any statement of rape is an extremely humiliating
             experience for a woman and until she is a victim of sex crime, she
             would not blame anyone but the real culprit. While appreciating
             the evidence of the prosecutrix, the courts must always keep in
             mind that no self-respecting woman would put her honour at stake
 D           by falsely alleging commission of rape on her and therefore,
             ordinarily a look for corroboration of her testimony is unnecessary
             and uncalled for. But for high improbability in the prosecution case,
             the conviction in the case of sex crime may be based on the sole
             testimony of the prosecutrix. It has been rightly said that
 E           corroborative evidence is not an imperative component of judicial
             credence in every case of rape nor the absence of injuries on the
             private parts of the victim can be construed as evidence of
             consent."
           19. In Raju and Others v. State of Madhya Pradesh (2008) 15
 F    SCC 133, it was held as under:-
             "10 •....... that ordinarily the evidence of a prosecutrix should not
             be suspected and should be believed, more so as her statement
             has to be evaluated on a par with that of an injured witness and if
             the evidence is reliable, no corroboration is necessary...... .
 G           11. It cannot be lost sight of that rape causes the greatest distress
             and humiliation to the victim but at the same time a false allegation
             of rape can cause equal distress, humiliation and damage to the
             accused as well. The accused must also be protected against the
             possibility of false implication, particularly where a large number
             of accused are involved. It must, further, be borne in mind that the
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                          257
                  [R. BANUMATHI, J.]

      broad principle is that an injured witness was present at the time    A
      when the incident happened and that ordinarily such a witness
      would not tell a lie as to the actual assailants, but there is no
      presumption or any basis for assuming that the statement of such
      a witness is always correct or without any embellishment or
      exaggeration."
                                                                            B
      20. In State of H.P. v. Asha Ram (2005) 13 SCC 766, this Court
highlighted the importance of, and the weight to be attached to, the
testimony of the prosecutrix. In para (5), it was held as under:
      "5......... It is now a well-settled principle oflaw that conviction
      can be founded on the testimony of the prosecutrix alone unless c
      there are compelling reasons for seeking corroboration. The
      evidence of a prosecutrix is more reliable than that of an injured
      witness. The testimony of the victim of sexual assault is vital,
      unless there are compelling reasons which necessitate looking for
      corroboration of her statement, the courts should find no difficulty
      in acting on the testimony of a victim of sexual assault alone to D
      convict an accused where her testimony inspires confidence and
      is found to be reliable. It is also a well-settled principle oflaw that
      corroboration as a condition for judicial reliance on the testimony
      of the prosecutrix is not a requirement of law but a guidance of
      prndence under the given circumstances. The evidence of the E
      prosecutrix is more reliable than that of an injured witness. Even
      minor contradictions or insignificant discrepancies in the statement
      of the prosecutrix should not be a ground for throwing out an
      otherwise reliable prosecution case."
       21. As held in the case of State of Punjab v. Ramdev Singh           F
(2004) 1 SCC 421, there is no rnle of law that the testimony of the
prosecutrix cannot be acted upon without corroboration in material
particulars. She stands at a higher pedestal than an injured witness.
However, ifthe Court of facts finds it difficult to accept the version of
the prosecutrix on its face value, it may search for evidence, direct or
circumstantial, which would lend assurance to her testimony. The above      G
judgment of Ramdev Singh (supra) has been approvingly quoted in
State of U.P. v. Munshi (2008) 9 SCC 390.
      22. In a catena of decisions, this Court has held that conviction
can be based on the sole testimony of the prosecutrix, provided it is
                                                                            H
258            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A     natural, trustworthy and worth being relied upon vide State of H.P. v.
      Gian Chand (2001) 6 SCC 71, State ofRajasthan v. N.K. The Accused
      (2000) 5 SCC 30; State ofH.P. v. Lekh Raj and Another (2000) I SCC
      247, Wahid Khan v. State ofMadhya Pradesh (20 I 0) 2 SCC 9, Dinesh
      Jaiswal v. State of Madhya Pradesh (20 I 0) 3 SCC 232; Om Prakash
      v. State of Haryana (2011) 14 SCC 309.
B
            23. Observing that once the statement of the prosecutrix inspires
      confidence, conviction can be based on the solitary evidence of the
      prosecutrix and that corroboration of testimony of a prosecutrix is not a
      requirement of law but only a rule of prudence, in Narender Kumar's
      case (supra), this Court held as under:-
c
            "20. It is a settled legal proposition that once the statement of the
            prosecutrix inspires confidence and is accepted by the com1 as
            such, conviction can be based only on the solitary evidence of the
            prosecutrix and no corroboration would be required unless there
            are compelling reasons which necessitate the court for
D           corroboration of her statement. Corroboration of testimony of the
            prosecutrix as a condition for judicial reliance is not a requirement
            of law but a guidance of prudence under the given facts and
            circumstances. Minor contradictions or insignificant discrepancies
            should not be a ground for throwing out an otherwise reliable
 E          prosecution case."
            21. A prosecutrix complaining of having been a victim of the
            offence of rape is not an accomplice after the crime. Her testimony
            has to be appreciated on the principle of probabilities just as the
            testimony of any other witness; a high degree of probability having
 F          been shown to exist in view of the subject-matter being a criminal
            charge. However, if the court finds it difficult to accept the
            version of the prosec11trix on its face value, it may search for
            evidence, direct or substantial (sic circumstantial), which may
            lend assurance to her testimony. (Vide Vima/ Suresh Kamb/e v.
            Chaluverapinake Apa! S.P (2003) 3 SCC 175 and Vishnu v.
G           State of Maharashtra (2006) I SCC 283.)"
             24. Courts should not attach undue importance to discrepancies,
      where the contradictions sought to be brought up from the evidence of
      the prosecutrix are immaterial and of no consequence. Minor variations
      in the testimony of the witnesses are often the hallmark of tmth of the
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            259
                 [R. BANUMATHI, J.]

  testimony. Trivial discrepancies ought not to obliterate an otherwise A
. acceptable evidence. Due to efflux of time, there are bound to be minor
  contradictions/discrepancies in the statement of the prosecutrix but such
  minor discrepancies and inconsistencies are only natural since wh;n
  tmth is sought to be projected through human, there are bound to be
  certain inherent contradictions. But as held in Om Prakash v. State of
                                                                            8
  U.P. (2006) 9 SCC 787, the Court should examine the broader probabilities
  of a case.
       25. There is no quarrel over the proposition that the evidence of
the prosecutrix is to be believed by examining the broader probabilities
of a case. But where there are serious infirmities and inherent
inconsistencies in evidence; the prosecutrix making deliberate                c
improvement on material point with a view to mle out consent on her
part, no reliance can be placed upon thelestimony of the prosecutrix. In
Tameezuddin v. State (NCT ofDelhi), (2009) 15 SCC 566, it was held
as under:-
       "9. It is tme that in a case of rape the evidence of the prosecutrix   D
       must be given predominant consideration, but to hold that this
       evidence has to be accepted even if the story is improbable and
       belies logic, would be doing violence to the very principles which
       govern the appreciation of evidence in a criminal matter. We are
       of the opinion that the story is indeed improbable."                   E
     The same view was taken in Suresh N. Blmsare v. State of
Maharashtra (1999) 1 SCC 220 and Jai Krishna Manda/ v. State of
Jharkhand (2010) 14 sec 534.
      26. On the anvil of the above principles, let us test the case of
prosecution and version of the prosecutrix as depicted in her dying           F
declaration.
       27. Dying Declaration: Prosecution relies upon three dying
declarations of the victim:- (i) Statement of victim recorded by PW-49
Dr. Rashmi Ahuja (Ex. PW-49/A) when the victim was brought to
Safdarjung Hospital and admitted in the Gynae casualty at about 11: 15        G
p.m. on 16.12.2012- the victim gave a brief account of the incident
stating that she went to a movie with her friend Awnindra (PW-I) and
that after the movie, they together boarded the bus from Munirka bus
stop in which she was gang-raped and that she was thrown away from
the moving bus thereafter, along with her friend; (ii) Second dying           H
260            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A     declaration recorded by PW-27 Usha Chaturvedi, SDM (Ex. PW-27I A)
      on 21.12.2012 at about 09:00 p.m. - the victim gave the details of the
      entire incident specifying the role of each accused: gang-rape, unnatural
      sex committed on her, the injuries inflicted by accused on her vagina and
      rectum, by use of iron rod and by insertion of hands in her private parts;
      description of the bus, robbery and lastly throwing both the victim and
B
      also her boyfriend out of the moving bus in naked condition near
      Mahipalpur flyover; (iii) Third dying declaration recorded by PW-30
      Pawan Kumar, Metropolitan Magistrate (Ex.PW-30/D) on 25.12.2012
      at I :00 PM at ICU, Safdarjung Hospital by putting questions in multiple
      choice and recording answers through such questions by gestures or
 c    writings - the victim wrote the names of the accused in the third dying
      declaration. Evidence of PW-28 Dr. Rajesh Rastogi and the certificate
      (Ex.PW-28/A) given by him establishes that the victim was in a fit mental
      condition to give the statement through gestures. Furthermore, PW-75
      Asha Devi, mother of the victim in her cross-examination also deposed
      that she had a talk with her daughter on the night of25.12.2012, which
D
      shows that the victim was conscious, communicative and oriented.
      Contentions urged, assailing the fit mental condition of the victim have
      no merit.
             28. With regard to the contention that there were improvements
      in the dying declarations, I am of he view, the victim was gang-raped
 E    and iron rod was inserted in her private parts in the incident and the
      victim must have been pushed to deep emotional crisis. Rape deeply
      affects the entire psychology of the woman and humiliates her, apart
      from leaving her in a trauma. The testimony of the rape victim must be
      appreciated in the background of the entire case and the trauma which
 F    the victim had undergone. As a matter of record, PW-49 Dr. Rash mi
      Ahuja, at around 11: 15 p.m. on the night of 16.12.2012, had attended to
      the prosecutrix as soon as she was brought to the hospital and had
      prepared casualty/OPD Card of the prosecutrix            (Ex. PW-49/A), as
      well as her MLC (Ex. PW-49/B). At that time, PW-49 had found her
      cold and clammy due to vaso-constriction. The prosecutrix was found
 G    shivering, for which she was administered IV line and warm saline in
      order to stabilize her pulse and BP. When the victim was in such a
      condition, the victim cannot be expected to give minute details of the
      occurrence like overt act played by the accused, insertion of iron rod
      etc. There is no justification for blowing up such omission out ofproportion
 H
      MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             261
                    [R. BANUMATHl, J.]

 in the statement recorded by PW-49 Dr. Rashmi Ahuja and doubt the               A
 same. ln the occurrence, physical and emotional balance of the victim
 must have been greatly disturbed. Startled by the incident, whatever the
 victim was able to momentarily recollect, she narrated to PW-49 and
 placed in that position non-mention of minute details in Ex.PW-49/ A
 cannot be termed as a material omission.
                                                                                 B
         29. Dying declaration is a substantial piece of evidence provided
  it is not tainted with malice and is not made in an unfit mental state.
  Each case of dying declaration has to be considered in its own facts and
· circumstances in which it is made. However, there are some well-
  known tests to ascertain as to whether the statement was made in
  reference to cause of death of its maker and whether the same could be         c
  relied upon or not. The Court also has to satisfy as to whether the
  deceased was in a fit mental state to make the statement. The Court
  must scrutinize the dying declaration carefully and ensure that the
  declaration is not the result of tutoring, prompting or imagination. Once
  the Court is satisfied that the declaration is true and voluntary, it can      D
  base its conviction without any further corroboration. 1t cannot be laid
  down as an absolute rule of law that the dying declaration cannot form
  the sole basis of conviction unless it is corroborated. The rule requiring
  corroboration is merely a rule of prudence. That the deceased had the
  opportunity to observe and identify the assailants and was in a fit state to
  make the declaration. [K. Ramachandra Reddy and Anr. v. Public                 E
  Prosecutor (1976) 3 SCC 618]
       30. The principles governing dying declarations have been
 exhaustively laid down in several judicial pronouncements. Tn Panibe11
 (Smt.) v. State of Gujarat, ( 1992) 2 SCC 4 74, this Comt referred to a
 number of judgments laying down the principles governing dying                  F
 declaration. 1n this regard, Tfind it apposite to quote the following from
 Paniben (supra) as under:-
        "18. Though a dying declaration is entitled to great weight, it is
        worthwhile to note that the accused has no power of cross-
        examination. Such a power is essential for eliciting the trnth as an G
        obligation of oath could be. This is the reason the Court also insists
        that the dying declaration should be of such a nature as to inspire
        full confidence of the Court in its correctness. The Court has to
        be on guard that the statement of deceased was not as a result of
        either tutoring, prompting or a product of imagination. The Court H
262      SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A     must be further satisfied that the deceased was in a fit state of
      mind after a clear opportunity to observe and identify the assailants.
      Once the Court is satisfied that the declaration was true and
      voluntary, undoubtedly, it can base its conviction without any further
      corroboration. It cannot be laid down as an absolute rule of law
      that the dying declaration cannot form the sole basis of conviction
 B
      unless it is corroborated. The rule requiring corroboration is merely
      a rule of prudence. This Court has laid down in several judgments
      the principles governing dying declaration, which could be summed
      up as under:
         (i) There is neither rule of law nor of prudence that dying
 c    declaration cannot be acted upon without corroboration. (Munnu
      Raja v. State of MP. (1976) 3 SCC I04)
         (ii) If the Court is satisfied that the dying declaration is true
      and voluntary it can base conviction on it, without corroboration.
      (State of U.P. v. Ram Sagar Yadav ( 1985) I SCC 522; Ramawati
 D    Devi v. State of Bihar ( 1983) 1 SCC 211 ).
         (iii) This Comt has to scrntinise the dying declaration carefully
      and must ensure that the declaration is not the result of tutoring,
      prompting or imagination. The deceased had opportunity to observe
      and identify the assailants and was in a fit state to make the
 E    declaration. (K. Ramachandra Reddy v. Public Prosecutor
      (1976) 3 sec 618).
         (iv) Where dying declaration is suspicious it should not be acted
      upon without corroborative evidence. (Rasheed Beg v. State of
      MP. (1974) 4 sec 264)
 F
          (v) Where the deceased was unconscious and could never
      make any dying declaration the evidence with regard to it is to be
      rejected. (Kake Singh v. State of MP. ( 1981) Supp. SCC 25)
          (vi) A dying declaration which suffers from infirmity cannot
      form the basis of conviction. (Ram Manorath v. State of U.P
 G
      (1981) 2 sec 654)
         (vii) Merely because a dying declaration does not contain the
      details as to the occurrence, it is not to be rejected. (State of
      Maharashtra v. Krishnamurti Laxmipati Naidu ( 1980) Supp.
      SCC455)
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               263
                [R. BANUMATHI, J.]

         (viii) Equally, merely because it is a brief statement, it is not be   A
      discarded. On the contrary, the shortness of the statement itself
      guarantees truth. Surajdeo Oza v. State of Bihar ( 1980) Supp.
      sec 769)
          (ix) Normally the court in order to satisfy whether deceased
      was in a fit mental condition to make the dying declaration look up       B
      to the medical opinion. But where the eye witness has said that
      the deceased was in a fit and conscious state to make this dying
      declaration, the medical opinion cannot prevail. (Nanahau Ram
      v. State of MP. (1988) Supp. SCC 152)
         (x) Where the prosecution version differs from the version as          c
      given in the dying declaration, the said declaration cannot be acted
      upon. (State of U.P. v. Madan Mohan ( 1989) 3 SCC 390)"
       The above well-settled tests relating to dying declarations and the
principles have been elaborately considered in a number of judgments.
[Vide Kl111sltal Rao v. State of Bombay, AIR 1958 SC 22; State of D
Uttar Pradesh v. Ram Sagar Yadav, (1985) 1 SCC 552; State of Orissa
v. Ba11sidhar Singh, ( 1996) 2 SCC 194; Panneerselvam v. State of
Tamil Nad11(2008)17 SCC 190; Atbir v. Govt. ofNCT ofDel/ti (2010)
9 SCC l and Umaka11t and Anr. v. State of Chhattisgarlt (2014) 7
SCC405].
                                                                             E
       31. Multiple Dying Declarations: In cases where there are
more than one dying declarations, the Court should consider whether
they are consistent with each other. If there are inconsistencies, the
nature of the inconsistencies must be examined as to whether they are
material or not. In cases where there are more than one dying
declaration, it is the duty of the Court to consider each one of them and F
satisfy itself as to the voluntariness and reliability of the declarations.
Mere fact ofrecording multiple dying declarations does not take away
the importance of each individual declaration. Court has to examine the
contents of dying declaration in the light of various surrounding facts
and circumstances. This Court in a number of cases, where there were G
multiple dying declarations, consistent in material particulars not being
contradictory to each other, has affirmed the conviction. [ Vide Vitltal .v.
State of Maharashtra (2006) 13 SCC 54].
      32. In Amo/ Singh v. State of Madhya Prade~'ft (2008) 5 SCC
468, while discarding the two inconsistent dying declarations, laid down        H
264            SUPREME COURT REPORTS                            [2017) 6 S.C.R.



A     the principles for consideration of multiple dying declarations as under:-
            "13. Law relating to appreciation of evidence in the form of more
            than one dying declaration is well settled. Accordingly, it is not the
            plurality of the dying declarations but the reliability thereof that
            adds weight to the prosecution case. If a dying declaration is found
B           to be voluntary, reliable and made in fit mental condition, it can be
            relied upon without any corroboration. The statement should be
            consistent throughout. If the deceased had several oppo11unities
            of making such dying declarations, that is to say, ifthere are more
            than one dying declaration they should be consistent. (See Kundula
            Bala Subrahmanyam v. State of A.P ( 1993) 2 SCC 684)
c           However, if some inconsistencies are noticed between one dying
            declaration and the other, the court has to examine the nature of
            the inconsistencies, namely, whether they are material or not. While
            scrutinising the contents of various dying declarations, in such a
            situation, the court has to examine the same in the light of the
D           various surrounding facts and circumstances."
             33. In Ganpat Malzadeo Mane v. State of Maharashtra (1993)
      Supp.(2) SCC 242, there were three dying declarations. One recorded
      by the doctor; the second recorded by the police constable and. also
      attested by the doctor and the third dying declaration recorded by the
 E    Executive Magistrate which was endorsed by the doctor. Considering
      the third dying declaration, this Court held that all the three dying
      declarations were consistent and corroborated by medical evidence and
      other circumstantial evidence and that they did not suffer from any
      infirmity.
 F          34. In Lakhan v. State of M.P. (2010) 8 SCC 514, this Court
      considered a similar situation where in the first dying declaration given
      to a police officer was more elaborate and the subsequent dying
      declaration recorded by the Judicial Magistrate la..:ked ce11ain information
      given earlier. After examining the contents of the two dying declarations,
      this Court held that there was no inconsistency between two dying
 G    declarations and non-mention of certain features in the dying declarations
      recorded by the Judicial Magistrate does not make both the dying
      declarations inconsistent.
             35. In the light of the above principles, I now advert to analyze the
      facts of the present case. The victim made three dying declarations:-(i)
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            265
                 [R. BANUMATHI, J.]

statement recorded by PW-49 Dr. Rashmi Ahuja immediately after the           A
victim was admitted to the hospital; (ii) Dying declaration (Ex.PW-27/
A) recorded by PW-27 SDM Usha Chaturvedi on 21.12.2012; and (iii)
dying declaration (Ex.PW-30/D) recorded by PW-30 Pawan Kumar,
Metropolitan Magistrate on 25.12.2012 at I :00 P.M by multiple choice
questions and recording answers by gestures and writing. In the first
                                                                             B
dying declaration (Ex.PW-49/ A), the prosecutrix has stated that more
than two men committed rape on her, bit her on lips, cheeks and breast
and also subjected her to unnatural sex. In the second dying declaration
(Ex.PW-27/A) recorded by PW-27, the victim has narrated the entire
incident in great detail, specifying the role of each accused, rape
committed by number of persons, insertion of iron rod in her private         c
parts, description of the bus, robbery committed and throwing of both
the victims out of the moving bus in naked condition. In the second
dying declaration, she has also stated that the accused were addressing
each other with the names like, "Ram Singh, Thakur, Raju, M11kesh,
Paivan and Vinay". In the second dying declaration, though there are
                                                                             D
improvements in giving details of the incident, names of the accused
etc., there are no material contradictions between the first and second
dying declaration (Ex.PW-49/ A and Ex.PW-27I A).
       36. On 25.12.2012 at 1:00 P.M, PW-30 Pawan Kumar,
Metropolitan Magistrate recorded the statement by putting multiple choice
questions to the victim and by getting answers through gestures arid         E
writing. The third dying declaration (Ex.PW-30/D) is found consistent
with the earlier two declarations. Tt conclusively establishes that the
victim was brutally gang-raped, beaten by iron rod, subjected to other
harsh atrocities and was finally dumped at an unknown place. While
making the third declaration, the victim also tried to reveal the names of   F
the accused by writing in her own handwriting viz. Ram Singh, Mukesh,
Vinay, Akshay, Vipin, Raju.
       37. As per the settled law governing dying declarations, even if
there are minor discrepancies in the dying declarations, in the facts and
circumstances of the case, the Court can disregard the same as G
insignificant. A three-Judge Bench of this Court in Abrar v. State of
Uttar Pradesh (2011) 2 SCC 750, held that it is practical that minor
discrepancies in recording dying declarations may occur due to pain and
suffering of the victim, in case the declaration is recorded at multiple
intervals and thus, such discrepancies need not be given much emphasis.
                                                                          H
266            SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A           "12. It is true that there are some discrepancies in the dying
            declarations with regard to the presence orotherwise 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 ifthere were minor discrepancies
            inter se the three dying declarations, they were to be accepted as
B
            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
 c          support the statement of the Tahsildar. We are, therefore, of the
            opinion, that no fault whatsoever could be found in the dying
            declarations."
          38. When a dying declaration is recorded voluntarily, pursuant to
   a fitness report of a certified doctor, nothing much remains to be
 D questioned unless, it is proved that the dying declaration was tainted
   ~th animosity and a result of tutoring. Especially, when there are multiple
   dying declarations minor variations does not affect the evidentiary value
   of other dying declarations whether recorded prior or subsequent thereto.
   In Ashabai and Anr. v. State of Maharashtra (2013) 2 SCC 224, it
   was held as under:
 E
            "15 ..... 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,
 F          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 assess independently on its own merit as to its
 G          evidentiary value and one cannot be rejected because of certain
            variation in the other."
       ,,     39. Considering the present case on the anvil of the above
      principles, r find that though there was time gap between the declarations,
      all the three dying declarations are consistent with each other and there
 H    are no material contradictions. All the three dying declarations depict
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            267
                 [R. BANUMATHI, J.]

tmthful version of the incident, particularly the detailed narration of the   A
incident conceming the rape committed on the victim, insertion of iron
rod and the injuries caused to her vagina and rectum, unnatural sex
committed on the victim and throwing the victim and PW-I out of the
moving bus. All the three dying declarations being voluntary, consistent
and tmstworthy, satisfy the test ofreliability.
                                                                              B
       40. Dying Declaration by gestures and nods: Adverting to
the contention that the third dying declaration made through gestures
lacks credibility, it is seen that the multiple choice questions put to the
prosecutrix by PW-30 Pawan Kumar, Metropolitan Magistrate, were
simple and easily answerable through nods and gestures. That apart,
before recording the dying declaration, PW-30 Pawan Kumar, c
Metropolitan Magistrate had satisfied himself about fit mental state of
the victim to record dying declaration through nods and gestures. There
is nothing proved on record to show that the mental capacity of the
victim was impaired, so as to doubt the third dying declaration. As the
victim was conscious, oriented and meaningfully communicative, it is D
natural that the victim was in a position to write the names of the accused
persons and also about the use oflong iron rod. The third dying declaration
recorded through nods and gestures and also by the victim's own writing,
writing the names of the accused inspires confidence in the Court; the
same was rightly relied upon by the trial Court as well as the High Court.
                                                                            E
       41. Dying declaration made through signs, gesture or by nods ai·e
admissible as evidence, if proper care was taken at the time of recording
the statement. The only caution the Court ought to take is to ensure that
the person recording the dying declaration was able to correctly notice
and interpret the gestures or nods of the declarant. While recording the
third dying declaration, signs/gestures made by the victim, in response to F
the multiple choice questions put to the prosecutrix are admissible in
evidence.
      42. A dying declaration need not necessarily be by words or in
writing. It can be by gesture or by nod. In Meesala Ramakrislian v.
State ofA.P. (1994) 4 SCC 182, this Court held as under:-                     G

      "20 ...... 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
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268            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A           made, what were the questions asked-whether they were simple
            or complicated- and how effective or understandable the nods
            and gestures were."
            The same view was reiterated in B. Shashikala v. State of A.P.
      c2004) 13 sec 249.
 B           43. In the case of rape and sexual assault, the evidence of
      prosecutrix is very crucial and ifit inspires confidence of the court, there
      is no requirement of law to insist upon corroboration of the same for
      convicting the accused on the basis of it. Courts are expected to act
      with sensitivity and appreciate the evidence of the prosecutrix in the
 c    background of the entire facts of the case and not in isolation. In the
      facts and circumstances of the present case as the statements of the
      prosecutrix in the form of three dying declarations are consistent with
      each other and there are no material contradiction, they can be completely
      relied upon without corroboration. In the present case, the prosecutrix
      has made a truthful statement and the prosecution has established the
 D    case against the respondents beyond reasonable doubt. The victim also
      wrote the names of the accused persons in her own hand-writing in the
      dying declaration recorded by PW-30 (Ex.PW-30/D). Considering the
      facts and circumstances of the present case and upon appreciation of
      the evidence and material on record, I find all the three dying declarations
 E    consistent, true and voluntary, satisfying the test of probabilities factor.
      That apart, the dying declarations are well- corroborated by medical and
      scientific evidence adduced by the prosecution. Moreover, the same has
      been amply corroborated by the testimony of eye witness-PW-I.
             44. Corroboration of Dying declaration by Medical
 F    Evidence:- The dying declaration is amply corroborated by medical
      evidence depicting injuries to vagina and internal injuries to rectum and
      recto-vaginal septum as noted by PW-49 Dr. Rashmi Ahuja and PW-50
      Dr, Raj Kumar Chejara. On the night of 16.12.2012, the prosecutrix
      was medically examined by PW-49 who recorded her injuries and
      statement in the MLC (Ex. PW-49/B). On local examination, a sharp
 G    cut over right labia and a 6 cm long tag of vagina was found hanging
      outside the introitus. Vaginal examination showed bleeding and about 7
      to 8 cm Jong posterior vaginal wall tear. A rectal tear of about 4 to 5 cm
      was also noticed communicating with the vaginal tear. Apart from the
      said injuries to the private parts of the prosecutrix, guarding and rigidity
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             269
                 [R. BANUMATHI, J.]

was also found in her abdomen and several bruises and marks on face            A
were noticed. Bruises and abrasions around both the eyes and nostrils
were also found. Lips were found edematous and left side of the mouth
was injured by a small laceration. Bite marks over cheeks and breast,
below areola, were also present. Bruises over the left breast and bite
mark in interior left quadrant were prominent.
                                                                               B
       45. During surgery, conducted on 16/17.12.2012 PW-50 Dr. Raj
Kumar Chejara (Ex.PW-50/A and Ex. PW-50/B) noted contusion and
bruising ofjejunum, large bowel, vaginal tear, and completely tom recto-
vaginal septum. Small and large bowels were affected and were
extremely bad for any definitive repair. It was also noted that rectum
was longitudinally torn and the tear was continuing upward involving           c
sigmoid colon, descending colon which was splayed open. There were
multiple perforations at many places of ascending colon and calcum.
Terminal illeum approximately one and a halffeet loosely hanging in the
abdominal cavity avulsed from its mesentery. Rest of the small bowel
was non-existent with only patches of mucosa at places and borders of          D
the mesentery were contused. While performing second surgery on
19'h December, 2012, surgery team also recorded findings that rectum
was longitudinally tom on anterior aspect in continuation with peritorial
tear and other internal injuries. On 26-12-2012 the condition of the
prosecutrix was examined and it was decided to shift her abroad for
further treatment and she was shifted by an air-ambulance to Singapore         E
Mount Elizabeth Hospital. The prosecutrix died at Mount Elizabeth
Hospital, Singapore on 29-12-2012 at 04:45 AM. Cause of death is stated
as sepsis with multi organ failure following multiple injuries. (Ex.PW-34/
A)
       46. Injuries to vagina, rectum and recto-vaginal septum as noted        F
by PW-49 Dr. Rashmi Ahuja and PW-50 Dr. Raj Kumar Chejara; and
the injuries as depicted in the post-mortem certificate, including the other
external injuries which are evidently marks of violence during the incident,
exhibit the cruel nature of gang rape committed on the victim. The
profused bleeding from vagina and tag of vagina hanging outside;               G
completely recto-vaginal septum clearly demonstrate the violent act of
gang rape committed on the victim. The medical reports including the
operation theatre notes (Ex. PW-50/A and 50/B) and the injuries thereon
indicates the pain and suffering which the victim had undergone due to
multiple organ failure and other injuries caused by insertion of iron rod.
                                                                               H
270             SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A            47. If considered on the anvil of settled legal principles, injuries on
      the person of a rape victim is not even a sine qua non for proving the
      charge of rape, as held in Joseph v. State of Kera/a (2000) 5 SCC 197.
      The same principle was reiterated in State of Maharashtra v. Suresh
      (2000) I SCC 471. As rightly held in State ofRajasthan v. N.K., The
      Accused (2000) 5 SCC 30, absence of injury on the person of the victim
·s
      is not necessarily an evidence of falsity of the allegations of rape or
      evidence of consent on the part of the prosecutrix. In the present case,
      the extensive injuries found on the vagina/private parts of the body of
      the victim and injuries caused to the internal organs and all over the
      body, clearly show that the victim was ravished.
 c           48. Corroboration of dying declaration by scientific
      evidence:- The DNA profile generated from blood-stained pants, t-
      shirts and jackets recovered at the behest of A-2 Mukesh matched with
      the DNA profile of the victim. Likewise, the DNA profile generated
      from the blood-stained jeans and banian recovered at the behest of A-3
 D    Akshay matched with the DNA profile of the victim. DNA profile
      generated from the blood-stained underwear, chappal and jacket
      recovered at the behest of A-4 Vinay matched with the DNA profile of
      the victim. DNA profiles generated from the clothes of the accused
      recovered at their behest consistent with that of the victim is an
      unimpeachable evidence incriminating the accused in the occurrence.
 E    As submitted by the prosecution, there is no plausible explanation from
      the accused as to the matching of DNA profile of the victim with that of
      the DNA profile generated from the clothes of the accused. The courts
      below rightly took note of the DNA analysis report in finding the accused
      guilty.
 F           49. Bite marks on the chest of the victim and Odontology
      Report: It is also to be noted that the photographs of bite marks found
      on the body of the victim, lifted by PW-66 Shri Asghar Hussain were
      examined by PW-71 Dr. Ashith B. Acharya. The analysis shows that at
      least three bite marks were caused by accused Ram Singh whereas one
 G    bite mark has been identified to have been most likely caused by accused
      Akshay. This aspect of Odontology Report has been elaborately
      discussed by the High Court in paragraphs (91) to (94) of its judgment.
      Odontology Report which links accused Ram Singh and accused Akshay,
      with the case, strengthens the prosecution case as to their involvement.

 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            271
                 [R. BANUMATHI, J.]

       50. Going by the version of the prosecutrix, as per the dying          A
declaration and the evidence adduced, in particular medical evidence
and scientific evidence, I find the evidence of the prosecutrix being amply
corroborated. As discussed earlier, in rape cases, Court should examine
the broader probabilities ofa case and not get swayed by discrepancies.
The conviction can be based even on the sole testimony of the prosecutrix.
                                                                              B
However, in this case, dying declarations recorded from the prosecutrix
are corroborated in material particulars by:- (i) medical evidence; (ii)
evidence of injured witness PW-1; (iii) matching of DNA profiles,
generated from blood-stained clothes of the accused, iron rod recovered
at the behest of deceased accused Ram Singh and various articles
recovered from the bus with the DNA profile of the victim; (iv) recovery      c
of belongings of the victim at the behest of the accused, viz. debit card
recovered from A-1 Ram Singh and Nokia mobile from A-4 Vi nay. The
dying declarations well corroborated by medical and scientific evidence
strengthen the case of the prosecution by conclusively connecting the
accused with the crime.
                                                                              D
        51. Use of Iron Rod and death of the victim: Case of the
prosecution is that the accused brutally inserted iron rod in the vagina of
the prosecutrix and pulled out internal organs of the prosecutrix. The
defence refuted the use of iron rod by the accused on the ground that
the complainant as well as the victim did not mention the use of iron rods
in their first statements. Contention of the appellants is that when the      E
victim had given details of the entire incident to PW-49 Dr. Rashmi
Ahuja, if iron rod had been used, she would not have omitted to mention
the use of iron rods in the incident. We do not find force in such a
contention, as ample reliable evidence are proved on record which lead
to the irresistible conclusion that iron rod was used and it was not a mere   F
piece ofconcoction.
       52. Use of iron rods and insertion of the same in the private parts
of the victim is established by the second dying declaration recorded by
SDM PW-27 Usha Chaturvedi, where the victim has given a detailed
account of the incident, role of the accused, gang rape committed on her G
and other offences including the use of iron rods. The brutality with
which the accused persons inserted iron rod in the rectum and vagina of
the victim and took out her internal organs from the vaginal and anal
opening is reflected in Ex.PW-49/ A. Further, medical opinion of PW-49
(Ex. PW-49/G) stating that the recto-vaginal injury could be caused by
                                                                           H
272            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A     the rods recovered from the bus, strengthens the statement of the victim
      and the prosecution version. When the second and third dying declarations
      of the prosecutrix are well corroborated by the medical evidence, non-
      mention of use of iron rods in prosecutrix's statement to PW-49 Dr.
      Rashmi Ahuja (Ex. PW-49/ A), does not materially affect the credibility
      of the dying declaration. Insertion of iron rod in the private parts of the
B
      prosecutrix is amply established by the nature of multiple injuries caused
      to jejunum and rectum which was longitudinally torn, tag of vagina hanging
      out; and completely tom recto-vaginal septum.
             53. At the behest of accused Ram Singh two iron rods (Ex.P-49/
      1 and Ex.P-49/2) were recovered from the shelf of the driver's cabin
 c    vide seizure Memo Ex.PW-74/G. The blood-stained rods deposited in
      the Malkhana were thereafter sent for chemical analysis. The DNA
      report prepared by PW-45 Dr. B.K Mohapatra, indicates that the DNA
      profile developed from the blood-stained iron rods is consistent with the
      DNA profile of the victim. Presence of blood on the iron rods and the
 D    DNA profile of which is consistent with the DNA profile of the victim
      establishes the prosecution case as to the alleged use of iron rods in the
      incident.
           54. Evidence of PW-1: In his first statement made on 16.12.2012,
   eye witness PW-I stated that he accompanied the prosecutrix to Select
 E City Mall, Saket, New Delhi in an auto from Dwarka, New Delhi where
   they watched a movie till about 08:30 p.m. After leaving the Mall, PW-
   1 and the victim took an auto to Munirka from where they boarded the
   fateful bus. After the prosecutrix and PW-I boarded the bus, the accused
   surrounded PW-I and pinned him down in front side of the bus. While
   the accused Vinay and Pawan held PW-I, the other three accused
 F committed rape on the victim on the rear side of the bus. Thereafter,
   other accused held PW-I, while Vinay and Pawan committed rape on
   the victim. Later accused Mukesh who was earlier driving the bus,
   committed rape on the victim. After the incident, PW-I and the
   prosecutrix were thrown out of the moving bus, near Mahipalpur flyover.
 G In the incident, PW- I himself sustained injuries which lends assurance
   to his credibility.
             55. That PW-I accompanied the victim to Select City Mall and
      that he was with the victim till the end, is proved by ample evidence. As
      per the case of the prosecution, on the fateful day, the complainant and
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            273
                 [R. BANUMATHI, J.]

the prosecutrix had gone to Saket Mall to see a movie. CCTV footage           A
produced by PW-25 Rajender Singh Bisht in two CDs (Ex.PW-25/C-l
and PW-25/C-2) and seven photographs (Ex.PW-25/B- l to Ex.PW-25/
B-7) corroborate the version of PW- I that the complainant and the victim
were present at Saket Mall till 8:57 p.m. The certificate under Section
65-B of the Indian Evidence Act, 1872 with respect to the said footage
                                                                              B
is proved by PW-26 Shri Sandeep Singh (Ex.PW-26/ A) who is the CCTV
operator at Select City Mall.
       56. The computer generated electronic record in evidence,
admissible at a trial is proved in the manner specified in Section 65-B of
the Evidence Act. Sub-section (I) of Section 65 of the Evidence Act
makes electronic records admissible as a document, paper print out of
                                                                              c
electronic records stored in optical or magnetic media produced by a
computer, subject to the fulfillment of the conditions specified in sub-
section (2) of Section 65-B of the Evidence Act. When those conditions
are satisfied, the electronic record becomes admissible in any proceeding
without further proof or production of the original, as evidence of any of    D
the contents of the original or any fact stated therein of which direct
evidence is admissible. Secondary evidence of contents of document
can also be led under Section 65 of the Evidence Act.
        57. Having carefully gone through the deposition of PW-I, I find
that his evidence, even after lengthy cross examination, remains unshaken.    E
The evidence of a witness is not to be disbelieved simply because of
minor discrepancies. It is to be examined whether he was present or
not at the crime scene and whether he is telling the trnth or not. PW-I
has clearly explained as to how he happened to be with the victim and
considering the cogent evidence adduced by the prosecution, presence
of PW-I cannot be doubted in any manner. PW-I himself was injured in          F
the incident and he was admitted in the Casualty Ward, where PW-51
Dr. Sachin Bajaj examined him. As per Ex.PW-51 I A, lacerated wound
over the vertex of scalp, lacertated wound over left upper lip and abrasion
over right knee were found on the person of PW-I. Testimony of PW-
1 being testimony of an injured witness lends credibility to his evidence     G
and prosecution's case. As rightly pointed out by the Courts below, no
convincing grounds exist to discard the evidence of PW- I, an injured
witness.
      58. The question of the weight to be attached to the evidence of
                                                                              H
274            SUPREME COURT REPORTS                           (2017] 6 S.C.R.


A     an injured witness has been extensively discussed by this Court in Mano
      Dutt and Anr. v State of Uttar Pradesh (2012) 4 SCC 79. After
      exhaustively referring to various judgments on this point, this Court held
      as under:-
            "31. We may merely refer to Abdul Sayeed v. State of
B           MP.(2010)10 SCC 259 where this Court held as under: (SCC
            pp. 271-72, paras 28-30)
                "28. The question of the weight to be attached to the evidence
                of a witness that was himself injured in the course of the
                occurrence has been extensively discussed by this Court.
c               Where a witness to the occurrence has himself been injured in
                the incident, the testimony of such a witness is generally
                considered to be very reliable, as he is a witness that comes
                with a built-in guarantee of his presence at the scene of the
                crime and is unlikely to spare his actual assailant(s) in order to
                falsely implicate someone. 'Convincing evidence is required
 D              to discredit an injured witness.' [Vide Ramlagan Singh v. State
                of Bihar(1973) 3 SCC 881, Ma/khan Singh v. State of
                U.P.(1975) 3 SCC 311, Machhi Singh v. State of Punjab
                (1983) 3 SCC 470, Appabhai v. State of Gujarat/988 Supp
                SCC 241, Bonkya v. State of Maharashtra(1995) 6 SCC
 E              447, Bhag Singh v. State of Punjab (1997) 7 SCC 712,
                Mohar v. State of U.P.(2002) 7 SCC 606 (SCC p. 606b-c),
                Dine.sh Kumar v. State of Rajasthan(2008) 8 SCC 270,
                 Vishnu v. State of Rajasthan(2009) 10 SCC 477, Annareddy
                Sambasiva Reddy v. State of A.P.(2009) 12 SCC 546 and
                Balraje v. State of Maharashtra(2010) 6 SCC 673.]
 F
                29. While deciding this issue, a similar view was taken in
                Jarnail Singh v. State of Punjab(2009) 9 SCC 719 where
                this Court reiterated the special evidentiary status accorded to
                the testimony of an injured accused and relying on its earlier
                judgments held as under: (SCC pp. 726-27, paras 28-29)
 G
                '28. Darshan Singh (PW 4) was an injured witness. He had
                been examined by the doctor. His testimony could not be
                brushed aside lightly. He had given full details of the incident
                as he was present at the time when the assailants reached the
                tubewell. In Shivalingappa Kallayanappa v. State of
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             275
                 [R. BANUMATHI, J.]

         Karnatakal 994 Supp (3) SCC 235 this Court has held that             A
         the deposition of the injured witness should be relied upon unless
         there are strong grounds for rejection of his evidence on the
         basis of major contradictions and discrepancies, for the reason
         that his presence on the scene stands established in case it is
         proved that he suffered the injury during the said incident.
                                                                           8
         29. In State of U.P. v. Kishan Chand(2004) 7 SCC 629 a
         similar view has been reiterated observing that the testimony
         of a stamped witness has its own relevance and efficacy. The
         fact that the witness sustained injuries at the time and place of
         occurrence, lends support to his testimony that he was present
         during the occurrence. In case the injured witness is subjected
         to lengthy cross-examination and nothing can be elicited to
         discard his testimony, it should be relied upon (vide Krishan v.
         State of Ha1yana(2006) 12 SCC 459). Thus, we are of the
         considered opinion that evidence of Darshan Singh (PW 4)
         has rightly been relied upon by the courts below.'                D
         30. The law on the point can be summarised to the effect that
         the testimony of the injured witness is accorded a special status
         in law. This is as a consequence of the fact that the injury io
         the witness is an inbuilt guarantee of his presence at the scene
         of the crime and because the witness will not want to let his        E
         actual assailant go unpunished merely to falsely implicate a
         third party for the commission of t11e offence. Thus, the
         deposition of the injured witness should be relied upon unless
         there are strong grounds for rejection of his evidence on the
         basis of major contradictions and discrepancies therein."
                                                                              F
      59. After the accused were arrested, they made disclosure
statements. Pursuant to the said disclosure statements, recoveries of
various articles were effected which included clothes of the accused
and articles belonging to PW- I and the prosecutrix. The Samsung
Galaxy Duos mobile phone recovered from A-2 was identified by the
complainant in the court as belonging to him and testimony of the             G
complainant was further fortified by the testimony of PW-56 Sandeep
Dabral, Manager, Spice Mobile Shop, who stated that the said Samsung
Mobile bearing the respective IMEI number was sold in the name of the
complainant. Also, the metro card and silver ring recovered at the behest
                                                                              H
276            SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A     of A-3 Akshay were identified by PW- I in court as belonging to him.
      The silver ring was also identified by the complainant in the TIP
      proceedings conducted on 28.12.2012. Likewise, the Hush-Puppies
      shoes recovered at the behest of A-4 Vinay and wrist watch of Sonata
      make recovered at the behest of A-5 Pawan were identified by PW-I in
      TIP proceedings as belonging to him. Recoveries of articles of PW-I
B
      and other scientific evidence, irrebutably establish the presence of PW-
      1 at the crime scene and strengthens the credibility of PW-1 's testimony.
             60. Apart from the recoveries made at the behest of the accused,
      presence of PW-I is also confirmed by DNA profile generated from the
      blood-stained mulberry leaves and grass collected from Mahipalpur
c     (seized vide Memo Ex. PW-74/C) where both the victims were thrown
      after the incident. As per the Chemical Analysis Report, DNA profile
      generated from the blood-stained murberry leaves collected from the
      Mahipalpur flyover were found to be of male origin and consistent with
      the DNA profile of PW-I. This proves that PW-I was present with the
 D    victim at the time of the incident and both of them were together thrown
      out of the bus at Mahipalpur.
             61. Further, as discussed infra, pursuant to the disclosure statement
      of the accused, clothes of accused, some of which were blood-stained
      and other incriminating articles were recovered. PW-45 Dr. B.K.
 E    Mohapatra matched the DNA profiles of the blood detected on the clothes
      of the accused with that of the complainant and the victim. One set of
      DNA profile generated from jeans-pant of the accused Akshay (A-3)
      matched the DNA profile of PW-I. Likewise, one set of DNA profile
      generated from the sports jacket of accused Vinay (A-4) was found
      consistent with the DNA profile of PW-I. Also. one set of DNA profile
 F    generated from black coloured sweater of Accused Pawan Gupta (A-
      5) was found consistent with the DNA profile of PW-I. Result of DNA
      analysis further corroborates the version of PW- I and strengthens the
      prosecution case. DNA Analysis Report, as provided by PW-45 is a
      vital piece of evidence connecting the accused with the crime.
 G           62. Matching of DNA profile generated from the bunch of hair
      recovered from the floor of the bus near the second row seat on the left
      side, with DNA profile of the complainant is yet another piece of evidence
      corroborating the version of PW-I [vide Ex.PW-45/B]. Further, DNA
      profile developed from burnt cloth pieces, recovered from near the rear
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               277
                  [R. BANUMATHI, J.]

side entry of the bus was found consistent with DNA profile of PW-I;             A
and this again fortifies the presence of PW-I with the victim in the bus.
       63. Contention of the appellants is that there are vital contradictions
in the statements of PW- I. It is contended that initially PW-I did not
give the names of the accused in the FIR and that he kept on improving
his version, in particular, in the second supplementary statement recorded       B
on 17.12.2012 in which he gave the details of the bus involved. To contend
that testimony of PW-1 is not trustworthy, reliance is placed on Kathi
Bharat Vajsur And Anr. v State of Gujarat (2012) 5 SCC 724. In
Kathi Bharat Vajsur's case, this Court has observed that when there
are inconsistencies or contradictions in oral evidence and the same is
found to be in contradiction with other evidence then it cannot be held          c
that the prosecution has proved the case beyond reasonable doubt.
       64. While appreciating the evidence of a witness, the approach
must be to consider the entire evidence and analyze whether the evidence
as a whole gives a complete chain of facts depicting truth. Once that
impression is formed, it is necessary for the court to scrutinize evidence D
particularly keeping in view the prosecution case. Any minor
discrepancies or improvements not touching the core of the prosecution
case and not going to the root of the matter, does not affect the
trustworthiness of the witness. Insofar as the contention that PW-I
kept on improving his version in his statement recorded at various point E
of time, it is noted that there are indeed some improvements in his version
but, the core of his version as to the occurrence remains consistent.
More so, when PW-1 and the victim faced such a traumatic experience,
immediately after the incident, they cannot be expected to give minute
details of the incident. It would have taken some time for them to come
out of the shock and recollect the incident and give a detailed version of F
the incident. It is to be noted that in the present case, the statements of
PW-1 recorded on various dates are not contradictory to each other.
The subsequent statements though are more detailed as compared to
the former ones, in the circumstances of the case, it cannot be said to be
unnatural affecting the trustworthiness of PW-1 's testimony. There is G
hardly any justification for doubting the evidence of PW- I, especially
when it is corroborated by recovery ofPW-1 's articles from the accused
and scientific evidence.
       65. The trial Court as well as the High Court found PW-1 's
                                                                                 H
278            SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A     evidence credible and trustworthy and I find no reason to take a different
      view. The view of the High Court and the trial court is fortified by the
      decisions of this court in Pud/111 Raja and Anr. v. State Rep. by
      Inspector of Police, (2012) 11 SCC 196, Jas1vant Singh v. State of
      Haryana (2000) 4 SCC 484 and Akhtar and Ors. v. State of
      Uttaranchal (2009) 13 SCC 722. Further, the evidence of PW-I is
·B
      amply strengthened by scientific evidence and recovery of the
      incriminating articles from the accused. The alleged omissions and
      improvements in the evidence of PW- I pointed out by the defence do
      not materially affect the evidence of PW- I.
             66. Recovery of the bus and its Involvement in the incident:
C     Description of the entire incident by PW- I and the victim led the
      investigating team to the Hotel named "Hotel Delhi Airpmi", where PW-
      1 and the victim were dumped after the incident. PW-67 P.K. Jha,
      owner of Hotel Delhi Airport handed over the pen drive containing CCTV
      footage     (Ex.P-67/l) and CD (Ex.P-67/2) to the Investigating Officer
D     which were seized. From the CCTV footage, the offending bus bearing
      registration No.DL-1PC-0149 was identified by PW-I. The bus was
      seized from Ravi Dass Camp and Ram Singh (A-1) was also arrested.
             67. PW-81 Dinesh Yadav is the owner of the bus bearing
      Registration No.DL-1PC-0149 (Ex.P-1 ). PW-81 runs buses under the
·E    name and style "YadavTravels". On interrogation, PW-81 Dinesh Yadav
      stated that A-I Ram Singh was the driver of the bus No.DL-1 PC-0149
      in December, 2012 and A-3 Akshay Kumar Singh was his helper in the
      bus. PW-81 also informed the police that the bus was attached to Birla
      Vidya Niketan School, Pushp Vihar, New Delhi to ferry students to the
      school in the morning and that it was also engaged by a Company named
 F    Mis. Net Ambit in Noida, to take its employees from Delhi to Noida.
      PW-81 also informed the police that after daily routine trip, A-1 Ram
      Singh used to park the bus at Ravi Dass Camp, R.K. Puram, near his
      residence. PW-81 further informed that on 17.12.2012, the bus as usual
      went from Delhi to Noida to take the Staff of M/s Net Ambit to their
 G    office. The recovery of the bus (Ex.P-1) and evidence of PW-81 led to
      a breakthrough in the investigation that A-I Ram Singh was the driver of
      the bus and A-3 Akshay was the cleaner of the bus.
            68. Furthermore, in order to prove that A I Ram Singh (Dead)
      was the driver of the bus No.DL-IPC-0149 (Ex.P-1), PW-16 Rajeev
H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            279
                 (R. BANUMATHI, J.]

Jakhmola, Manager (Administration) of Birla Vidya Niketan School,            A
Pushp Vihar, New Delhi was examined. In his evidence, PW-16 stated
that PW-81, Dinesh Yadav had provided the school with seven buses on
contract basis including the bus No.DL-1 PC-0149 (Ex.P-1) and that A-
l Ram Singh was its driver. In his inte1Togation by the police, PW-16
had also handed over Ram Singh's driving licence alongwith copy of           B
agreement of the school with the owner of the bus and other documents.
By adducing the evidence of PW-81 Dinesh Yadav and PW-16 Rajeev
Jakhmola, the prosecution has established that the bus in question was
routinely driven by A-1 Ram Singh (Dead) and A-3 Akshay Kumar was
the helper in the bus.
       69. On 17.12.2012, a team of experts from CFSL comprising PW-         C
45 Dr. B.K. Mohapatra, PW-46 A.D. Shah, PW-79 P.K. Gottam and
others, went to the Thyagraj Stadium and inspected the bus Ex.Pl. On
inspection, certain articles were seized from the said bus vide seizure
memo       Ex.PW-74/P. It is brought on record that the samples were
diligently collected and taken to CFSL, CBI by SI Subhash (PW-74)            D
vide RC No. 178/21/12 for examination. The DNA profile of material
objects lifted from the bus bearing No.DL-lPC-0149 were found
consistent with that of the victim and the complainant. Matching of the
DNA profile developed from the articles seized from the bus DL-1 PC-
0149 like hair recovered from the third row of the bus on the left side
                                                                             E
with the DNA profile of PW-I, strengthens the prosecution case as to
the involvement of the offending bus bearing registration No.DL-lPC-
0149. DNA profile developed from the blood-stained curtains of the bus
and blood-stained seat covers of bus and the bunch of hair recovered
from the floor of the bus below sixth row matched with the DNA profile
of the victim. The evidence of DNA analysis is an unimpeachable              F
evidence as to the involvement of the offending bus in the commission
of offence and also strong unimpeachable evidence connecting the
accused with the crime.
      70. The accused neither rebutted this evidence nor offered any
convincing explanation except making feeble attempt by stating that          G
everything was concocted. PW-46, A.D. Shah, Senior Scientific Officer
(Finger Prints), CFSL, CBI examined the chance prints lifted from the
bus. Chance print marked as 'Q. l' lifted from the bus (Ex.P-1) was
found identical with the left palm print of accused Vi nay Sharma. Further
chance print marked as 'Q.4' was found identical with right thumb
                                                                             H
280               SUPREME COURT REPORTS                                           [2017] 6 S.C.R.


A     impression of accused Vinay Sharma. A finger print expert report
      (Ex.PW-46/D) states that the chance print lifted from the bus being
      identical with the finger print of accused Vi nay Sharma, establishes the
      presence of accused Vinay Sharma in the bus, thereby strengthening
      prosecution case.
B            71. Arrest and Recovery under Section 27 of the Indian
      Evidence Act: Prosecution very much relies upon disclosure statements
      of the accused, pursuant to which articles of the victim and also of PW-
      1 were recovered. Accused being in possession of the articles of the
      victim and that of PW- I, is a militating circumstance against the accused
      and it is for the accused to explain as to how they came in possession of
c     these articles. Details of arrest of accused and articles recovered from
      the accused are as under:-



                                   ACCLSED R.UI S~GH (A-1) (Dead)
D
        ARREST (\\1Il:~+        ARJICLESRECOHRID FRO~IACUSED
           WHERE+
          BYWHO'.\n
                            Details or articles Details or articles recorered Items identified as
                            recovered from pursuaut to disclosure statement that of ~\'~I
                            the person of the                                 Awninder Pratap
 E                          accused                                           Sin~h/ProsecutriJ:
               (1)                  m                            (3)                         (4)
       On 17.121012, PW· (1) One Unix (!) Bus(Ex.P-1) DUPC-0149                       •Debit      Card,
       80 Pratibha Sharma Mobile Phone ,,;ith (2) Keys ofBus, (Ex.P-74.2)              marked as Ex.
       alonJll>ith PW-74 MfNL             Sim (3)Drh-ing     License,         Fitness PW-743 belongs
       Subhash Chand SI [Ex.PW-74.5];         Certificate,    Permit        Pollution to the prosecutrix
       and PW-65        Ct. (2) Photocopy of Certificate and other documents of as deposed by
 F     Kirpal        Singh Election Card and bus bearing registration no. DL-!PC· PW-75-           Asha
       arrested A-1 at4:15 Pan Card;          0149 (Ex.P-744)                          De,i, mother of
       PM (Arrest Memo: (3) Rs. 207- in (4) Tiro blood-stained rods (Ex.P49 l prosecutrix.
       Ex.PW-HD) from cash          [personal and Ex.49.2)
       Ravi Das Camp, search           Memo (i) Indian Bank Debit Card(Ex.Pi4J)
       RK. Puram, Delhi. Ex.PW-74.IJ          (6) Blood-stained green and black
                                              coloured T-Shirt 1tx.7 4. 6) and blood-
G                                             stained bro~n coloured chappal
                                              (Ex.74 7).
                                              I)) Some ashes and partly burnt
                                              clothes (seizure memo Ex. P\\'-
                                                 7H!.)


H
  MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                                                  281
                [R. BANUMATHI, J.]


                                 ACCl:SED 1Il:'KESH (A-2)                                         A

 ARREST (WHE~+             ARTICU:S RICO\l:IW) FRmL\.CCl:SED
WHERE+BYWHmn
                         Details of articles    Details of artides reconred Items identified as
                        recovered from the        pursuant to disclosure       that of PW-I
                       person of the accused             statement          Awninder Pratap
                                                                                                  B
                                                                            SiniblPromutrb:
         (1)                    (2)                         (3)                      (4)
A-2 wastrmdatKaroli (I) Rs. 226:· in cash       Disclmure statement recorded • In the TIP
District, Rajasthan by (2) Key                  on IS.12.2012 by PW-60 HC proceedings held
PW-58 SI AIYind (3) one blackandbrm'n Mahabir (Ex.PW-60:»                      on 20.12.2012,
Kumar alon!l'1ith staff colour purse containing Follo\\ing items recmred:      PW-1 identified
AS!Anand Prakash.He PAN Card, Visiting 1. one blood-stained green T- the Samsung
Randhawa,HCMulresh, cards and 1·oter card and shirt                            Galaxy Duos
                                                                                                  c
HC Sachin and       Ct. (4)Nokia Mobile phone 2. one blood-stained grey colour (recovered from
Umesh, pursuant to      bearing           !ME! pants.                          accused Mulresh)
A-l's disclosure. He No.35186301065924 7 3. blood-stained bluish grey as belon~ng to
was formally arrested (5) Samsung Galaxy colour jacket.                        him.
on 18.12.2012 at 6.30 Duos Mobile with !MEI
p.m. by PWSO SL         No.35409805 34 54886                                                      D
(Arrest Memo Ex.PW- and
581B)                   No.354099053454884
                        (Ex. P;6)

                                  ACCfSED AKSHAY (A-3)

 ARREST (WHEN+          ARTICLES RECOVERED FROMACCl:SED                                           E
   WHERE+BY
    WHOM)
                          Det1ils of articles     Details of articles Items identified as thai
                         recomed from the       recoHred pursuant to     of PW-1 Awnindu
                        person of the accused    disclosure llatement          Pratap
                                                                         Sinl111'ProsecntriI      F
          (I)                    (2)                      (3)                      (4)
On 21.12.2012 at 9:15 No pmonal articles (!) One black bag • In the TIP proceedings
p.m., pursuant to the recovered from the containing blood-stained held on 26.12.2012,
disclosure ofA-l, PW- accused at his residence, blue jeans             PW-l identified the
53 SI Upend er Karmalahang                      (2) Blue black Nokia Silver ring (recovered
alongl'ith       team                           mobile phone with !MEI from accused Akshay)
comprising Jnsp. Ritu                           No.359286040159081     as belon~ng to PW-1        G
Raj, PW-61 SI Jcct                              (3) Blood-stained red Complainant.
Singh and AS! Ashok                             coloured banian.
Kumar anested him                               (4) One silver ring
from his house at                               (5) Two metro cards
Karmalahang. (Anest
Memo: Ex.PWil/A)                                                                                  H
282              SUPREME COURT REPORTS                                                  [2017) 6 S.C.R.



A                                    ACCrsrn '1.'"AY t.\.-4)
       ARREST (WH!'.\"+       ARTICLES RECOYERID rnmuccrsrn
           WHERE+ BY
            \lROlI)
                                Details of artirle1      Details of articles Item identified as that
                               recorered from the      reronred purrnant to    of P\Y-1 ..\.1Tninder
                              person of the accused     disclosure statement         Pratap
B                                                                              Sinqh/PromutriI
               II\                     (2l                           (3)                         (4)
      On 18.12.2012 at 1:30 (I) One black coloured     !. Blood-stained    blue • PW-I identified hush
      p.m., on disclosure of    Nokia mobile phone       coloured jeans t!x.P- pupp'               shoes
      ..\.-1,PW-SO S!Pratibha   bearing        !MEI      68.1)                      {reroYered      from
      Shanna alonge,ith PW-     no.3541380583082 l    2. Blood-stained black accused \1nay) as
      60 HC Mahabir and         418 (Ex.P\\'-60.D)       coloured jacket (E.x.P- belonging to him.
c     Manphool arrested him                              68.2)                    • Nokia mobile phone
       from Ravi Das Camp,                            l Blood-stained        foll bearing           r~IEr
      R.K. Puram, Delhi in                               slee«ed black coloured No.353183039047391
      the presence of A-!.                               T-shirt (Ex.P-6S 3)        was identified as the
      (Arrest Memo: Ex.PW-                            4. Blue          coloured mobile phone of the
      60.B).                                             chappals (Ex.P-6S.4)       prosecuaix.
      Supplementary                                   5. Hush puppy shoes
D     disclosure recorded on                             (Ex.P2 under Ex.PW-
       19.12.2012 by PW-68                               6SC)
      SI .Mandeep ·(Ex.PW-                            6. Black coloured Nokia
      68iA)                                              mobile phone with
                                                         !MEI
                                                         No.353183039047391
                                                         (Ex.P-68 5) - seizure
 E                                                       Memo Ex.PW-68.'D
                               ACCl:SED PA\HX Gl-PTA@; KALr (A-5)
       ARREST (\\'HE;>;+      ARTICLES RECOVERED FRmI ACCrsED
         WHERE+ BY
             WIIO~n
                               Details of artides        Details of a1·ticles         ltews idtutified as that
                              recovered frou1 the     recoYered pursuant to              of P\Y-1 Awniudra
                             person of the accused     disclosure statement               Pratap Sin2hi
 F                                                                                         Pro-secutri:I

      On
               ill
           18.122012,
                                      '2'
                           on (I) On< black purse      (!)one
                                                                    13\                         (4)
                                                                 blood-stained , fu the TlPproceedings
      disdosureofA-1, P\V- containing som~ visiting   black cokrnred s\veater    conducted            on
      SO S.l. Pratibha Shanna cards                   (Ex. P-68 6)               25.12.2012, SonJ.ta
      alongwith               (2) Rs.S,ZOO in cash    (2)blood-stainl!d coca     \\Tist watch identified
      P\V-60 HC !1-Llhabir (3)0ne silver coloured     cola (cC1lour) pants.      by P\V. J (rc!CO\·ered
      and ~ianphool went to ring with green nug       \Ex 6S 7\                  from accused Pawan)
      Ravi Das Camp at 1:15 (Personal Search :Memo:   (3)Blood-stained brO\\U    as belongmg to him.
G     p.m. to arrest him.     Ex P\\C60 C).           coloured      undeD.,·ear
      (Arrest 1\femo:Ex.Pv:-                          (Ex P-68 S\
      60A)                                            (-4)Bro•,yn          coloured
                                                      spons. shoes
                                                      (Ex.P-68. 9)
                                                      (5)0ne ~ni stwatch         of
                                                      Sonata make
                                                      (Ex.P-3)
                                                      (6)1\vo currencynotts of
H                                                     Rs.500 "each t.Ex,P·7)
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             283
                 [R. BANUMATHI, J.]

       72. As noted in the above tabular form, various articles of the A
complainant and the victim were recovered from the accused viz.,
Samsung Galaxy Phone (recovered at the behest of A-2 Mukesh); silver
ring (recovered at the behest of A-3 Akshay); Hush Puppies shoes
(recovered at the behest of A-4 Vinay) and Sonata Wrist Watch
(recovered at the behest of A-5 Pawan). Recovery of belongings of B
PW-I and that of the victim, at the instance of the accused is a relevant
fact duly proved by the prosecution. Notably the articles recovered
from the accused thereto have been duly identified by the complainant
in test identification proceedings. Recovery of articles of complainant
(PW-I) and that of the victim at the behest of accused is a strong
incriminating circumstance implicating the accused. As rightly pointed C
out by the Courts below, the accused have not offered any cogent or
plausible explanation as to how they came in possession of those articles.
       73. Similarly, the Indian bank debit card (Ex.PW-74/3) recovered
at the behest ofA-I Ram Singh and black coloured Nokia mobile phone
(Ex.PW-68/5) recovered at the behest of A-4 Vinay have been proved             D
to be used by the prosecutrix. PW-75 Asha Devi mother of the victim in
her testimony stated that the Debit card belonged to her PW-75 Asha
Devi and that the same was in the possession of her daughter. Nokia
mobile phone (Ex.PW-68/5) is stated to be the mobile used by the victim.
Notably, the articles of the prosecutrix recovered from the accused were
proved by the evidence of PW-75 Asha Devi (mother of the victim) and           E
the same was not controverted by the defence.
        74. Section 25 of the Indian Evidence Act (for short 'the Evidence
Act') speaks of a confession made to a police officer, which shall not be
proved as against a person accused of an offence. Section 26 of the
Evidence Act also speaks that no confession made by the person whilst          F
he is in the custody of a police officer, unless it be made in the immediate
presence ofa Magistrate, shall be proved as against such person. Sections
25 and 26 of the Evidence Act put a complete bar on the admissibility of
a confessional statement made to a police officer or a confession made
in absentia ofa Magistrate, while in custody. Section 27 of the Evidence       G
Act is by way of a proviso to Sections 25 and 26 of the Evidence Act
and a statement even by way of confession made in police custody
which distinctly relates to the fact discovered is admissible in evidence
against the accused. Section 27 of the Evidence Act reads as under:-

                                                                               H
284             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A           "27. How much of information received from accused may
            be proved.- Provided that, when any fact is deposed to as
            discovered in consequence of information received from a person
            accused of any offence, in the custody of a police officer, so
            much of such informati"on, whether it amounts to a confession or
            not, as relates distinctly to the fact thereby discovered, may be
B
            proved."
             Section 27 is based on the view that if a fact is actually discovered
      in consequence of information given, some guarantee is afforded thereby
      that the information is trne and is a relevant fact and accordingly it can
      be safely allowed to be given in evidence.
c
             75. Section 27 has prescribed two limitations fordetermining how
      much of the information received from the accused can be proved against
      him:       (i) The information must be such as the accused has caused
      discovery of the fact, i.e. the fact must be the consequence, and the
      infonnation the cause ofits discovery; (ii) The information must 'relate
D     distinctly' to the fact discovered. Both the conditions must be satisfied.
      Various requirements of Section 27 of the Evidence Act are succinctly
      summed up in Anter Singh v. State of Rajasthan (2004) I 0 SCC 657:-
            "16. The various requirements of the section can be summed up
             as follows:
 E
             (1) The fact of which evidence .is sought to be given must be
                relevant to the issue. It must be borne in mind that the provision
                has nothing to do with the question of relevancy. The relevancy
                of the fact discovered must be established according to the
                prescriptions relating to relevancy of other evidence connecting
 F              it with the crime in order to make the fact discovered admissible.
             (2) The fact must have been discovered.
             (3) The discovery must have been in consequence of some
                information received from the accused and not by the accused's
                own act.
 G
             (4) The person giving the information must be accused of any
                offence.
             (5) He must be in the custody of a police officer.
             ( 6) The discovery of a fact in consequence of infonnation received
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            285
                 [R. BANUMATHI, J.]

          from an accused in custody must be deposed to.                      A
      (7) Thereupon only that portion of the information which relates
          distinctly or strictly to the fact discovered can be proved. The
          rest is inadmissible."
       76. Appending a note of caution to prevent the misuse of the
provision of Section 27 of the Evidence Act, this Court in Geejaganda         B
Somaiah v. State of Karnataka (2007) 9 SCC 315, observed that the
courts need to be vigilant about application of Section 27 of the Evidence
Act. Relevant extract from the judgment is as under:-
      " 22. As the section is alleged to be frequently misused by the
      police, the courts are required to be vigilant about its application. c
      The court must ensure the credibility of evidence by police because
      this provision is vulnerable to abuse. It does not, however, mean
      that any statement made in terms of the aforesaid section should
      be seen with suspicion and it cannot be discarded only on the
      ground that it was made to a police officer during investigation. D
      The court has to be cautious that no effort is made by the prosecution
      to make out a statement of the accused with a simple case of
      recovery as a case of discovery of fact in order to attract the
      provisions of Section 27 of the Evidence Act."
       77. Even though, the arrest and recovery under Section 27 of the       E
Evidence Act is often sought to be misused, the courts cannot be expected
to completely ignore how cmcial are the recoveries made under Section
27 in an investigation. The legislature while incorporating Section 27, as
an exception to Sections 24, 25 and 26 of the Evidence Act, was convinced
of the quintessential purpose Section 27 would serve in an investigation
process. The recovery made under Section 27 of the Evidence Act not           F
only acts as the foundation stone for proceeding with an investigation,
but also completes the chain of circumstances. Once the recovery is
proved by the prosecution, burden of proof on the defence to rebut the
same is very strict, which cannot be discharged merely by pointing at
procedural irregularities in making the recoveries, especially when the       G
recovery is corroborated by direct as well as circumstantial evidence,
especially when the investigating officer assures that failure in examining
independent witness while making the recoveries was not a deliberate
or mala fide, rather it was on account of exceptional circumstances
attending the investigation process.
                                                                              H
286            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A           78. While the prosecution has been able to prove the recoveries
      made at the behest of the accused, the defence counsel repeatedly argued
      in favour of discarding the recoveries made, on the ground that no
      independent witnesses were examined while effecting such recoveries
      and preparing seizure memos.
B            79. The above contention of the defence counsel urges one to
      look into the specifics of Section 27 of the Evidence Act. As a matter of
      fact, need of examining independent witnesses, while making recoveries
      pursuant to the disclosure statement of the accused is a rule of caution
      evolved by the Judiciary, which aims at protecting the light of the accused
      by ensuring transparency and credibility in the investigation of a criminal
c     case. Tn the present case, PW-80 SI Pratibha Sharma has deposed in
      her cross-examination that no independent person had agreed to become
      a witness and in the light of such a statement, there is no reason for the
      courts to doubt the version of the police and the recoveries made.
             80. When recovery is made pursuant to the statement of accused,
D     seizure memo prepared by the Investigating Officer need not mandatorily
      be attested by independent witnesses. In State Govt. of NCT of Delhi
      v. Suni/ and Another (200 I) 1 SCC 652, it was held that non-attestation
      of seizure memo by independent witnesses cannot be a ground to
      disbelieve recovery of articles' list consequent upon the statement of the
 E    accused. It was further held that there was no requirement, either under
      Section 27 of the Evidence Act or under Section 161 Cr.P.C. to obtain
      signature of independent witnesses. If the version of the police is not
      shown to be unreliable, there is no reason to doubt the version of the
      police regarding arrest and contents of the seizure memos.
 F          81. In the landmark case of P11/11kuri Kottaya v. King-Emperor
      AIR 1947 PC 67, the Privy Council has laid down the relevance of
      information received from the accused for the purpose of Section 27 of
      the Evidence Act. Relevant extracts from the judgment are as under:
             "l 0. Section 27, which is not artistically worded, provides an
 G           exception to the prohibition imposed by the preceding section, and
             enables certain statements made by a person in police custody to
             be proved. The condition necessary to bring the section into
             operation is that the discovery of a fact in consequence of
             information received from a person accused of any offence in the
             custody of a Police officer must be deposed to, and thereupon so
 H           much of the information as relates distinctly to the fact thereby
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             287
                  [R. BANUMATHI, J.]

      discovered may be proved. The section seems to be based on the           A
      view that if a fact is actually discovered in consequence of
      information given, some guarantee is afforded thereby that the
      information was true, and accordingly can be safely allowed to be
      given in evidence; but clearly the extent of the information
      admissible must depend on the exact nature of the fact discovered
                                                                               B
      to which such information is required to relate."
      The test laid down in P11/11kuri Kottaya 's case was reiterated in
several subsequent judgments of this Court including State (NCT of
Delhi) v. Navjot Sandhu alias Afsan G11r11 (2005) 11 SCC 600.
       82. In the light of above discussion, it is held that recoveries made   c
pursuant to disclosure statement of the accused are duly proved by the
prosecution and there is no substantial reason to discard the same.
Recovery of articles of PW-I and also that of victim at the instance of
the accused is a strong incriminating evidence against accused, especially
when no plausible explanation is forthcoming from the accused. Fm1her,
as discussed infra, the scientific examination of the articles recovered       D
completely place them in line with the chain of events described by the
prosecution.
       83. DNA Analysis: In order to establish a clear link between the
accused persons and the incident at hand, the prosecution has also
adduced scientific evidence in the form ofDNA analysis. For the purpose E
of DNA profiling, various samples were taken from the person of the
prosecutrix; the complainant; the accused, their clothes/articles; the
dumping spot; the iron rods; the ashes of burnt clothes; as well as from
the offending bus. PW-45 Dr. B.K. Mohapatra analysed the said DNA
profiles and submitted his report thereof. In his report, he concluded that F
the samples were authentic and capable of establishing the identities of
the persons concerned beyond reasonable doubt. Prosecution relies
upon the biological examination of various articles including the samples
collected from the accused and the DNA profiles generated from the
blood-stained clothes of the accused. The DNA profile generated from
the samples collected, when compared with the DNA profile generated G
from the blood samples of the victim and PW-1 Awninder Pratab Pandey,
were found consistent.
       84. For easy reference and for completion of narration of events,
I choose to refer to the articles recovered from the accused pursuant to
their disclosure statements and other articles like blood-stained clothes;     H
288               SUPREME COURT REPORTS                                        [2017] 6 S.C.R.


A     samples of personal fluids like blood, saliva with control swab; other
      samples like nail clippings, penil swab, stray hair etc. Details of the
      DNA analysis is contained in the reports of biological examination and
      DNA profiling (Ex.PW-45/A to Ex.PW-45/C), furnished by PW-45 Dr.
      B.K. Mahapatra.
                                    AccrsID RAM mGH (A·l) (Dead)
B
             _<\RTICLES                      findings of D:XA generated      D:XA profile generated
        RECOVERED FRO:\I                             from clothes           from other articles, swab
              ACffSED                                                                 etc.
        Recon11· pursuant to      Samples      Items     Items matching      Findings (Ex.Pw45.iB)
         disclosure statement ~ollected from matching DXA profile of
                               the person of D:XA            'lclim.
 c                              the accused profile of
                                               P\\l
                 m                    (2)        13)           (4)                     (5)
       (I) Bus(Ex.P-1) DL-IPC- (!)Penile         -NA-   (I) DNA profile (!)DNA profile generated
       0149                         swab                generated from from Blood detected in
       (2) Keys of Bus, (Ex.P-                          Partially      tom gauze of a.ccused matched
       74!2)                        (2) Saliva          green and black the DNA profile generated
D      (3 )Driving        License,                      colored striped from rectal s\\'ab of the
       Fitness Certificate, Pemlit (3)Nail              half sleeve t-shin ,-ictim.
       Pollution Certificate and clippings              found to be female
       other documents of bus                           in origin and 12) Blood as well as
       bearing registration no. (4)Control              consistent 11ith the human spennatozoa was
       DL-1PC--0149(Ex.P-74/4) swab                     DNA profile of dmcted in the underwear
       (4) Two blood-stained                            ,-ictim (lq) [S7J of the accused and the
 E     rods (fa.P49, I and (5)Blood in                   ~Ex. PW 45 B]. DNA profile generated
       Ex.4912)                     gauze                                    tlme-from was found to
       (5) Indian Bank Debit                            (2) DNA profile be female in origin,
       Card(ExP74:3)                (6)                 generated from consistent 11ith that of the
       (6) Blood-stained green Underwear                bro11n colored victim.
        and black coloured T-                           plastic chappal
        Shirt (Ex. i4c6) and blood-                     found to be female (3) The DNA profile
 F      stained bro1m coloured                          in origi11 and developed from blood
        chappal (Ex. 7O).                               consistent with the stains from both tl1e iron
       (7) Some ashes and partly                        DNA profile of rods, recovered at the
       burnt clothes (seizure                           ,·ictim (lq) [8.73 instance of accused Ram
       memo Ex. PW-74"111.)                             'g Ex. PW 45.B] Singh from bus, is of
                                                                             female      origin     and
                                                                             consistent with the DNA
 G                                                                           profile of prosecutrix.

                                                                            {4) The DNA profile
                                                                            denloped from bumt
                                                                            clothes pieces was found
                                                                            to be of male origin and
                                                                            consistent 11ith the DNA
                                                                            profile of the compainant
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                                                           289
                [R. BANUMATHI, J.]


                                     ACCt:SED ~IrKESH (A-2)
                                                                                                            A

    ARTICLES                           Findings ofD!\"A generated D!\"A profile generated from
  RECOVERED                                    from clothes         other articles, mab etc.
 FR01IACCt:SED
 Recore!")· pursuant     Samples          Items          Items     IDl>~GS (fa.PW451B)
    to disclos11re    collected from matching          matchillg                                            B
      statement      the person of the     D!\"A     DXAprofile
                          accused       profile of of\1ctim                                             .



                                                PWI
         (l)                   (2)                (3)           (4)                      (5)
Disclosure statement (1) Blood m                -NA-    • The DNA (1) Blood was detected in
morded             on gauze                               profile       gauze and nail dippings but it      c
 18.12.2012 by PW-60 (2)Nail clippings                    generated did not yield female fraction
HC Mahabir (Ex.PW- (3) Urethral swab                      from blood· DNA for analvsis.
60il)                 (4)Glans swab                       stained       (2)Human Spennatazoa was
Following       items (5)Cui of pubic                     pants,        detected in urethral swab, ~ans
recovered:            hair                                !·shins and swab and underwear but the
 I. one blood-stained (6) Salin                           jacl.:ets     same did not ~ield female
green T-shirt         (7) Stray hair                      recovered at fraction DNA for analysis.           D
1. one blood-stained (S) Underwear.                       the behest
grey colour pants.                                        of accused
3.      blood-stained                                     matched the
bluish grey colour                                        DNAproftle
jacket.                                                    of       the
                                                          \ictim.                                           E
                                     ACCt:Sl:D AKSH.W (A-3)

      (l)                (2)                (3)               (4)                       (5)
 1) One black l) Blood               m   • One      set • The DNA         • DNA profile generated from
'ag containing ~auze                      of the         profile            breast swab of the victim was
olood-stained     2) Saliva               DNA            generated          found consistent "1th the
blue j cans       3) Control gauze        profile        from               DNA profile of the blood of     F
"2) Blue black    ~)Penile Swab           generated      blood-             the accused Akshay.
Nokia mobile      5)Nail clippings        from           stained
phone bearing     6) Underwear            jeans          red
 MEI              7) Scalp hair and       pant of        coloured
No.359286i>l015 ~bic hair                 the            bani an
  3)     Blood- S) Red colour             accused        recovered
stained      red i>anian                  matched        at         the
~oloured banian.                          the DNA        behest of                                          G
  4) One silnr                            profile of     accused
ring                                      PWL            matched
''.5) Two metro                                          the DNA
 cards                                                   profile of
                                                         the
                                                         \.ictim.
                                                                                                            H
290               SUPREME COURT REPORTS                                         [2017) 6 S.C.R.


A                                        ACCUS£D\'P.iAY(A4)
      ARTICLISRECO\t:RED                            Findings ofD:'iA generated D:'iA generated
        FRmIACCIISED                                        from clothes       from other articles,
                                                                                    swab etc.
         Recore11· pursuant to          Samples        Items          Items        FIXDI:'iGS
          disclosure statement       collected from matching        matching      (EI.PW45/B)
                                    the pmon of the     DXA        DXAprofile
B                                       arcused      profile of     of\1ctim.
                                                        PW!
                   (l)                    (2)            (3)           (4)                (5)
       I.Blood-stained blue coloured (l) Blood in • One set • The DNA ll) Blood was
      jeans (Ex.P-68'1)              gauze             of the profile           detected only in
      2.Blood-stainedblack coloured (2)Nail clippings DNA         genermd       gauze, nail clipping
      jacket (Ex.P-682)              (J) Urethral swab profile    from blood· and pubic hair of the
c     3.blood·stained full slemd (4)Glans swab         generated stained        accused but the same
       black coloured T·shin (Ex.P· (S)Cut of pubic from          undmcear, did not yield female
      68J)                           hair              sports     chappal and fraction DNA for
      4.blue coloured chappals       (6) Sali\"a       jacket of jacket         analysis.
      (Ex.P-6S4)                     (7) Srra y hair   the        reconred at
      5. Hush Puppy shoes(Ex.P2 (S) Underwear          accused    the behest of
       under Ex. PW·63/C)            (9)lllons Pubis   matched    accused
D     6. Black coloured Nokia                          the DNA matched the
      mobile phone 11ith IMEi                          profile of DKA profile
      No.3i31S303904739l                               PW!.       ofthn-ictim.
      (ExP·68.5)
                                 ACCUSED PA\H.'i GFPTA@KALr (A·5)
                  (1)                    (2)            (3)            (4)                 (5)
 E    Disclosure statement reccrded (1) Blood in • One set of (1) Another set (l) Blood was
      by PW·60 HC Mahabir.          gauze            the DNA of DNA profile detected onlv in
      Following items recovered on (2)Nail dippings  profile    generated from gauze and . nail
      19-12.2011:                   (J)Urethral swab generated S\t'e:Her           clipping of the
      (I )one blood-5lained black (4lGlans swab      from black retO'·ered at the accu><d but the same
      coloured sweater              (5) Cut of pubic coloured behest of the did not vi•ld fomale
      (Ex. P·6S,6)                  hair             5Weater of accused            fraction. DNA for
      (2Jblood-mined coca cola (6) Saliva            die        matched the analysis.
 F    (colour) pants. (Ex.68 7)     (7) Stray hair   accused DNA profile of
      (3)Blood·staincd       brown                   matched the victim.
      coloured underwear (Ex.P·                      the DNA
      6Sc'S)                                         profile of (2) DNA profile
      (4)Brottn coloured sports                      PW-I.      generated from
      shoes                                                     spom shoes of
      (ExHS 9)                                                  tl1e     accused
      (5)0ne wristwatch of Sonata                               matched "1th
G     make                                                      the DNA profile
      (Ex.P-3)                                                  of            tl1e
      (6)Two currencv notes of                                  prosecutrix
      Rs.500 - each (Ex.P· 7)
      Site plan of the spot from
      where the said articles are
      rccorered .and seized
      (h.PW-68).
 H
     MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                                 291
                   [R. BANUMATHI, J.]

         85. Before considering the above findings of DNA analysis                  A
  contained in tabular form, let me first refer to what is DNA, the infallibility
  of identification by DNA profiling and its accuracy with certainty. DNA
  - De-oxy-ribonuc/eic acid, which is found in the chromosomes of the
  cells ofliving beings, is the blueprint ofan individual. DNA is the genetic
  blue print for life and is virtually contained in every cell. No two persons,
                                                                                    B
  except identical twins have ever had identical DNA. DNA profiling is
  an extremely accurate way to compare a suspect's DNA with crime
  scene specimens, victim's DNA on the blood-stained clothes of the
  accused or other articles recovered, DNA testing can make a virtually
  positive identification when the two samples match. A DNA finger print
  is identical for every part of the body, whether it is the blood, saliva,         c
  brain, kidney or foot on any part of the body. It cannot be changed; it will
  be identical no matter what is done to a body. Even relatively minute
  quantities of blood, saliva or semen at a crime scene or on clothes can
  yield sufficient material for analysis. The Experts opine that the
  identification is almost hundred per cent precise. Using this i.e. chemical
                                                                                    D
· stmcture of genetic information by generating DNA profile of the
  individual, identification of an individual is done like in the traditional
  method of identifying finger prints of offenders. Finger prints are only
  on the fingers and at times may be altered. Burning or cutting a finger
  can change the make of the finger print. But DNA cannot be changed
  for an individual no matter whatever happens to a body.                           E
      86. We may usefully refer to Advanced Law Lexicon, 3"1 Edition
 Reprint 2009 by P. Ramanatha Aiyar which explains DNA as under:-
         "DNA.- De-oxy-ribon11cleic acid, the nucleoprotein of
        chromosomes.
                                                                                    F
        The double-helix structure in cell nuclei that carries the genetic
        information of most living organisms.
        The material in a cell that makes up the genes and controls
        the cell. (Biological Term)
        DNA finger printing. A method of identification especially                  G
        for evidentiary purposes by analyzing and comparing the
        DNA from tissue samples. (Merriam Webster)"
        In the same Law Lexicon, learned author refers to DNA
 identification as under:
                                                                                    H
292            SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A           DNA identification. A method of comparing a persons
            deoxyribonucleic acid (DNA) - a patterned chemical structure
            ofgenetic information - with the DNA in a biological specimen
            (such as blood; tissue, or hair) to determine if the person is
            the source of the specimen. -Also termed DNA finger printing;
            genetic finger printing (Black, 7'h Edition, 1999)
B
             87. DNA evidence is now a predominant forensic technique for
      identifying criminals when biological tissues are left at the scene of crime
      or for identifying the source of blood found on any articles or clothes
      etc. recovered from the accused or from witnesses. DNA testing on
      samples such as saliva, skin, blood, hair or semen not only helps to convict
c     the accused but also serves to exonerate. The sophisticated technology
      of DNA finger printing makes it possible to obtain conclusive results.
      Section 53A Cr.P.C. is added by the Code of Criminal Procedure
      (Amendment) Act, 2005. It provides for a detailed medical examination
      of accused for an offence of rape or attempt to commit rape by the
D     registered medical practitioners employed in a hospital run by the
      Government or by a local authority or in the absence of such a practitioner
      within the radius of 16 kms. from the place where the offence has been
      committed by any other registered medical practitioner.
            88. Observing that DNA is scientifically accurate and exact science
 E    and that the trial court was not justified in rejecting DNA report, in
      Santosh Kumar Singh v. State through CBI (2010) 9 SCC 747, the
      Court held as under:-
             "65. We now come to the circumstance with regard to the
             comparison of the semen stains with the blood taken from the
 F           appellant. The trial court had found against the prosecution on
             this aspect. In this connection, we must emphasise that the court
             cannot substitute its own opinion for that of an expert. more
             particularly in a science such as DNA profiling which is a recent
             development.

 G           66. Dr. Lalji Singh in his examination-in-chief deposed that he had
             been involved with the DNA technology ever since the year 1974
             and he had returned to India from the UK in 1987 and joined
             CCMB, Hyderabad and had developed indigenous methods and
             techniques for DNA finger printing which were now being used
             in this country. We also see that the expertise and experience of
 H
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                               293
              [R. BANUMATHI, J.]

 Dr. Lalji Singh in his field has been recognised by this Court In           A
 Kamalanantha v. State of T.N. (2005) 5 SCC 194 We further
 notice that CW 1 Dr. G.V. Rao was a scientist of equal repute and
 he had in fact conducted the tests under the supervision of Dr.
 Lalji Singh. It was not even disputed before us during the course
 of arguments that these two scientists were persons of emi1Jence            B
 and that the laboratory in question was also held in the highest
 esteem in India.
 67. The statements of Dr. Lalji Singh and Dr. G.V. Rao reveal
 that the samples had been tested as per the procedure developed
 by the laboratory, that the samples were sufficient for the purposes
 of comparison and that there was no possibility of the samples              C
 having been contaminated or tampered with. The two scientists
 gave very comprehensive statements supported by documents
 that DNA of the semen stains on the swabs and slides and the
 underwear of the deceased and the blood samples of the appellant
 was from a single source and that source was the appellant.                 D
 68. It is significant that not a single question was put to PW Dr.
 Lalj i Singh as to the accuracy of the methodology or the procedure
 followed for the DNA profiling. The trial court has referred to a
 large number of textbooks and has given adverse findings on the
 accuracy of the tests carried out in the present case. We are               E
 unable to accept these conclusions as the court has substituted its
 own opinion ignoring the complexity of the issue on a highly
 technical subject, more particularly as the questions raised by the
 court had not been put to the expert witnesses. In Bhagwan Das
 v. State of Rajasthan AIR 1957 SC 589 it has b~en held that it
 would be a dangerous doctrine to lay down that the report of an             F
 expert witness could be brushed aside by making reference to
 some text on that subject without such text being put to the expert.
   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          G
   DNA report as being sci en ti fically accurate and an exact science
   as held by this Court in Kam ti Devi v. Poshi Ram (200 I) 5 SCC
   311. 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         H
294            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A           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."
            [emphasis added].
          89. From the evidence of PW-45 and the details given in the above
B  tabular form, it is seen that the DNA profile generated from blood-stained
   clothes of the accused namely, A-I Ram Singh (dead); A-2 Mukesh; A-
   3 Akshay; A-4 Vinay; and A-5 Pawan Gupta@ Kalu are found consistent
   with the DNA profile of the prosecutrix. Also as noted above, two sets
   of DNA profile were generated from the black colour sweater of the
   accused Pawan. One set of DNA profile found to be female in origin,
 c consistent with the DNA profile of the prosecutrix; other set found to be
   male in origin, consistent with the DNA profile of PW-I. Likewise, two
   sets of DNA profile were generated from the black colour sports jacket
   of accused Vinay, one of which matched the DNA profile of the
   prosecutrix and another one matched the DNA profile of PW- I. Likewise,
 D two sets of DNA profile were generated from the jeans pant of accused
   Akshay, one of which matched the DNA profile of the prosecutrix and
   another one matched the DNA profile of PW- I. The result of DNA
   analysis and that of the DNA profile generated from blood-stained clothes
   of the accused found consistent with that of the victim is a strong piece
   of evidence incriminating the accused in the offence.
 E
          90. DNA profile generated from the blood samples of accused
   Ram Singh matched with the DNA profile generated from the rectal
   swab of the victim. Blood as well as human spermatozoa was detected
   in the underwear of the accused Ram Singh (dead) and DNA profile
   generated therefrom was found to be female in origin, consistent with
 F that of the victim. Likewise, the DNA profile generated from th~ breast
    swab of the victim was found consistent with the DNA profile of the
    accused Akshay.
             91. As discussed earlier, identification by ON A genetic finger print
      is almost hundred per cent precise and accurate. The DNA profile
 G    generated from the blood-stained clothes of the accused and other articles
      are found consistent with the DNA profile of the victim and DNA profile
      of PW-I; this is a strong piece of evidence against the accused. In his
      evidence, PW-45 Dr. B.K. Mahapatra has stated that once DNA profile
      is generated and found consistent with another DNA profile, the accuracy
 H    is hundred per cent and we find no reason to doubt his evidence. As
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              295
                 [R. BANUMATHI, J.]

pointed out by the Courts below, the counsel for the defence did not            A
raise any substantive ground to rebut the findings of DNA analysis aiid
the findings through the examination of PW-45. The DNA report and
the findings thereon, being scientifically accurate clearly establish the
link involving the accused persons in the incident.
       92. Conspiracy: The accused have been charged with the offence           B
of "conspiracy" to commit the offence of abduction, robbery/daco_ity,
gang rape and unnatural sex, in pursuance of which the accused are
alleged to have picked up the prosecutrix and PW-I. The charge sheet
also states that in furtherance of conspiracy, the accused while committing
the offence of gang rape on the prosecutrix intentionally inflicted bodily
injury with iron rod and inserted the iron rod in the vital parts of her body   c
with the common intention to cause her death.
        93. The learned amicus Mr. Sanjay Hegde submitted that there is
no specific evidence to prove that there was prior meeting of minds of
the accused and that they had conspired together to commit grave offence
by use of iron rod, resulting in the death of the victim and, therefore,        D
insertion/use of iron rod by any one of the accused cannot be attributed
to all the accused in order to hold them guilty of the offence of murder.
        94. The essentials of the offence of conspiracy and the manner in
which it can be proved has been laid down by this Court through a
catena of judicial pronouncements and I choose to briefly recapitulate          E
the law on the point, so as to detetmine whether the offence is made out
in this case or not. Meeting of minds for committing an illegal act is sine
qua non of the offence of conspiracy. It is also obvious that meeting of
minds, thereby resulting in formation of a consensus between the parties,
can be a sudden act, spanning in a fraction of a minute. It is neither          F
necessary that each of the conspirators take active part in the commission
of each and every conspiratorial act, nor it is necessary that all the
conspirators must know each and every details of the conspiracy.
Essence of the offence of conspiracy is in agreement to break the law
as aptly observed by this Court in Major E.G. Barsay v. State ofBombay
(1962) 2 SCR 195.                                                               G

       95. So far as the English law on conspiracy is concerned, which is
the source ofindian law, KENNY has succinctly stated that in modern
times conspiracy is defined as an agreement of two or more persons to
effect any unlawful purpose, whether as their ultimate aim or only as a
                                                                                H
296            SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A     means to it. Stressing on the need of formation of an agreement, he has
      cautioned that conspiracy should not be misunderstood as a purely mental
      crime, comprising the concurrence of the intentions of the parties. The
      meaning of an 'agreement', he has explained by quoting following words
      of Lord Chelmsford:
B           "Agreement is an act in advancement of the intention which each
            person has conceived in his mind."
             KENNY has further said that it is not mere intention, but the
      announcement and acceptance ofintentions. However, it is not necessary
      that an overt act is done; the offence is complete as soon as the parties
 c    have agreed as to their unlawful putpose, although nothing has yet been
      settled as to the means and devices to be employed for effecting it.
      [Refer KENNY on Outlines of Criminal Law, 19th Edn., pp. 426-
      427)
             96. The most important aspect of the offence of conspiracy is
D     that apart from being a distinct statutory offence, all the parties to the
      conspiracy are liable for the acts of each other and as an exception to
      the general law in the case of conspiracy intent i.e. mens rea alone
      constitutes a crime. As per Section 10 of the Evidence Act, once
      reasonable ground is shown for believing that two or more persons have
      conspired to commit an offence then, anything done by any one of them
 E    in reference to their common intention, is admissible against the others.
      As held in State of Maharashtra v. Damu and Others (2000) 6 SCC
      269, the only condition for the application of the rule in Section I 0 of the
      Evidence Act is that there must be reasonable ground to believe that
      two or more persons have conspired together to commit an offence.
 F           97. The principles relating to the offence of criminal conspiracy
      and the standard of proof for establishing offence of conspiracy and the
      joint liability of the conspirators have been elaborately laid down in
     Shivnarayan Laxminarayan Joshi and Ors. v. State of Maharashtra ·
     (1980) 2 SCC 465; Mohammad Usman Mohammad Hussain
 G Maniyar and Ors. v. State of Maharashtra (1981) 2 SCC 443; Kehar
   _ Singh and Ors. v. State (Delhi Administration) (1988) 3 SCC 609;
     State of Maharashtra and Ors. v. Som Nath Thapa and Ors. ( 1996)
     4 SCC 659; State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru
     (2005) 11 SCC 600; State Through Superintendent of Police, CBI/
     SIT v. Nalini and Ors. (1999) 5 SCC 253 Yakub Abdul Razak
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             297
                  [R. BANUMATHT, J.)

Menon v. The State of Maharashtra, through CBI, Bombay (2013)                  A
13 sec I.
        98. Another significant aspect of the offence of crimina 1conspiracy
is that it is very rare to find direct proof of it, because of the very fact
that it is hatched in secrecy. Unlike other offences, criminal conspiracy
in most of the cases is proved by circumstantial evidence only. It is          B
extremely rare that direct evidence in proof of conspiracy can be
forthcoming from wholly disinterested, quarters or from utter strangers.
Conspiracy is a matter ofinference, deduced from words uttered, criminal
acts of the accused done in furtherance of conspiracy. (Vide Noor
Mohammad Mohd. Yusuf Momin v. State of Maharashtra (1970) 1
SCC 696; Firozuddin Basheeruddin and Ors. v. State ofKera/a (2001)             C
7 SCC 596; Ram Narain Poply v. Central Bureau of Investigation
and Ors. (2003) 3 SCC 641; Yogesh@Sachin Jagdish Joshi v. State
of Maharashtra (2008) 10 SCC 394; Pratapbhai Hamirbhai Solanki
v. State of Gujarat and Anr. (2013) 1 SCC 613; Chandra Prakash v.
State of Rajasthan (2014) 8 SCC 340 etc.)                                      D
      99. In Yogesh @Sachin Jagdish Joshi v. State of Maharashtra
(2008) 10 SCC 394, this Court, after referring to the law laid down in
several pronouncements, summarised the core principles of law of
conspiracy in-the following words:
       "23. Thus, it is manifest thatthe meeting of minds of two or more       E
       persons for doing an illegal act or an act by illegal means is sine
       qua non of the criminal conspiracy but it may not be possible to
       prove the agreement between them by direct proof. Nevertheles·s,
       existence of the conspiracy and its objective can be inferred from
       the surrounding circumstances and the conduct of the accused.           F
       But the incriminating circumstances must form a chain of events
       from which a conclusion about the guilt of the accused could be
       drawn. It is well settled that an offence of conspiracy is a
       substantive offence and renders the mere agreement to commit
       an offence punishable even if an offence does not take place
       pursuant to the illegal agreement."                                     G
        100. In the present case, there is ample evidence proving the
acts, statements and circumstances, establishing firm ground to hold that
the accused who were present in the bus were in prior concert to commit
the offence of rape. The prosecution has established that the accused
                                                                               H
298             SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A     were associated with each other. The criminal acts done in furtherance
      of conspiracy, is establif!1ed by the sequence of events and the conduct
      of the accused. Existence of conspiracy and its objects could be infeITed
      from the chain of events. The chain of events described by the victim in
      her dying declarations coupled with the testimony of PW-I clearly
      establish that as soon as the complainant and the victim boarded the bus,
B
      the accused switched off the lights of the bus. Few accused pinned
      down PW-I and others committed rape on the victim in the back side of
      the bus one after the other. The accused inserted iron rods in the private
      parts of the prosecutrix, dragging her holding her hair and then threw
      her outside the bus. The victim has also maintained in her dying declaration
 c    that the accused persons were exhorting that the victim has died and
      she be thrown out of the bus. Ultimately, both the victim and the
      complainant were thrown out of the moving bus through the front door,
      having failed to throw them through the rear door. The chain of action
      and the act of finally throwing the victim and PW-I out of the bus show
      that there was unity of object among the accused to commit rape and
 D
      destroy the evidence thereon.
             I 0 I. In this case, the existence of conspiracy is sought to be drawn
      by an inference from the circumstances: (i) the accused did not allow
      any other passenger to board the bus after PW-I and the prosecutrix
      boarded the bus; (ii) switching off the lights; pinning PW-I down by
 E    some while others commit rape/unnatural sex with the prosecutrix at the
      rear side of the bus; (iii) exhortation by some of the accused that the
      victim be not left alive; and (iv) their act of throwing the victim and PW-
      ! out of the running bus without clothes in the wintery night of December.
      Existence of conspiracy and its objects is inferred from the above
 F    circumstances and the words uttered. In my view, the courts below
      have rightly drawn an inference that there was prior meeting of minds
      among the accused and they have rightly held that the prosecution has
      proved the existence of conspiracy to commit gang rape and other .
      offences.

 G           102. As already stated in the beginning, in achieving the goal of
      the conspiracy, several offences committed by some of the conspirators
      may not be known to others, still all the accused will be held guilty of the
      offence of criminal conspiracy. The trial court has recorded that the
      victim's complete alimentmy canal ji-om the level of duodenum upto
      5 cm from anal sphincter was completely damaged. It was beyond
 H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            299
                 [R. BANUMATHI, J.]

repair. Causing of damage to jejunum is indicative of the fact that A
 the rods were inserted through vagina and/or anus upto the level of
jejunum. " Further "the septicemia was the direct result of internal
multiple injuries". Use of iron rod by one or more of the accused is
 sufficient to inculpate all the accused for the same. In the present case,
 gang rape and use of iron rod caused grave injuries to victim's vagina
                                                                            B
and intestines; throwing her out of the bus in that vegetative state in
chilled weather led to her death; all this taking place in the course of
same transaction and with the active involvement of all the accused is
more than sufficient evidence to find the accused guilty of criminal
conspiracy. I, thus, affirm the findings of the courts below with regard to
conviction of all the accused under Section 120-B TPC and Section 302 c
read with Section 120-B IPC.
        I 03. Apart from considering the principles of law of conspiracy
distinctly, if we consider it in the context of 'conspiracy to commit the
offence of gang rape, unnatural sex etc., as is specifically relevant in the
present case, we find that existence of common intent and joint liability D
is already implicit in the offence of gang rape. Gang rape is dealt with in
clause (g) of sub-section (2) of Section 376 TPC read with Explanation
1. As per Explanation 1 to Section 376 IPC, "where a woman is raped
by one or more in a group of persons acting in furtherance of their
common intention, each of the persons shall be deemed to have committed
gang rape" and all of them shall be liable to be punished under sub- E
section (2) of Section 376 IPC. As per Explanation l, by operation of
deeming provision, a person who has not actually committed rape is
deemed to have committed rape even if only one of the groups has
committed rape in fu11herance of the common intention.
        104. While considering the scope of Section 376(2)(g) TPC read F
with Explanation, inAs/10k Kumar v. State of Haryana (2003) 2 SCC
143, this Court held as under:-
      "8. Charge against the appellant is under Section 376(2)(g) IPC.
      Tn order to establish an offence under Section 376(2)(g) IPC,
      read with Explanation T thereto, the prosecution must adduce            G
      evidence to indicate that more than one accused had acted in
      concert and in such an event, if rape had been committed by even
      one, all the accused will be guilty irrespective of the fact that she
      had been raped by one or more of them and it is not necessary for
      the prosecution to adduce evidence of a completed act ofrape by         H
300            SUPREME COURT REPORTS                            [2017] 6 S.C.R.


 A          each one of the accused. In other words, this provision embodies
            a principle of joint liabilitv and the essence of that liabilitv is the
            existence of common intention; that common intention presupposes
            prior concert which may be determined from the conduct of
            offenders revealed during the course of action and it could arise
            and be formed suddenly, but, there must be meeting of minds. It is
 B
            not enough to have the same intention independently of each of
            the offenders. In such cases, there must be criminal sharing marking
            out a certain measure of jointness in the commission of offence.
            [Emphasis added]"
 C         So far as the offence under Section 376 (2)(g) TPC, the sharing of
   common intention and the jointness in commission ofrape is concerned,
   the same is established by the presence of all the accused in the bus;
   their action in concert as established by the dying declaration of the
   prosecutrix and the evidence of PW-I, presence of blood in the clothes
   of all the accused, DNA profile generated thereon being consistent with
 D the DNA profile of the victim.
              105. The prosecution has established the presence of the accused
      in the bus and the heinous act of gang rape committed on the prosecutrix
      by the accused by the ample evidence - by the multiple dying declaration
      of the victim and also by the evidence of PW-I and medical evidence
 E    and also by arrest and recovery of incriminating articles of the victim
      and that of PW-1 complainant. The scientific evidence in particular
      DNA analysis report clearly brings home the guilt of the accused.
              106. Section 235(2), Criminal Procedure Code: Once the
      conviction of the accused persons is affirmed, what remains to be decided
 F    is the question of appropriate punishment imposed on them. On the aspect
      of sentencing, we were very effectively assisted by the learned Amicus
      Curiae. Accused were convicted vide judgment and order dated
      10.09.2013 and on the very next day of judgment i.e. on 11.09.2013,
      the arguments on sentencing were concluded. Thereafter, a
      separate order on sentence was pronounced on 13.09.2013 ..
 G
             107. Counsel for the appellants as well as the learned amicus Mr.
      Raju Ramachandran contended that no effective opportunity was given
      to the appellants to lead their defence on the point of sentencing as
      mandated under Section 235(2) Cr.P.C. and each of the accused were
      not individually heard in person on the question of sentence. Learned
 H
     MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                          301
                   [R. BANUMATHI, J.]

  Amicus Curiae, Mr. Raju Ramachandran submitted only the counsel A
- for the accused were heard and all the accused were treated alike
  irrespective of their individual background and were sentenced to death.,
  which is in clear violation of the mandate of Section 235(2) Cr.P.C. It
  was submitted that Section 235(2) Cr.P.C. is intended to give an opportunity
  to the accused to place before the Court all the relevant facts and material B
  having a bearing on the question of sentence and, therefore, salutary
  provision should not have been treated as a mere formality by the trial
  court. In support of his contention, the leamedAmicus has placed reliance
  upon a number of judgments viz. - (i) Dagdu & Ors. v. State of
  Maharashtra (1977) 3 SCC 68; (ii) Malkiat Singh and Ors. v. State
  of Punjab (1991) 4 SCC 341; and (iii) Ajay Pandit alias Jagdish C
 Dayabhai Patel and Anr. v. State of Maharashtra (2012) 8 SCC 43.
         108. Section 235 Cr.P.C. deals with the judgments of acquittal or
 conviction. Under Section 235(2) Cr.P.C., where the accused is convicted,
 save in cases of admonition or release on good conduct, the Judge shall
 hear the accused on the question of sentence and then pass sentence in       D
 accordance with law. Section 235(2) Cr.P.C. imposes duty on the
 court to hear the accused on the question of sentence and then pass
 sentence on him in accordance with law. The only exception to the said
 rule is created in case of applicability of Section 360 Cr.P.C. i.e. when
 the court finds the accused eligible to be released on probation of good
 conduct or after admonition.                                                 E

        109. Section 354 Cr.P.C. specifies the language and contents of
judgment, while delivering the judgment in a criminal case. Section 354(3)
Cr.P.C. deals with judgments where conviction is for an offence punishable
with death penalty or in the alternative with imprisonment for life.
Section 354(3) Cr.P.C. mandates that when the conviction is for an            F
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 for such sentence.
       11 O, The statutory duty to state special reasons under Section        G
 354(3) Cr.P.C. can be meaningfully carried out only if the hearing on
 sentence under Section 235(2) Cr.P.C. is effective and procedurally fair.
 To afford an effective opportunity to the accused, the Court must hear
 on the question of sentence to know about (i) age of the accused; (ii)
 background of the accused; (iii) prior criminal antecedents, if any; (iv)    H
302            SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A     possibility of reformation, if any; and (v) such other relevant factors.
      The major deficiency in the complex criminal justice system is that
      important factors which have a bearing on sentence are not placed before
      the Court. Resultantly, the Courts are constantly faced with the dilemma
      to impose an appropriate sentence. Tn this context, hearing of the accused
      under Section 235(2) Cr.P.C. on the question of sentencing is a cmcial
·B
      exercise which is intended to enable the accused to place before the
      Court all the mitigating circumstances in his favour viz. his social and
      economic backwardness, young age etc. The mandate of Section 235(2)
      Cr.P.C. becomes more crncial when the accused is found guilty of an
      offence punishable with death penalty or with the life imprisonment.
 c           111. It is well-settled that Section 235(2) Cr.P.C. is intended to
      give an opportunity of hearing to the prosecution as well as the accused
      on the question of sentence. The Court while awarding the sentence
      has to take into consideration various factors having a bearing on the
      question of sentence. In case, Section 235(2) Cr.P.C. is not complied
D     with, as held in Dagdu's case, the appellate Court can either send back
      the case to the Sessions Court for complying with Section 235(2) Cr,P.C.
      so as to enable the accused to adduce materials; or, in order to avoid
      delay, the appellate Court may by itself give an opportunity to the parties
      in terms of Section 235(2) Cr.P.C. to produce the materials they wish to
      adduce instead of sending the matter back to the trial Court for hearing
·E
      on sentence. In the present case, we felt it appropriate to adopt the
      latter course and accordingly asked the counsel appearing for the
      appellants to file affidavits/materials on the question of sentence.
      Consequently, vide order dated 03.02.2017, we directed the learned
      counsel for the accused to place in writing, before this Court, their
 F    submissions, whatever they desired to place on the question of sentence.
      Tn compliance with the order, Mr. M.L. Sharma, learned counsel on
      behalf of the accused A-2 Mukesh and A-5 Pawan and Mr. A.P. Singh,
      learned counsel on behalf of the accused Akshay Kumar Singh, Vinay
      Sharma and Pawan Gupta filed the individual affidavits of the accused.

 G           112. Accused Mukesh (A-2) in his affidavit bas stated that he
      was picked up from bis house at Karoli, Rajastban and brought to Delhi
      and reiterated that he is innocent and be denied his involvement in the
      occurrence. In their affidavits, accused Aksbay Kumar Singh (A-3),
      accused Vinay Sharma (A-4) and accused Pawan Gupta (A-5) submitted
      in their individual affidavits have stated that they bail from an ordinary/
 H
    MUKESH &ANR. v. STATE FOR NCT OF DELHI & ORS.                               303
                [R. BANUMATHI, J.]

poor background and are not much educated. They have also stated that           A
they have aged parents and other family members who are dependent
on them and they are to be supported by them. Accused have also stated
that they have no criminal antecedents and that after their confinement
in Tihar Jail they have maintained good behavior.
       113. Learned counsel Mr. M.L. Sharma submitted that accused              B
Mukesh (A-2) is innocent and he has been falsely implicated only because
he is the brother of accused Ram Singh.
        114. Taking us through the affidavits filed by the accused, learned
counsel Mr. A.P. Singh submitted that the accused namely Akshay Kumar
Singh, Pawan Gupta and Vinay Sharma hail from very poor background;             c
and have got large families to support; and have no criminal antecedents.
It has been contended that having regard to the fact that the three accused
have no prior criminal antecedents and are not hardened criminals, the
case.will not fall under "rarest of rare cases" to affirm the death sentence.
       115. Supplementing the affidavits filed by the accused, the learned      D
amicus and senior counsel Mr. Raju Ramachandran and Mr. Sanjay
Hegde submitted that assuming that the conviction of the appellants are
confirmed, the accused who hail from very ordinary poor background
and having no criminal antecedents, the death sentence be commuted to
life imprisonment.
                                                                                E
       116. Question of awarding sentence is a matter of discretion and
has to be exercised on consideration of circumstances aggravating or
mitigating in the individual cases. The courts are consistently faced with
the situation where they are required to answer the new challenges and
mould the sentence to meet those challenges. Protection of society and
deterring the criminal is the avowed object of law. It is expected of the       F
courts to operate the sentencing system as to impose such sentence
which reflects the social conscience of the society. While determining
sentence in heinous crimes, Judges ought to weigh its impact on the
society and impose adequate sentence considering the collective
conscience or society's c1y for justice. While considering the imposition       G
of appropriate punishment, courts should not only keep in view the rights
of the criminal but also the rights of the victim and the society at large.
       117. In State ofM.P. v. Munna C/wubey and Anr. (2005) 2 SCC
710, it was observed as under:
                                                                                H
304            SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A           "10. Therefore, undue sympathy to impose inadequate sentence
            would do more harm to the justice system to undermine the public
            confidence in the efficacy oflaw 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
B
            etc. This position was illuminatingly stated by this Court in Sevaka
            Perumal v. State of Tamil Naidu (1991) 3 SCC 471."
            118. In Jaslmbha Bharatsinh Gohil and Ors. v. State ofGujarat
      (1994) 4 sec 353, while upholding the award of death sentence, this
      Court held that sentencing process has to be stern where the
C     circumstances demand so. Relevant extract is as under:  ·
            "12 ......... The courts are constantly faced with the situation where
            they are required to answer to new challenges and mould the
            sentencing system to meet those challenges. Protection of society
            and deterring the criminal is the avowed object oflaw and that is
D           required to be achieved by imposing appropriate sentence. The
            change in the legislative intendment relating to award of capital
            punishment notwithstanding, the opposition by the protagonist of
            abolition of capital sentence, shows that it is expected of the courts
            to so operate the sentencing system as to impose such sentence
 E          which reflects the social conscience of the society. The sentencing
            process has to be stem where it should be."
             119. Whether the Case falls under rarest of rare cases: .Law
      relating to award of death sentence in India has evolved through massive
      policy reforms-nationally as well as internationally and through a catena
 F    of judicial pronouncements, showcasing distinct phases of our view
      towards imposition of death penalty. Undoubtedly, continuing prominence
      ofreformative approach in sentencing and India's international obligations
      have been majorly instrumental in facilitating a visible shift in comt's
      view towards restricting imposition of death sentence. While closing the
      shutter of deterrent approach of sentencing in India, the small window
G     of 'award of death sentence' was left open in the category of 'rarest of
      rare case' in Bachan Singh v. State ofPunjab ( 1980) 2 SCC 684, by a
      Constitution Bench of this Court.
             120. In Bachan Singh (supra), while upholding the constitutional
      validity of capital sentence, this Court revisited the law relating to death
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                        305
                 [R. BANUMATHI, J.]

sentence at that point of time, by thoroughly discussing the law laid down A
in Jagmoltan Singh v. State of U.P. ( 1973) 1 SCC 20; Rajendra Prasad
v. State of U.P. ( 1979) 3 SCR 646 and other cases. The principles laid
down in Bachan Singlt's case is that, normal rule is awarding of 'life
sentence', imposition of death sentence being justified, only in rarest of
rare case, when the option of awarding sentence of life imprisonment is
                                                                           B
unquestionably foreclosed'. By virtue of Bachan Singh (supra), 'life
imprisonment' became the rule and 'death sentence' an exception. The
focus was shifted from 'crime' to the 'crime and criminal' i.e. now the
nature and gravity of the crime needs to be analysed juxtaposed to the
peculiar circumstances attending the societal existence of the criminal.
The principles laid down in Bachan Singh's case were considered c
in Mach/ti Singh and Ors. v. State of Punjab (1983) 3 SCC 470 and
was summarised as under:-
      "38. In this background the guidelines indicated in Bachan Singh 's
      case (supra) will have to be culled out and applied to the facts of
      each individual case where the question of imposing of death D
      sentence arises. The following propositions emerge from Bachan
      Singh's case (supra):
      (i) The extreme penalty of death need not be inflicted except in
      gravest cases of extreme culpability.
      (ii) Before opting for the death penalty the circumstances of the   E
      'offender' also require to be taken into consideration along with
      the circumstances of the 'crime'.
      (iii) Life imprisonment is the rule and death sentence is an
      exception. In other words death sentence must be imposed only
      when life imprisonment appears to be an altogether inadequate       F
      punishment having regard to the relevant circumstances of the
      crime, and provided, and only provided, the option to impose
      sentence of imprisonment for life cannot be conscientiously
      exercised having regard to the nature and circumstances of the
      crime and all the relevant circumstances.                           G
      (iv) A balance sheet of aggravating and mitigating circumstances
      has to be drawn up and in doing so the mitigating circumstances
      have to be accorded full weightage and a just balance has to be
      struck between the aggravating and the mitigating circumstances
      before the option is exercised."
                                                                          H
306             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A            121. In Mach/ii Sing/i's case, this Court took the view that in
      every case where death penalty is a question, a balance sheet of
      aggravating and mitigating circumstances must be drawn up before
      arriving at the decision. The Court held that for practical application of
      the doctrine of 'rarest of rare case', it must be understood broadly in the
      background of five categories of cases crafted thereon that is 'Manner
B
      of commission of crime', 'Motive', 'Anti-social or socially abhorrent
      nature of the crime', 'Magnitude of crime', and 'Personality of victim of
      murder'. These five categories are elaborated in para nos. 32 to 37 as
      under:-
             "32. The reasons why the community as a whole does not endorse
.c    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
      constmcted 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
D     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 mle of law enforced by it. The very existence of the mle
      of law and the fear of being brought to book operates as a deterrent for
      those who have no scmples in killing others if it suits their ends. Every
 E    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
 F    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 othetwise of retaining death penalty.
      The community may entertain such a sentiment when the crime is viewed
 G    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,
H
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                           307
             [R. BANUMATHI, J.]

 grotesque, diabolical, revolting or dastardly manner so as to arouse    A
 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
 cmelty in order to bring about his or her death.                        B

 (iii) when the body of the victim is cut into pieces or his body is
 dismembered in a fiendish manner.
 IT. Motive for commission of murder
 34. When the murder is committed for a motive which evinces             C
 total depravity and meanness. For instance when (a) a hired
 assassin commits murder for the sake of money or reward (b) a
 cold-blooded murder is committed with a deliberate design in order
 to inherit property or to gain control over property of a ward or a
 person under the control of the murderer or vis-a-vis whom the          D
 murderer is in a dominating position or in a position of tmst, or (c)
 a murder is committed in the course for betrayal of the motherland.
 III. Anti-social or socially abhorrent nature of the crime
 35. (a) When murderofa member ofa Scheduled Caste or minority
 community etc., is committed not for personal reasons but in            E
 circumstances which arouse social wrath. For instance when such
 a crime is committed in order to terrorize such persons and frighten
 them into fleeing from a place or in order to deprive them of, or
 make them surrender, lands or benefits conferred on them with a
 view to reverse past injustices and in order to restore the social
                                                                         F
 balance.
 ( b) In cases of "bride burning" and what are known as "dow1y
 deaths" or when murder is committed in order to remarry for the
 sake of extracting dowry once again or to marry another woman
 on account of infatuation.
                                                                         G
 IV. Magnitude of crime
 36. When the crime is enormous in proportion. For instance when
 multiple murders say of all or almost all the members of a family
 or a large number of persons ofa particular caste, community, or
                                                                         H
308            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A           locality, are committed.
            V. Personality of victim of murder
            37. When the victim of murder is (a) an innocent child who could
            not have or has not provided even an excuse, much less a
            provocation, for murder (b) a helpless woman or a person rendered
B           helpless by old age or infirmity (c) when the victim is a person
            vis-a-vis whom the murderer is in a position of domination or trust
            (d) when the victim is a public figure generally loved and respected
            by the community for the services rendered by him and the murder
            is committed for political or similar reasons other than personal
c           reasons."
              122. The principle laid down in Bachan Singh (supra) andMachhi
      Singh (supra) came to be discussed and applied in all the cases relating
      to imposition of death penalty for committing heinous offences. However,
      lately, it was felt that the courts have not correctly applied the law laid
D     down in Bachan Singh (supra) and Machhi Singh (:mpra), which has
      led to inconsistency in sentencing process in India; also it was observed
      that the list of categories of murder crafted in Mac/1hi Singh (supra),
      in which death sentence ought to be awarded are not exhaustive and
      needs to be given even more expansive adherence owing to changed
      legal scenario. In Swamy Shradhananda alias Murali Manohar
 E    Mishra (2) v. State of Kamataka (2008) 13 SCC 767; a three-Judge
      Bench of this Court, observed as under in this regard:-
            "43. In Machhi Singh the Court crafted the categories of murder
            in which 'the Community' should demand death sentence for the
            offender with great care and thoughtfulness. But the judgment in
 F          Machhi Singh was rendered on 20 July, 1983, nearly twenty five
            years ago, that is to say a full generation earlier. A careful reading
            of the Machhi Singh categories will make it clear that the
            classification was made looking at murder mainly as an act of
            maladjusted individual criminal(s). In 1983 the country was
 G          relatively free from organised and professional crime. Abduction
            for Ransom and Gang Rape and murders committed in course of
            those offences were yet to become a menace for the society
            compelling the Legislature to create special slots for those offences
            in the Penal Code. At the time of Machhi Singh, Delhi had not
            witnessed the infamous Sikh carnage. There was no attacJ< on
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                            309
                 [R. BANUMATHI, J.]

      the country's Parliament. There were no bombs planted by                A
      terrorists killing completely innocent people, men, women and
      children in dozens with sickening frequency. There were no private
      armies. There were no mafia cornering huge government contracts
      purely by muscle power. There were no reports of killings of social
      activists and 'whistle blowers'. There were no reports of custodial
                                                                              B
      deaths and rape and fake encounters by police or even by armed
      forces. These developments would unquestionably find a more
      pronounced reflection in any classification if one were to be made
      today. Relying upon the observations in Bachan Singh, therefore,
      we respectfully wish to say that even though the categories framed
      in Machhi Singh provide very useful guidelines, nonetheless those       c
      cannot be taken as inflexible, absolute or immutable. Further, even
      in those categories, there would be scope for flexibility as observed
      in Bachan Singh itself."
       123. A milestone in the sentencing policy is the concept of 'life
imprisonment till the remainderoflife' evolved in Swamy Shradhananda D
(2)(supra).      In this case, a man committed murder of his wife for
usurping her property in a cold-blooded, calculated and diabolic manner.
The trial court convicted the accused and death penalty was imposed on
him which was affirmed by the High Court. Though the conviction was
affirmed by this Court also on the point of sentencing, the views of a
two-Judge Bench of this Court, in Swamy Shradhananda v. State of E
Karnataka (2007) 12 SCC 282 differed, and consequently, the matter
was listed before a three-Judge Bench, wherein a mid way was carved.
The three-Judge Bench, was of the view that even though the murder
was diabolic, presence of certain circumstances in favour of the accused,
viz. no mental or physical pain being inflicted on the victim, confession F
of the accused before the High Court etc., made them reluctant to award
death sentence. However, the Court also realised that award of life
imprisonment, which euphemistically means imprisonment for a term of
14 years (consequent to exercise of power of commutation by the
executive), would be equally disproportionate punishment to the crime
committed. Hence, in Swamy Shradhananda (2) (.mpra) the Court G
directed that the accused shall not be released from the prison till the
rest of his life. Relevant extract from the judgment reads as under:
      "92. The matter may be looked at from a slightly different angle.
      The issue of sentencing has two aspects. A sentence may be
                                                                              H
310           SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A          excessive and unduly harsh or it may be highly disproportionately
           inadequate. When an appellant comes to this court carrying a
           death sentence awarded by the trial court and confirmed by the
           High Court, this Court may find, as in the present appeal, that the
           case just falls short of the rarest of the rare catego1y and may
           feel somewhat reluctant in endorsing the death sentence. But at
B
           the same time, having regard to the nature of the crime, the Comi
           may strongly feel that a sentence oflife imprisonment that subject
           to remission normally works out to a term of 14 years would be
           grossly disproportionate and inadequate. What then the Comi
           should do? If the Court's option is limited only to two punishments,
 c         one a sentence of imprisonment, for all intents and purposes, of
           not more than 14 years and the other death, the court may feel
           tempted and find itself nudged into endorsing the death penalty.
           Such a course would indeed be disastrous. A far more just,
           reasonable and proper course would be to expand the options and
           to take over what, as a matter of fact, lawfolly belongs to the
 D
           court, i.e., the vast hiatus between 14 years' imprisonment and
           death. It needs to be emphasized that the Court would take
           recourse to the expanded option primarily because in the facts of
            the case, the sentence of 14 years imprisonment would amount to
           no punishment at all."
 E          124. After referring to a catena of judicial pronouncements post
      Bachan Singh (supra) and Mach/ii Singh (supra), in the case of
      Ramnaresh and Ors. v. State of Clzhattisgarh (2012) 4 SCC 257, this
      Court, tried to lay down a nearly exhaustive list of aggravating and
      mitigating circumstances. It would be apposite to refer to the same
 F    here:
            "Aggravating circumstances
            (I) The offences relating to the commission of heinous crimes
                like murder, rape, armed dacoity, kidnapping, etc. by the
                accused with a prior record of conviction for capital felony or
 G              offences committed by the person having a substantial hist01y
                of serious assaults and criminal convictions.
            (2) The offence was committed while the offender was engaged
                in the commission of another serious offence.
            (3) The offence was committed with the intention to create a fear
 H
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                          311
              [R. BANUMATHI, J.]

     psychosis in the public at large and was committed in a public     A
     place by a weapon or device which clearly could be hazardous
     to the life of more than one person.
 (4) The offence of murder was committed for ransom or like
     offences to receive money or monetary benefits.
 ( 5) Hired killings.                                                   B

  (6) The offence was committed outrageously for want only while
      involving inhumane treatment and torture to the victim.
 (7) The offence was committed by a person while in lawful
     custody.                                                           c
 (8) The murder or the offence was committed to prevent a person
     lawfully carrying out his duty like arrest or custody in a place
     of lawful confinement of himself or another. For instance,
     murder is of a person who had acted in lawful ·discharge of
     his duty Under Section 43 Code of Criminal Procedure. When         D
     the crime is enormous in proportion like making an attempt of
     murder of the entire family or members of a particular
     community. When the victim is innocent, helpless or a person
     relies upon the trnst of relationship and social norms, like a
     child, helpless woman, a daughter or a niece staying with a
     father/uncle and is inflicted with the crime by such a trnsted     E
     person.
  (9) When murder is committed for a motive which evidences total
      depravity and meanness.
  (I 0) When there is a cold-blooded murder without provocation.
                                                                        F
  (11) The crime is committed so brntally that it pricks or shocks
      not only the judicial conscience but even the conscience of
      the society.
  Mitigating circumstances
  ( 1) The manner and circumstances in and under which the offence      G
       was committed, for example, extreme mental or emotional
       disturbance or extreme provocation in contradistinction to al\
       these situations in nonnal course.
  (2) The age of the accused is a relevant consideration but not a
                                                                        H
312            SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A               determinative factor by itself.
            (3) The chances of the accused of not indulging in commission of
                the crime again and the probability of the accused being
                reformed and rehabilitated.
            (4) The condition of the accused shows that he was mentally
B               defective and the defect impaired his capacity to appreciate
                the circumstances of his criminal conduct.
            (5) The circumstances which, in normal course oflife, would render
                such a behaviour possible and could have the effect of giving
                rise to mental imbalance in that given situation like persistent
 c              harassment or, in fact, leading to such a peak of human
                 behaviour that, in the facts and circumstances of the case, the
                 accused believed that he was morally justified in committing
                 the offence.
            (6) Where the court upon proper appreciation of evidence is of
D               the view that the crime was not committed in a preordained
                manner and that the death resulted in the course of commission
                of another crime and that there was a possibility of it being
                constrned as consequences to the commission of the primaiy
                crime.
·E          (7) Where it is absolutely unsafe to rely upon the testimony of a
                sole eyewitness though the prosecution has brought home the
                guilt of the accused."
           125. Similarly, this Court in Sangeet and Another v. State of
      Haryana (2013) 2 SCC 452, extensively analysed the evolution of
 F    sentencing policy in India and stressed on the need for further evolution.
      In para (77), this Court emphasized on making the sentencing process a
      principled one, rather than Judge-centric one and held that a re-look is
      needed at some conclusions that have been taken for granted and we
      need to continue the development of the law on the basis of experience
      gained over the years and views expressed in various decisions of this
 G
      Court.
             126. As dealing with sentencing, courts have thus applied the
      "Crime Test", "Criminal Test" and the "Rarest of the Rare Test", the
      tests examine whether the society abhors such crimes and whether such
      crimes shock the conscience of the society and attract intense and
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                         313
                 [R. BANUMATHI, J.]

extreme indignation of the community. Courts have further held that A
where the victims are helpless women, children or old persons and the
accused displayed depraved mentality, committing crime in a diabolic
manner, the accused should be shown no remorse and death penalty
should be awarded. Reference may be made to Holiram Bordoloi v.
State ofAssam (2005) 3 SCC 793 [Para 15-17], Ankush Maruti Shinde B
and Ors. v. State of Maharashtra (2009) 6 SCC 667 (para 31-34),
Kamta Tiwari v. State of Madhya Pradesh (l 996) 6 SCC 250 (para 7-
8), State of U.P. v. Satislz (2005) 3 SCC 114 (para 24-31), Sundar alias
Sundarajan v. State by Inspector of Police and Anr. (2013) 3 SCC
215 (para 36-38, 42-42.7, 43), Sevaka Perumal and Anr. v. State of
Tami/Nadu (1991)3 SCC471(para8-10,12),Mohji/KlzanandAnr. C
v. State of Jharkhand (2015) l SCC 67 (para 63-65).
       127. Even the young age of the accused is not a mitigating
circumstance for commutation to life, as has been held in the case of
Bhagwan Swarup v. State of U.P. ( 1971) 3 SCC 759 (para 5), Deepak
Rai v. State ofBihar (2013) 10 SCC 421 (para 91-l 00) and Slzablmam D
v. State of Uttar Pradesh (2015) 6 SCC 632 (para 36).
       128. Let me now refer to a few cases of rape and murder where
this Court has confirmed the sentence of death. In Molai & Anr. v.
State of M.P. (1999) 9 SCC 581, death sentence awarded to both the
accused for committing offences under Sections 376 (2)(g) IPC, 302        E
read with Section 34 IPC and 201 IPC, was confirmed by this Court.
The accused had committed gang rape on the victim, strangulated her
thereafter and threw away her body into the septic tank with the cycle,
after causing stab injuries. It was held as under:
      "36 ...... It cannot be overlooked that Naveen, a 16 year old girl, F
      was preparing for her l 0th 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 under-garment
      and thereafter took her to the septic tank alongwith the cycle and
      caused injuries with a sharp edged weapon. The accused did not G
      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 circumstances
      from the record of the case to justify the reduction of sentence of H
314            SUPREME COURT REPORTS                         [2017] 6 S.C.R.



A           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."
             129. In Bantu v. State of Uttar Pradesh (2008) 11SCC113, the
B     victim aged about five years was not only raped, but was murdered in a
      diabolic manner. The Court awarded extreme punishment of death, holding
      that 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 must be delicately balanced by the
      Court in a dispassionate manner.
 c
           130. In Ankush Maruti Shinde and Ors. v. State of
      Maharashtra (2009) 6 SCC 667, concerned accused were found guilty
      of offences under Sections 307 IPC, 376(2)(g) IPC and 397 read with
      395 and 396 ofIPC. This Court declined to interfere with the concurrent
      findings of the courts below and upheld death penalty awarded to the
D     accused, taking into account the brutality of the incident, tender age of
      the deceased, and the fact of a minor girl being mercilessly gang raped
      and then put to death. The court also noted that there was no provocation
      from the deceased's side and the two surviving eye witnesses had fully
      corroborated the case of the prosecution.
 E          131. In Mehboob Batclza and Ors. v. State rep. by Supdt. of
      Police (2011) 7 SCC 45, accused were policemen who had wrongfully
      confined one N andagopal in police custody in Police Station Annamalai
      Nagar on suspicion of theft from 30.05.1992 till 02.06.1992 and had
      beaten him to death there with lathis, and had also gang raped his wife
 F    Padmini in a barbaric manner. This Court could not award death penalty
      due to omission of the comis below in framing charge under Section
      302, IPC. However, the observations made by this Court are w01ih quoting
      here:
            "Bane hain ahal-e-hawas muddai bhi munsifbhi Kise vakeel karein
 G          kisse munsifi chaahen - Faiz Ahmed Faiz
            1. If ever there was a case which cried out for death penalty it is
            this one, but it is deeply regrettable that not only was no such
            penalty imposed but not even a charge under Section 302 IPC
            was framed against the accused by the Courts below.
 H
   MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                          315
                 [R. BANUMATHI, J.]

      9. We have held in Satya Narain Tiwari @Jolly andAnr. v. State A
      ofU.P. (2010) 13 SCC 689 and in Sukhdev Singh v. State of
      Punjab, (2010) 13 SCC 656 that crimes against women are not
      ordina1y crimes committed in a fit of anger or for property. They
      are social crimes. They disrnpt the entire social fabric, and hence
      they call for harsh punishment. ........... "
                                                                          B
      132. In Mohd. Mannan @Abdul Mannan v. State of Bihar
(2011) 5 SCC 317, this Court upheld award of death sentence to a 43
year old accused who brntally raped and murdered a minor girl, while
holding a position oftrnst. Relevant considerations of the Court while
affirming the death sentence are extracted as under:
                                                                           c
      "26 .... The postmortem report shows various injuries on the face,
      nails and body of the child. These injuries show the gruesome
      manner in which she was subjected to rape. The victim of crime
      is an innocent child who did not provide even an excuse, much
      less a provocation for murder. Such crnelty towards a young child
      is appalling. The Appellant had stooped so low as to unleash his     D
      monstrous self on the innocent, helpless and defenseless child.
      This act no doubt had invited extreme indignation of the community
      and shocked the collective conscience of the society. Their
      expectation from the authority conferred with the power to
      adjudicate, is to inflict the death sentence which is natural and    E
      logical. We are of the opinion that Appellant is a menace to the
      society and shall continue to be so and he can not be reformed.
      We have no manner of doubt that the case in hand falls in the
      category of the rarest of the rare cases and the trial court had
      correctly inflicted the death sentence which had rightly been
      confirmed by the High Court."                                        F

       In Sltivaji @ Dadya Shankar A/hat v. State of Maharashtra
(2008) 15 SCC 269; Rajendra Pral/iadrao Wasnik v. The State of
Maharashtra (2012) 4 SCC 37 award of death penalty in case of rape
and murder was upheld, finding the incident brutal and accused a menace
for the society.                                                        G

       133. In Dhananjoy Chatterjee alias Dhana v. State of W.B.
(1994) 2 sec 220, a security guard who was entrusted with the security
of a residential apartment had raped and murdered an eighteen year old
inhabitant of one of the flats in the said apartment, between 5 .30 p.m.
and 5.45 p.m. The entire case of the prosecution was based on              H
316            SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A circumstantial evidence. However, Court found that it was a fit case for
      imposing death penalty. Following observation of the Court while imposing
      death penalty is worth quoting:-
            "14. In recent years, the rising crime rate-particularly violent crime
            against women has made the criminal sentencing by the courts a
B           subject of concern. Today there are admitted disparities. Some
            criminals get 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 makingjustice suffer by weakening
            the system's credibility. Of course, it is not possible to lay down
c           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
D           of factors and after considering all those factors and taking an
            over-all view of the situation, impose 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.

E           15. 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 societv's cry for justice against the criminals.
            Justice demands that courts should impose punishment fitting to
 F          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."
            (emphasis added)
 G         134. In a landmark judgment Shankar Kisanrao Khade v. State
      of Maharashtra (2013) 5 SCC 546, Justice Madan B. Lokur
      (Concurring) after analysing various cases of rape and murder, wherein
      death sentence. was confirmed by this Court, in para ( 122) briefly laid
      down the grounds which weighed with the Court in confirming the death
H     penalty and the same read as under:-
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                      317
             [R. BANUMATHI, J.]

 "122. The principal reasons for confirming the death penalty       A
 in the above cases include:
 (1) the cruel, diabolic, brutal, depraved and gruesome nature
 of the crime (Jumman Khan v. State of U.P. (1991) 1 SCC
 752, Dhananjoy Chatterjee i>. State of W.B. (1994) 2 SCC
 220, Laxman Naik v. State ofOrissa (1994) 3 SCC 381, Kamta B
 Tewari v. State of M.P. (1996) 6 SCC 250, Nirma/ Singh v.
 State of Haryana (1999) 3 SCC 670, Jai Kumar v. State of
 M.P. (1999) 5 SCC 1, State of U.P. v. Satish (2005) 3 SCC
 114, Bantu v. State of U.P. (2008) 11 SCC 113, Ankush Maruti
 Shinde v. State of Maharashtra (2009) 6 SCC 667, B.A. Umesh
 v. State of Karnataka (2011) 3 SCC 85, Mohd. Mannan v. C
 State of Bihm· (2011) 5 SCC 31 7 and Rajendra Pra/hadrao
 Wasnik v. State of Maharashtra (2012) 4 SCC 37);
 (2) the crime results in public abhorrence, shoch the judicial
 conscience or the conscience of society or the community
 (Dhananjoy Chatterjee (1994) 2 SCC 220, Jai Kumar (1999)           D
 5 SCC 1, Ankush Maruti Shinde (2009) 6 SCC 667 and Mohd.
 Mannan (20JI) 5 SCC 317);
 (3) the reform or rehabilitation of the convict is not likely or
 that he would be a menace to society (Jai Kumar(/ 999) 5
 SCC 1, B.A. Umesh (201 l) 3 SCC 85 and Mohd. Mannan
                                                                    E
 r2011) 5 sec   111);
 (4) the victims were defenceless (Dha11a11joy Chatterjee (1994)
 2 SCC 220, Laxman Naik (1994) 3 SCC 381, Kamta Tewari
 (1996) 6 sec 250, Ankush Mamti Shinde (2009) 6 SCC 667,
 Mohd. Mannan (2011) 5 SCC 317 and Rajendra Pralhadrao
 Wasnik (2012) 4 SCC 37);                                           F
 (5) the crime was either unprovoked or that it was premeditated
 (Dhananjoy Chatterjee (1994) 2 SCC 220, Laxman Naik
 (1994) 3 sec   381, Kamta Tewari (1996) 6 SCC 250, Nirmal
 Singh (1999) 3 SCC 670, Jai Kumar (1999) 5 SCC 1, Ankuslt
 Maruti Shinde (2009) 6 SCC 667, B.A. Umesh (2011) 3 SCC            G
 85 and Mohd. Mannan (2011) 5 SCC 317) and in three cases
 the antecedents or the prior history of the convict was taken
 into consideration (Shivu v. High Court of Karnataka (2007)
 4 SCC 713, B.A. Umeslt (2011) 3 SCC 85 and Rajendra
 Pra//radrao Wasnik (2012) 4 SCC 3 7). "
                                                                    H
318            SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A           135. We also refer to para (106) of Shankar Kisanrao Khade's
      case where Justice Madan B. Lokur (Concurring) has exhaustively
      analysed the case of rape and murder where death penalty was converted
      to that of imprisonment for life and some of the factors that weighed
      with the Court in such commutation. Para(! 06) reads as under:-
B           "106. A study of the above cases suggests that there are several
            reasons, cumulatively taken, for converting the death penalty to
            that of imprisonment for life. However, some of the factors that
            have had an influence in commutation include:
            (J) the young age of the accused [Amit v. State of Maharashtra
            (2003) 8 SCC 93 aged 20 years, Ra/111/ v. State of Maharashtra
c           (2005) JO SCC 322 aged 24 years, Suntosh Kumar Singh v.
            State (2010) 9 SCC 747 aged 24 years, Rameslibhai
            Chandubhai Rathod (2) (20ll) 2 SCC 764 aged 28 years and
            Amit v. State of U.P. (2012) 4 SCC I 0 7 aged 28 years];
            (2) the possibility of reforming and rehabilitating the accused (in
D           Santosh Kumar Singh (2010) 9 SCC 747 and Amit v. State of
            U.P.(2012) 4 SCC 107 the accused, incidentally, were young
            when they committed the crime);
            (3) the accused had no prior criminal record (Nirma/ Singh
            (1999) 3 SCC 670, Raju (2001) 9 SCC 50, Bantu (2001) 9
E           SCC 615, Amit v. State of Malwrashtra (2003) 8 SCC 93,
            Surendra Pal Shivba/akpa/ (2005) 3 SCC 12 7, Ra/ml (2005)
            10 SCC 322 and Amit v. State of U.P (2012) 4 SCC 107);
            (4) the accused was not likely to be a menace or threat or danger
            to society or the community (Nirma/ Singh (1999) 3 SCC 670,
            Mohd. Chaman (2001) 2 SCC 28, Raju (2001) 9 SCC 50,
 F
            Bantu (2001) 9 SCC 615, Surendra Pal Shivbalakpa/ (2005)
            3 SCC 127, Rahul (2005) 10 SCC 322 and Amit v. State of
            u.P. (2012; 4 sec 107).
            (5) a few other reasons need to be mentioned such as the accused
            having been acquitted by one of the courts (State ofT.N. v. Sures-/1
G           (1998) 2 SCC 372, State of Maharashtra v. Suresh (2000) I
            SCC 471, State of Maharashtra v. Bharat Fakira Dhiwar
            (2002) I SCC 622, State of Maharashtra v. Mansingh (2005)
            3 SCC 131 and Santoslz Kumar Singh (2010) 9 SCC 747);
            (6) the crime was not premeditated (Kumudi Lal v. State of U.P.
H           (1999) 4 SCC 108, Akhtar v. State of U.P. (1999) 6 SCC 60,
        MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                         319
                      [R. BANUMATHI, J.]

            Raju v. State of Haryana (2001) 9 SCC 50 and Amrit Singh v. A
            State of Punjab (2006) 12 SCC 79);
            (7) the case was one of circumstantial evidence (Mansingh
            (2005) 3 SCC 131 and Bis/mu Prasad Sinha (2007) 11 SCC
••          467).
            In one case, commutation was ordered since there was apparently B
            no "exceptional" feature warranting a death penalty (Kumudi
            Lal (1999) 4 SCC 108) and in another case because the trial
            court had awarded life sentence but the High Court enhanced it
            to death (Haresh Mohandas Rajput (20!1) 12 SCC 56)."
            136. In the same judgment in Sha11kar Kisanrao Khade v. State c
     of Maharashtra (2013) 5 SCC 546, Justice Madan B. Lokur
     (concurring) while elaborately analysing the question of imposing death
     penalty in specific facts and circumstances of that particular case,
     concerning rape and murder ofa minor, discussed the sentencing pol icy
     oflndia, with special reference to execution of the sentences imposed
     by the Judiciary. The Court noted the prima facie difference in the D
     standard of yardsticks adopted by two organs of the government viz.
     Judiciary and the Executive in treating the life of convicts convicted of
     an offence punishable with death and recommended consideration of
     Law Commission oflndia over this issue. The relevant excerpt from the
     said judgment, highlighting the inconsistency in the approach of Judicimy
                                                                                 E
     and Executive in the matter of sentencing, is as under:
            "148. It seems to me that though the Courts have been applying
            the rarest of rare principle, the Executive has taken into
            consideration some factors not known to the Courts for converting
            a death sentence to imprisonment for life. It is imperative, in this
            regard, since we are dealing with the lives of people (both the F
            accused and the rape-murder victim) that the Courts lay down a
            jurispmdential basis for awarding the death penalty and when the
            alternative is unquestionably foreclosed so that the prevailing
            uncertainty is avoided. Death penalty and its execution should not
            become a matter of uncertainty nor should converting a death G
            sentence into imprisonment for life become a matter of chance.
            Perhaps the Law Commission of India can resolve the issue by
            examining whether death penalty is a deterrent punishment or is
            retributive justice or serves an incapacitative goal."
           In Shankar Kisanrao 's case, it was observed by Justice Madan
                                                                                H
320             SUPREME COURT REPORTS                          [2017] 6 S.C.R.


A     B. Lokur that Dhananjay Chatterjee's case was perhaps the only
      case where death sentence imposed on the accused, who was convicted
      for rape was executed.
              137. Another significant development in the sentencing policy of
      India is the 'victim-centric' approach, clearly recognised in Machhi Singh
B     (Supra) and re-emphasized in a plethora of cases. It has been consistently
      held that the courts have a duty towards society and that the punishment
      should be corresponding to the crime and should act as a soothing balm
      to the suffering of the victim and their family. [Ref: Gurvail Singh@
      Gala and Am~ v. State of Punjab (2013) 2 SCC 713; Mohfil Khan
      and Anr. v. State of Jharkhand (2015) l SCC 67; Pumslwttam
c     Dashrath Borate and Anr. v. State of Maharashtra (2015) 6 SCC
      652]. The Courts while considering the issue of sentencing are bound to
      acknowledge the rights of the victims and their family, apart from the
      rights of the society and the accused. The agony suffered by the family
      of the victims cannot be ignored in any case. In Mohfil Khan (supra),
D     this Court specifically observed that 'it would be the paramount duty
      of the Court to provide justice to the incidental victims of the
      crime - the family members of the deceased perso1ls.
             138. The law laid down above, clearly sets forth the sentencing
      policy evolved over a period of time. I now proceed to analyse the facts
E     and circumstances of the present case on the anvil of above-stated
      principles. To be very precise, the nature and the manner of the act
      committed by the accused, and the effect it casted on the society and on
      the victim's family, are to be weighed against the mitigating circumstances
      stated by the accused and the scope of their reform, so as to reach a
      definite reasoned conclusion as to what would be appropriate punishment
 F    in the present case- 'death sentence', life sentence co11111111table to 14
      years' or 'life imprisonment for the rest of the life'.
             139. The question would be whether the present case could be
      one of the rarest of rare cases warranting death penalty. Before the
      court proceed to make a choice whether to award death sentence or Ii fe
G     imprisonment, the court is to draw up a balance-sheet of aggravating
      and mitigating circumstances attending to the commission of the offence
      and then strike a balance between those aggravating and mitigating
      circumstances. Two questions are to be asked and answered:- (i) Is
      there something uncommon about the crimes which regard sentence of
      imprisonment for life inadequate; (ii) Whether there is no alternative
H
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                              321
                 [R. BANUMATHI, J.]

punishment suitable except death sentence. Where a crime is committed           A
with extreme brutality and the collective conscience of the society is
shocked, courts must award death penalty, irrespective of their personal
opinion as regards desirability of death penalty. By not imposing a death
sentence in such cases, the courts may do injustice to the society at
large.
                                                                                B
       140. We are here concerned with the award of an appropriate
sentence in case of brutal gang-rape and murder of a young lady, involving
most gruesome and barbaric act of inserting iron rods in the private
parts of the victim. The act was committed in connivance and collusion
of six who were on a notorious spree running a bus, showcasing as a
public transport, with the intent of attracting passengers and committing       C
crime with them. The victim and her friend were picked up from the
Munirka bus stand with the malafide intent of ravishing and torturing
her. The accused not only abducted the victim, but gang-raped her,
committed unnatural offence by compelling her for oral sex, bit her lips,
cheeks, breast and caused h01Tifying injuries to her private parts by           0
inserting iron rod which ruptured the vaginal rectum, jejunum and rectum.
The diabolical manner in which crime was committed leaves one startled
as to the pervert mental state of the inflictor. On top of it, after having
failed to kill her on the spot, by running the bus over her, the victim was
thrown halfnaked in the wintery night, with grievous injuries.
        141. If we look at the aggravating circumstances in the present         E
case, following factors would emerge:
       ? Diabolic nature of the crime and the manner of committing crime,
          as reflected in committing gang-rape with the victim; forcing
          her to perform oral sex, injuries on the body oft he deceased by
          way ofbite marks; insertion of iron rod in her private parts and      F
          causing fatal injuries to her private parts and other internal
          injuries; pulling out her internal organs which caused sepsis
          and ultimately led to her death; throwing the victim and the
          complainant (PW-I) naked in the cold wintery night and trying
          to run the bus over them.
                                                                                G
       ?The brazenness and coldness with which the acts were
          committed in the evening hours by picking up the deceased and
          the victim from a public space, reflects the threat to which the
          society would be posed to, in case the accused are not
          appropriately punished. More so, it reflects that there is no scope
          ofrefonn.                                                             H
322             SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A           ~The horrific acts reflecting the in-human extent to which the
               accused could go to satisfy their lust, being completely oblivious,
               not only to the norms of the society, but also to the norms of
               humanity.
             ~The acts committed so shook the conscience of the society.

 B           142. As noted earlier, on the aspect of sentencing, seeking reduction
      of death sentence to life imprisonment, three of the convicts/appellants
      namely A-3 Akshay, A-4 Vinay andA-5 Pawan placed on record, through
      their individual affidavits dated 23.03.2017, following mitigating
      circumstances:-
             (a) Family circumstances such as poverty and rural background,
 c
             (b) Young age,
             (c) Current family situation including age of parents, ill health of
                 family members and their responsibilities towards their parents
                 and other family members,
 D           (d) Absence of criminal antecedents,
             (e) Conduct in jail, and
             (f) Likelihood ofreformation.
            In his affidavit, accused Mukesh reiterated his innocence and only
      pleaded that he is falsely implicated in the case.
 E         143. In Puruslwttam Dashrath Borate and Am~ v. State of
      Maharashtra (2015) 6 SCC 652, this Court held that age of the accused
      or family background of the accused or lack of criminal antecedents
      cannot be said to be the mitigating circumstance. It cannot also be
      considered as mitigating circumstance, particularly taking into
      consideration, the nature of heinous offence and cold and calculated
 F
      manner in which it was committed by the accused persons.
             144. Society's reasonable expectation is that deterrent punishment
      commensurate with the gravity of the offence be awarded. When the
      crime is brutal, shocking the collective conscience of the community,
      sympathy in any form would be misplaced and it would shake the
 G    confidence of public in the administration of criminal justice system. As
      held in Om Prakash v. State of Haryana ( 1999) 3 SCC 19, the Court
      must respond to the cry of the society and to settle what would be a
      deterrent punishment for what was an apparently abominable crime.
             145. Bearing in mind the above principles governing the sentencing
 H    policy, I have considered all the aggravating and mitigating circumstances
    MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.                             323
                  [R. BANUMATHI, J.]

in the present case. Imposition of appropriate punishment is the manner        A
in which the courts respond to the society's cry for justice against the
crime. Justice demands that the courts should impose punishments
befitting the crime so that it reflects public abhorrence of the crime.
Crimes like the one before us cannot be looked with magnanimity; Factors
like young age of the accused and poor background cannot be said to be
                                                                               B
mitigating circumstances. Likewise, post-crime remorse and post-crime
good conduct of the accused, the statement of the accused as to their
background and family circumstances, age, absence of criminal
antecedents and their good conduct in prison, in my view, cannot be
taken as mitigating circumstances to take the case out of the category
of"rarest of rare cases". The circumstances stated by the accused in           c
their affidavits are too slender to be treated as mitigating circumstances.
        146. In the present case, there is not even a hint of hesitation in
my mind with respectto the aggravating circumstances outweighing the
mitigating circumstances and I do not find any justification to convert
the death sentence imposed by the courts below to 'life imprisonment D
for the rest of the life'. The gruesome offences were committed with
highest viciousness. Human lust was allowed to take such a demonic
form. The accused may not be hardened criminals; but the cruel manner
in which the gang-rape was committed in the moving bus; iron rods
were inserted in the private parts of the victim; and the coldness with
which both the victims were thrown naked in cold wintery night of E
December, shocks the collective conscience of the society. The present
case clearly comes within the category of 'rarest of rare case' where
the question of any other punishment is 'unquestionably foreclosed'. If
at all there is a case warranting award of death sentence, it is the present
case. If the dreadfulness displayed by the accused in committing the F
gang-rape, unnatural sex, insertion of iron rod in the private parts of the
victim does not fall in the 'rarest of rare catego1y', then one may wonder
what else would fall in that category. On these reasoning recorded by ·
me, I concur with the majority in affirming the death sentence awarded
to the accused persons.
         14 7. The incident of gang-rape on the night of 16.12.2012 in the G
capital sparked public protest not only in Delhi but nation-wide. We live
in a civilized society where law and order is supreme and the citizens
enjoy inviolable fundamental human rights. But when the incident of
gang-rape like the present one surfaces, it causes ripples in the conscience
of society and serious doubts are raised as to whether we really live in a     H
324              SUPREME COURT REPORTS                            [2017] 6 S.C.R.



A     civilized society and whether both men and women feel the same sense
      ofliberty and freedom which they should ha'Ve felt in the ordinary course
      of a civilized society, driven by rule of law. Certainly, whenever'Sucl!"
      grave violations of human dignity come to fore, an unknown sense of
      insecurity and helplessness grabs the entire society, women in particular,
      and the only succour people look for, is the State to take ccininiand of the
 B
      situation and remedy it effectively.
             148. The statistics of National Crime Records Bureau which I
      have indicated in the beginning of my judgment show that despit.e the
      progress made by women in education and in various fields and changes
      brought in ideas of women's rights, respect for women is on the decline
 C    and crimes against women are on the increase. Offences against women
      are not a women's issue alone but, human rights issue. Increased rate of
      crime against women is an area of concern for the law-makers and it
      points out an emergent need to study in depth the root of the problem
      and remedy the same through a strict 18w and order regime. There are
D     a number of legislations and numerous penal provisions to punish the
      offenders of violence against women. However, it becomes. important
      to ensure that gender justice does not remain only on paper.
              149. We have a responsibility to set good values and guidance for
      posterity. In the words of great scholar, Swami Vivekananda, "the best
      thermometer.to the progress of a nation is its treatment of its women."
.E    Crime against women not only affects women's self esteem and dignity
      but also degrades the pace of societal development. 1 hope that this
      gruesome incident in the capital and death of this young woman will be
      an eye-opener for a mass movement "to end violence against women"
      and "respect for women and her dignity" and sensitizing pub Iic at
F     large on gender justice. Every individual, irrespective of his/her gender
      must be willing to assume the responsibility in fight for gender justice
      and also awaken public opinion on gender justice. Public at large, in
      particular men, are to be sensitized on gender justice. The battle for
      gender justice can be won only with strict implementation oflegislative
      provisions, sensitization ofpublic, taking other pro-active steps at all levels
G     for combating violence against women and ensuring widespread attitudinal
      changes and comprehensive change in the existing mind set. We hope
      that this incident will pave the way for the same.
      Devika Gujral                                                 AppCais dismissed.